Cheal v. El Camino Hospital

Filed 1/31/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

CAROL CHEAL, H036548

(Santa Clara County

Plaintiff and Appellant, Super. Ct. No. CV14348)

v.

EL CAMINO HOSPITAL,

Defendant and Respondent.

Plaintiff Carol Cheal brought this action for age discrimination against her former

employer, defendant El Camino Hospital. Defendant successfully prevailed upon the

trial court to grant summary judgment in its favor despite numerous materially disputed

facts. As too often happens, the merits of the case were obscured to the point of

invisibility in the deluge of statements, counter-statements and objections, that mark

modern summary judgment practice. The record clearly raises triable issues of fact with

respect to whether plaintiff was performing adequately at the time of her discharge and

whether the discharge was the product of a belief to the contrary or of discriminatory

animus against older workers on the part of plaintiff’s immediate supervisor. We will

therefore reverse the judgment.

BACKGROUND

Plaintiff worked in defendant’s Nutrition Services Department from August 1987

until her discharge in October 2008 at age 61. At all relevant times she held the position

of Dietetic Technician Registered, or “Diet Tech.” For present purposes it may be

assumed, as defendant asserts, that her duties were the same as those of a “menu clerk” or

“Diet Clerk[].” They involved the preparation of menus for patient meals, while adhering

to procedures intended to ensure that the correct foods reached the correct patients.

Up to and including her performance evaluation in August 2007, plaintiff always

received a rating of “Meets Standards,” which she declared without contradiction was

“the highest category of performance on the Hospital’s ‘Performance Evaluation.’ ” But

things changed after July 2007, when defendant hired Kim Bandelier to supervise all

employees on the clinical side of nutritional services, including plaintiff. By

January 2008, Bandelier was accusing plaintiff of numerous shortcomings. On

April 14, 2008, Bandelier gave plaintiff a written warning for failure to conform to the

hospital’s “two-patient identifier procedure,” discussed in more detail below (see

pt. II(E)(2), post). On June 3 she issued a second, “[f]inal” warning for failure to comply

with the same procedure.

On Monday, September 8, 2008, Bandelier accused plaintiff of incorrectly

preparing one or more menus for a patient restricted to “pudding thick” liquids, in a

manner that allowed, or could have allowed, the patient to receive thinner, “honey thick”

liquids. On September 25, 2008, a hospital manager told plaintiff that she was no longer

considered competent to perform her duties as a diet clerk or diet tech, and that she could

either take another position in the nutrition services department, accept a severance

package, or be discharged. About a week later, plaintiff informed defendant that any

further communication should go through her attorney. On October 10, 2008, defendant

notified plaintiff that her employment was terminated.

Plaintiff filed this action on April 30, 2009, asserting causes of action for age

discrimination, wrongful demotion and termination, failure to investigate or take

corrective action against age discrimination, and retaliation for complaints of unlawful

discrimination. Defendant answered with a general denial and 14 affirmative defenses.

2

On August 13, 2010, defendant filed a motion for summary judgment, asserting 77

supposedly undisputed facts in support. Plaintiff responded to each of these assertions

and submitted 37 additional facts that she contended precluded summary judgment. Each

party lodged numerous objections to the evidence put forth by the opposing party. The

court issued an order sustaining some objections, overruling the rest, and granting the

motion for summary judgment. The court wrote that summary judgment was warranted

because (1) “[p]laintiff fail[ed] to show she performed her job in a satisfactory manner”;

(2) defendant “establishe[d] a legitimate, nondiscriminatory reason for its actions” while

“[p]laintiff . . . [did] not produce substantial evidence that Defendant’s stated reasons

were untrue or pretextual, or that Defendant acted with a discriminatory animus” (italics

in original); (3) having failed to make a prima facie case of age discrimination, plaintiff

could not establish her claims for wrongful termination and failure to investigate or take

corrective action; and (4) because plaintiff had already been “disciplined on numerous

occasions” when she first complained, plaintiff could not make out a cause of action for

unlawful retaliation.

Plaintiff filed this timely appeal.

DISCUSSION

I. General Principles

“ ‘We summarized the principles governing an appeal of this type in Reeves v.

Safeway Stores (2004) 121 Cal.App.4th 95, 106–107 [16 Cal.Rptr.3d 717] (Reeves): “On

appeal from an order granting summary judgment ‘we must independently examine the

record to determine whether triable issues of material fact exist. [Citations.]’ [Citation.]

The question is whether defendant ‘ “ ‘conclusively negated a necessary element of the

plaintiff’s case or demonstrated that under no hypothesis is there a material issue of fact

that requires the process of trial.’ [Citation.]” [Citation.]’ [Citations]; (see Guz v.

Bechtel National Inc. (2000) 24 Cal.4th 317, 335, fn. 7 [100 Cal.Rptr.2d 352, 8 P.3d

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1089], . . . (Guz) [‘the issue . . . is simply whether, and to what extent, the evidence

submitted for and against the motion . . . discloses issues warranting a trial’].) . . .

[Citation.] Moreover, ‘we must view the evidence in a light favorable to plaintiff as the

losing party [citation], liberally construing [his] evidentiary submission while strictly

scrutinizing defendants’ own showing, and resolving any evidentiary doubts or

ambiguities in plaintiff’s favor. [Citations.]’ [Citations.] And a plaintiff resisting a

motion for summary judgment bears no burden to establish any element of his or her case

unless and until the defendant presents evidence either affirmatively negating that

element (proving its absence in fact), or affirmatively showing that the plaintiff does not

possess and cannot acquire evidence to prove its existence. [Citations.]” ’ (Mamou v.

Trendwest Resorts (2008) 165 Cal.App.4th 686, 710-711, 81 Cal.Rptr.3d 406 (Mamou).)

In determining whether a triable issue was raised or dispelled, we must disregard any

evidence to which a sound objection was made in the trial court, but must consider any

evidence to which no objection, or an unsound objection, was made. (See Reid v. Google

[(2010)] 50 Cal.4th 512, 534, 113 Cal.Rptr.3d 327, 235 P.3d 988; Code of Civ. Proc.,

§ 437c, subds. (b)(5), (c), (d).) Such evidentiary questions, however, are subject to the

overarching principle that the proponent’s submissions are scrutinized strictly, while the

opponent’s are viewed liberally.’ ” (McCaskey v. California State Auto. Assn. (2010) 189

Cal.App.4th 947, 956-957.)

II. Unsatisfactory Performance

A. Introduction

The first and primary ground cited by the trial court for its entry of summary

judgment was this: “As Plaintiff made several mistakes on menus between January and

May in 2008, Plaintiff fails to show she performed her job in a satisfactory manner.”

Competent performance is part of a plaintiff’s “prima facie case of discrimination” (Guz,

supra, 24 Cal.4th at p. 354) under the special burden-shifting analysis devised in

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McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-804 (McDonnell Douglas).

Under that approach, an employment discrimination plaintiff raises a presumption of

liability by “provid[ing] evidence that (1) he was a member of a protected class, (2) he

was . . . performing competently in the position he held, (3) he suffered an adverse

employment action, such as termination, demotion, or denial of an available job, and

(4) some other circumstance suggests discriminatory motive. [Citations.]” (Guz, supra,

at p. 355.)

The trial court thus ruled that plaintiff would be unable at trial to establish the

second factor, i.e., that she was “performing competently in the position [s]he held.” 1

This contention necessarily implicates two constituent questions: What could a trier of

fact find to be a competent level of performance; and what level of performance did the

plaintiff actually render? We turn now to those questions.

B. Standard of Competent Performance

What constitutes satisfactory performance is of course a question ordinarily vested in the

employer’s sole discretion. An employer is free to set standards that might appear

unreasonable to outside observers, and to discipline employees who fail to meet those

1

Although it is often convenient to view the evidence in such cases under the lens

of McDonnell Douglas and Guz—and that is the framework within which the issues were

framed and decided below—that approach is not mandatory and need not hamstring

either the parties or the court. “[W]hen a plaintiff in a discrimination case has direct

evidence of discrimination as well as the indirect evidence required to make out a prima

facie case under McDonnell Douglas he does not have to show that either approach,

taken in isolation from the other, makes out a prima facie case—he can combine them.

‘Any demonstration strong enough to support a judgment in the plaintiff’s favor if the

employer remains silent will do, even if the proof does not fit into a set of pigeonholes.’

[Citations.] ‘Despite the minutiae of the various proof schemes set forth in McDonnell

Douglas . . . the straightforward question to be answered in discrimination cases is

whether the plaintiff has successfully demonstrated that she was the victim of . . .

discrimination on the part of the employer.’ [Citation.]” (Simple v. Walgreen Co. (7th

Cir. 2007) 511 F.3d 668, 670-671 (Posner, J.).)

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standards, so long as the standards are applied evenhandedly. But that does not mean that

an employer conclusively establishes the governing standard of competence in an

employment discrimination action merely by asserting that the plaintiff’s performance

was less than satisfactory. Evidence of the employer’s policies and practices, including

its treatment of other employees, may support a contention, and an eventual finding, that

the plaintiff’s job performance did in fact satisfy the employer’s own norms. Such a

finding not only carries the plaintiff’s burden to show competence under the McDonnell

Douglas/Guz analysis; it also grounds an inference that the true motive for the challenged

action lay somewhere else, as in discriminatory animus.

Here the trial court concluded that plaintiff had failed to show competent

performance because the evidence showed that she “made several mistakes on menus

between January and May in 2008.” But aside from triable issues concerning the number

and magnitude of the “mistakes” she made (discussed below), there was strong evidence

before the court that the hospital, under its own written policies, anticipated and expected

such mistakes because, given the nature of the work, they were inevitable. According to

plaintiff’s uncontradicted account, the hospital prepared about 500 meals a day, which

required processing 500 menus. Of these, perhaps a third were “special diets.” Each

food selected by a patient on a special diet had to be checked against, and modified if

necessary to conform to, the physicians’ orders for that patient. As a result, plaintiff

declared, “errors by all Diet Office staff invariably resulted.” For this reason, the hospital

relied on a multi-tiered system of safeguards in which “tally clerk[s]” reviewed the work

of menu clerks, a “checker” on the kitchen staff compared tray contents to menu entries,

and the nurses, who actually delivered the trays to special-diet patients, assumed “the

final responsibility for the check of the food tray.” This statement is substantiated by a

copy of a written policy attached to, and identified in, plaintiff’s declaration. It states that

upon delivery of a meal tray to the nursing station, “Nursing staff is responsible for

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immediately confirming the accuracy of each tray by checking the menu heading, room

number, name and diet order on each menu, with the most recent diet order for that

patient.”2

Indeed, plaintiff offered something of a smoking gun on this point in the form of

the hospital’s printed evaluation form for the diet tech position, which prescribed the

acceptable rate for certain types of errors. Of seemingly greatest pertinence here is the

notation, under “menu writing skills,” that the diet tech “uses appropriate food

consistencies and compositions in accordance with patient’s diet orders and age with less

than one error per day.” (Emphasis added.) Similar notations appear under “meal tray

checking skills” (“less than two errors per meal”), “nourishment (NX) checking skills”

(“less than one error per day”), and use of “MIS and diet office PC” (“less than one error

per day”). These entries alone seem to belie the trial court’s rationale, i.e., that “several

mistakes on menus” over a period of four or five months precluded a finding that plaintiff

had rendered satisfactory performance.

Also bearing on this subject was evidence of the pervasiveness of similar errors by

other hospital employees performing similar work. Although neither side attempted to

quantify these rates, plaintiff declared with respect to the two patient identifier

requirement, violations of which formed the basis for the two written warnings she

2

The trial court sustained relevance and foundational objections both to plaintiff’s

averments on this subject and to the written policy cited by her. But the evidence was

clearly relevant, since the existence of multiple safeguards bears on the inevitability of

errors by workers performing plaintiff’s duties, and thus the extent to which her job

performance met, or fell short of, the standards imposed on those workers by the hospital.

As for the objection of insufficient foundation, plaintiff had worked in the hospital’s food

services department for some 21 years. She was presumably familiar, from her own

firsthand professional experience, with its policies and practices, and there is no reason to

suppose she was not familiar with its written policies. For purposes of summary

judgment, her identification of the attachment as “[a] true and correct copy of the

Hospital’s policy on this matter” must be accepted at face value.

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received (see pt. II(C)(2), post), “I have personal knowledge that other Diet Staff (diet

clerks, menu clerks and tally clerks) had problems with and frequently failed to follow

the ‘two patient identifier’ system as required by Ms. Bandelier.’ ” Of the five other

workers in the department, all but one were under 40 years of age. Plaintiff declared,

“When I presented copies of the menu mistakes by these other Diet Staff employees to

Ms. Bandelier, she made excuses for these other, younger workers’ mistakes. While I

received discipline and written warnings for failing to follow the ‘two patient identifier’

system, to my knowledge no other Diet Clerk was disciplined by way of a written

warning for failing to follow the two patient identifier systems.”3

Much of defendant’s evidence seems intended to suggest that the errors attributed

to plaintiff were unacceptably grave because they implicated patient safety. No attempt

was made, however, to quantify either the number or potential seriousness of mistakes

committed by other persons performing duties similar to plaintiff’s, or to otherwise

identify anything like a quantitative standard to which plaintiff’s performance might be

compared. The only benchmark suggested by the record is the performance evaluation

form, which suggests that errors of the type attributed to plaintiff would be acceptable at

3

Plaintiff also introduced evidence that Bandelier herself said more than once that

“we all,” referring to everyone in the department, “make[] mistakes.” The trial court

sustained a hearsay objection to plaintiff’s direct averment of this fact—a ruling which

appears unsound since the quoted utterances appear to constitute statements on a subject

as to which Bandelier was authorized to speak on defendant’s behalf to persons under her

supervision. (See Evid. Code, § 1222.) In any event the court properly overruled

objections, on grounds of relevance and lack of authentication, to the exhibit in which

Bandelier’s statements were recorded. The document was obviously relevant, and

plaintiff adequately authenticated it by identifying it under penalty of perjury as

“Ms. Bandelier’s Diet Office Meeting notes.” Even if more than this were required, the

document bears the initials of a “Carol C.”—as well as those, apparently, of other

meeting attendees—grounding an inference that plaintiff had seen it before. (See Evid.

Code, § 1400 [“Authentication of a writing means (a) the introduction of evidence

sufficient to sustain a finding that it is the writing that the proponent of the evidence

claims it is . . . .”].)

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a rate of “less than one . . . per day.” Defendant has never suggested that plaintiff

committed such errors with anything approaching a daily or even weekly frequency. For

this reason alone, the trial court’s chief rationale for granting summary judgment cannot

be sustained.

C. Plaintiff’s Actual Performance

1. “Coachings”

In addition to triable issues over the performance standards governing plaintiff’s

work, the record presents substantial evidentiary conflicts over the extent to which

plaintiff actually committed the “several errors” found by the trial court. Bandelier’s

declaration and its attachments suggest, by our count, 19 distinct areas or incidents of

unsatisfactory performance. Sixteen of these consist of “coachings” Bandelier assertedly

“conducted with” plaintiff as recited in an email Bandelier prepared for a supervisor as

plaintiff’s discharge neared. Bandelier cited the e-mail in her declaration in support of an

averment that “[a]lmost immediately upon my arrival, I had to counsel Ms. Cheal on

mistakes and patient-safety related problems with her job performance.” The intended

implication, obviously, is that many of the “coaching” occasions pointed to an instance or

area of unsatisfactory performance.

Nearly every item on the e-mailed list, however, was squarely controverted by

plaintiff. The first entry, “soiled menus,” is manifestly intended to suggest that on the

date specified, plaintiff had been guilty of improperly using such menus. Plaintiff flatly

denied that she had done so, and that she had been “coached” for doing so. She

declared, “I was not ‘counseled’ about using soiled menus . . . because I did not have any

soiled menus I was working with. Rather, during a conversation about overtime,

Ms. Bandelier simply stated that when there is a soiled menu (e.g. due to a liquid spill,

coffee, etc.) a new one should be prepared. This conversation . . . did not relate to any

work I was doing that day or recently.” In other words, Bandelier had taken an abstract

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statement she made about best practices, described it as “coaching,” and cited it as

somehow reflective of unsatisfactory performance.

Another entry referred to a “coaching” in September 2007 for “allowing grapefruit

juice on menu,” which the e-mail described as a “HUGE no no” and “a patient safety

issue.” Bandelier’s declaration also contains an averment that on an unspecified date,

plaintiff “allow[ed] grapefruit juice on a diet for which grapefruit was specifically

forbidden.” Plaintiff flatly denied that she did any such thing, stating that if a patient had

actually received grapefruit juice in violation of a medical restriction, the patient “must

have orally requested the juice via the nurse or dietician to the Diet Office.” She referred

to Bandelier’s own handwritten notes of the incident, which as most pertinent here stated

only that grapefruit juice had, according to an unidentified source, been “ordered and

tallied this weekend.”4 Bandelier wrote that she had “spoke[n] w/ [with] Carol [ plaintiff]

& asked her to remind” two other workers, presumably, to watch for such errors.

Bandelier also expressed the intention to “send email to all diet office staff.” For

purposes of summary judgment, plaintiff’s averment that she had no involvement in any

such error concludes the issue whether this was an instance of unsatisfactory

performance. 5

4

According to plaintiff, “tallying” is a step in which a “ ‘tally clerk’ would

review all menus, input the appropriate information from the menus into the computer

system, and place the orders with the kitchen to prepare the foods required for the next

day’s meals.”

5

Typical of defendant’s approach on appeal is its complete disregard of plaintiff’s

controverting evidence while asserting as an established fact that “she made several

significant menu errors, such as allowing grapefruit juice on a diet that forbade

grapefruit.” If defendant persuades a jury of this fact, the finding will be entitled to the

presumption of correctness in any ensuing appeal. On appeal from summary judgment,

however, defendant’s assertions on this point are a legal nullity.

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The e-mail also referred to a “coaching” on “consistent carb diets.” Again the

implication is that plaintiff was doing something wrong, though defendant makes no

attempt to explain the entry. The sole explanation comes from plaintiff, who declared,

“This alleged ‘coaching’ had nothing to do with any ‘mistake’ or ‘patient safety incident’

by me. Rather, it relates solely to Bandelier’s objection to a long-standing Hospital

policy . . . . On this day, I prepared a diabetic patient’s menu according to the long-

standing Hospital policy. . . . Bandelier took issue with how the diet staff (specifically

me) prepared diabetic menus. When I explained to Bandelier that I had prepared the

patient’s menu in accordance with the Hospital’s long-standing policy, she stated, ‘Oh, I

didn’t know that. But you are still wrong.’ I replied, ‘Well, if I am wrong, then the whole

diet office is wrong, because that is how I was trained by the dieticians.’ Ms. Bandelier

then stated that going forward we must insure that a diabetic patient is limited to 3-4

carbs per meal. I did not disagree with Ms Bandelier’s change to the Diet Office’s

practice, and followed it consistently thereafter. . . .”

A trier of fact could reasonably find that other “coachings” were likewise

unrelated to any breach of existing performance standards but were reflective instead of

Bandelier’s introduction of new practices. Thus Bandelier cited plaintiff’s “fail[ure] to

stamp menus with the name of a drug (Warfarin) that affected what foods were allowed

on the patient’s menu.” But according to plaintiff, this reflected Bandelier’s “instituting a

new policy . . . that never existed before.” Similarly, Bandelier’s e-mail indicates that

plaintiff had to be “coached” about “[m]iss[ing] . . . allergies 3 times (patient safety).”

Again defendant chose not to favor the court with further explanation, apparently trusting

the lack of detail to create a durable impression of deficient performance. But according

to plaintiff this entry referred to her failure to stamp the word “allergy” on certain

menus—a step for which there was, again, no existing requirement. Instead, she

declared, the erstwhile practice was to address food allergies by specifying the foods the

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patient was required to avoid; thus the office “had stamps for ‘No Milk’, ‘No dairy

products’, ‘No milk to drink’ etc.”

Other “coachings” could easily be viewed by a trier of fact as so trivial that their

recordation was more suggestive of persecution than of anything resembling legitimate

concern with performance. The entry about “soiled menus” might easily fall in this

category. Two other entries in the e-mailed list consist of bare allusions to a “dirty work

station.” Again plaintiff’s explanation for the entry stands uncontested: One incident

occurred when “before I went to lunch I took a clean and unused mask from my pocket

and placed it on my desk. . . . On the other occasion as I arrived to work I pulled my

gloves out of my pocket and put them on my desk. I had not even sat down yet when Ms.

Bandelier noticed my glove and told me to keep my area clean. Ms. Bandelier reminded

us all to keep our work stations clean as they were shared by others. I followed her

instructions and did not leave a dirty work station.”

The last incident listed in Bandelier’s memo occurred in July 2008 and is

described only as “Lemon wedge on neutropenic diet.” No attempt has been made to

substantiate this incident, which plaintiff contends was entirely fabricated. She declared,

“Ms. Bandelier approached me in the Diet Office and stated, ‘I don’t know what patient it

is or what room number, but you allowed a lemon wedge on a patient’s menu.’[6] I would

6

The trial court erred when it sustained defendant’s hearsay objection to this

statement. The first test for hearsay is whether the extrajudicial statement is being

offered for the truth of the matter asserted. (Evidence Code section 1200, subd. (a).)

Here the matter asserted was that that plaintiff left a lemon wedge on a tray. Plaintiff

obviously did not offer the evidence to prove this assertion, but rather as evidence that

Bandelier had falsely accused her of the described conduct. A statement offered for such

a purpose can never offend the rule against hearsay.

On appeal defendant does not defend the error induced by its meritless hearsay

objection, contending instead that the lemon wedge accusation is a “red herring,” and

plaintiff’s references to it “[i]nexplicabl[e],” because “Plaintiff received no discipline for

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not have allowed a lemon wedge on such a diet and in fact when she stated she did not

know who it was, I undertook to investigate the issue, found the only patient’s room with

that diet on the 6th floor and questioned the nurse . . . about the patient’s tray. The nurse

stated the patient in question was no longer neutropenic. Ms. Bandelier never showed me

the menu with the lemon wedge order, despite my request.” Although defendant’s

hearsay objection to the penultimate sentence was properly sustained, plaintiff’s

declaration nonetheless supports an inference that she investigated Bandelier’s accusation

and was unable to find any factual basis for it. That evidence tended to refute the

accusation.

2. “Two Patient Identifier” Violations

Several of the alleged performance deficiencies, including both of the written

warnings preceding plaintiff’s discharge, consisted of failures to strictly comply with the

“two patient identifier” procedure introduced by Bandelier. According to Bandelier, this

procedure required menu clerks to mark restricted-diet menus with the patient’s first and

last name and date of birth so that the person delivering the meal could use that

information to confirm the identity of the patient to whom it was delivered. The date of

birth was to be marked with a highlighter in order to flag the menu as a special one and to

make the information easier to find. Apparently this information was to be written not

only once on a menu sheet but three times, i.e., next to each meal. Plaintiff declared

without contradiction that the policy only applied to patients with certain medically

restricted diets, i.e., those with “dysphagi[a] [difficulty swallowing properly], bariatric

stage I and II, food allergies and drug interaction.”

Plaintiff conceded that in the first few months after the policy’s adoption, she did

not always strictly conform to it, sometimes failing in particular to enter a patient’s first

the issue.” Bandelier herself cited this supposed incident in her memorandum, and by

reference in her declaration, as evidence of deficient performance.

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name or to mark the date of birth with a highlighter. However, she declared, “I have

personal knowledge that other Diet Staff (diet clerks, menu clerks and tally clerks) had

problems with and frequently failed to follow the ‘two patient identifier’ system as

required by Ms. Bandelier.” Bandelier acknowledged that plaintiff commented on the

pervasiveness of these errors by other workers, but declared that she “repeatedly advised

Ms. Cheal that if Diet Clerks or other employees made mistakes in their work, it was

Ms. Cheal’s responsibility to report those mistakes.” How Bandelier responded to

plaintiff’s reports is somewhat beside the point, though a trier of fact might find an

interesting discrepancy in the seeming fact that Bandelier hunted down plaintiff’s errors

on her own initiative, while leaving the errors of younger workers to be discovered and

reported, if at all, by others. The more pertinent question is whether defendant

established that plaintiff’s infractions of the policy exceeded the hospital’s norms—as

established, for instance, by the rate and severity of errors committed by other workers.

Defendant plainly failed to establish the absence of a triable issue of fact on this point. In

addition to plaintiff’s testimony—and Bandelier’s acknowledgment of plaintiff’s

contemporaneous reports—a tally clerk testified that in her estimation, another menu

clerk “made a lot of mistakes too”—probably more than plaintiff. There is no suggestion

that the identified clerk received anything like the disciplinary attention Bandelier

devoted to plaintiff.

A factfinder could also conclude that Bandelier substantially exaggerated the

number and severity of plaintiff’s violations of the two patient identifier policy—or at

least that defendant failed to substantiate the number and severity claimed. Bandelier

declared that on April 8, 2008, plaintiff committed violations “on six different menus.”

According to plaintiff, however, the first two menus were not subject to the two patient

identifier procedure. The first involved a patient on a “Dental/Mech soft diet,” which

according to plaintiff, “is not considered a ‘special diet.’ ” The second involved a

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liquids-only diet which, according to plaintiff, required special handling obviating the

two patient identifier entries required for the restricted diets subject to the protocol.

Plaintiff concedes that on the third of the six menus, the two patient identifier

information, though present, lacks highlighting on “one of the three menus,” i.e., the

space for one of the three meals listed on the page. In other words, the required

information was presented—and properly highlighted—at two other points on the same

page.

Plaintiff points out quite correctly that redactions on the next two menus render

them incompetent or at best ambiguous with respect to the claimed errors. One of them

bears an apparent sticky note with the handwritten legend, “No b-day [¶] No 1st name.”

However, on the copy in the record, what appears to be a rectangular redaction mark

appears at or near two of the three places where a date of birth would apparently be

entered. This supports an inference that the information was lacking, at most, from one

of the three redundant locations. On the next menu a sticky note contains the legend,

“Need 1st name,” but since the names have been entirely obliterated it is impossible to

tell whether the first name was missing from all three meals or only one meal. The last

menu bears a sticky note saying “No b-date,” and no obvious redactions where a

birthdate might appear. But as to it, too, plaintiff observes with some justice that given

defendant’s redactions, it is impossible to verify Bandelier’s characterization of the

document.

In an attempt to fill this evidentiary vacuum, Bandelier declared that she had

“reviewed the color copies of the menus in my file, which contain the unredacted

patients’ names and show the absence of some highlighted birth dates to confirm that

these are the menus that correspond to this disciplinary action.” (Italics added.) This

proves at most that “some highlighted birth dates” were absent from one or more of the

15

six menus, or more precisely, from one or more of the 18 places where this information

should have appeared.

In any event there is no suggestion that plaintiff failed to observe the two patient

identifier protocol after June 8, 2008. The evidence thus supports an inference that, even

if she was slower to adapt to the protocol than other employees—a premise defendant has

failed to show is free of factual controversy—she had come into full compliance some

four months before her discharge.

3. Wrong Liquids Incident

Plaintiff also raised a triable issue of fact whether the incident immediately

preceding her discharge constituted an instance of deficient performance. The more-or-

less undisputed facts concerning this incident appear to be these: A medical order was

issued on Friday, September 5, 2008, restricting the patient in room 310A to “pudding

thick” liquids. Plaintiff prepared the patient’s menus that day and the next day, which

covered meals on September 6 and 7. There is no competent evidence that either of these

menus was in any manner deficient.

On Monday, September 8, a speech therapist apparently reported to Bandelier that

she had observed “honey thick” liquids on the patient’s tray, instead of the “pudding

thick” liquids to which the patient was restricted. Assuming this reflected an error in the

patient’s menu, the menu would have been prepared the previous day by one Rebecca.

Several hours after learning of the matter, and near the end of the shift, Bandelier went to

the menu office, where plaintiff was still working on menus for the next day’s meals.

Bandelier found the menu for room 310A, and saw that it had been stamped “Thick

Liquid (honey consist.),” with no notation of the “pudding thick” restriction. She showed

the menu to plaintiff, along with the nutrition order restricting the patient to pudding

thick liquids.

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Apart from these facts, the parties’ versions and interpretations of events diverge

materially. First, a conflict exists with respect to what the speech therapist told Bandelier

concerning the erroneous liquids she apparently observed. According to Bandelier, the

therapist told her that the patient had been fed the wrong liquids “over the previous

weekend” and that “the improper thickness of the liquid contributed to a fluid build-up in

the patient’s lungs and aggravated her medical condition.”7 The speech therapist,

however, testified in deposition that while she might have told Bandelier the patient had

“gunk in her lungs,” that was a medical condition predating the dietary restriction and not

something she attributed, or could have attributed, to any error in feeding.8 Nor is there

7

The trial court sustained a hearsay objection to these statements, but the only

proper effect of that objection would be to prevent the admission of Bandelier’s

statements as proof of the matters supposedly reported by the speech therapist. Those

statements remained admissible and highly relevant to support an inference that

Bandelier did not accurately record or relate what she had actually been told.

8

Defendant objected successfully to the speech therapist’s deposition testimony

on the ground that it was irrelevant—an assertion we emphatically reject. Bandelier’s

declaration recapitulates for nearly three pages her investigation of the original supposed

error, and attaches and ratifies another 19 pages of contemporaneous documentation.

These accounts include the repeated attribution of statements to the speech therapist to

the effect that the patient had in fact been fed the wrong liquid, that this had gone on all

weekend, that the patient had inhaled some of this material, and that medical

complications had resulted. It is true that Bandelier then purported to disclaim any

reliance on these materials, averring that “although it was important for me as a manager

to understand what had happened with the patient over the weekend, I did not attribute

any menu-related error by Ms. Cheal other than on September 8, 2008.” But this

disclaimer was disingenuous to say the least. On appeal defendant continues to assert as

a fact that the patient “had been given ‘honey-thick’ fluids all weekend,” and that this had

“contributed to a fluid build-up in the patient’s lungs,” “aggravat[ing] her medical

condition.” A party cannot open the door to an issue in an effort to portray events in a

particular light and then slam the door shut on his opponent merely by asserting that he

does not really place any reliance on the matters thus introduced. Having suggested that

plaintiff bore responsibility for a series of injurious errors, defendant could not exclude,

on relevance grounds, controverting evidence. The trial court erred in allowing itself to

be trifled with in this manner.

17

any evidence, other than Bandelier’s account, that she told Bandelier the patient had

actually ingested any improper food. She denied telling Bandelier anything about what

the patient might have eaten over the weekend. According to Bandelier, the therapist told

her that the nurse responsible for the patient had said “that the ‘honey thick’ liquids

presented on the patient’s tray on the morning of September 8th were the ‘same as what

the patient had been getting all weekend.’ ” But the nurse supposedly named by the

therapist, when questioned, disclaimed any memory of the patient.9

In any event there was ample competent evidence that plaintiff committed no

menu errors on the weekend of September 5-7. She declared without contradiction that

she correctly prepared the patient’s menu on September 5 and 6. On at least one of those

days, a tally clerk recalled seeing a menu correctly marked by plaintiff with the legend

“pudding thick.” If an erroneous menu was prepared on September 7—affecting the

meals served on September 8—it was prepared by Rebecca. Although defendant made

some attempt to imply that plaintiff might bear some responsibility for the posited error

by Rebecca, that suggestion was wholly ineffectual to sustain a summary judgment.10

9

The nurse testified in deposition that according to his timecards, he had not

worked in the wing including room 310A on the weekend of September 5-7. The trial

court sustained objections to this testimony on the ground that it constituted improper

secondary evidence of the contents of a writing. It is true that the witness seemed to be

testifying more about the contents of the timecards than about his own knowledge and

recollection of events. But with a proper foundation, the timecards themselves would

presumably be admissible either as business records or as past recollection recorded. We

do not believe a curable objection going merely to the form of evidence should be

allowed to play a dispositive role in securing summary judgment. It benefits no one but

the original defendant to dismiss a substantively meritorious action for damages only to

generate a new action for legal malpractice.

10

Bandelier declared that Rebecca had been trained by plaintiff, apparently

implying that any errors by the former were attributable to the latter. Apart from the

questionable logic on which this implication rests, plaintiff declared that she was

responsible for only two of Rebecca’s six days of relevant training. Bandelier also

declared that when questioned about the September 7 menu, Rebecca said she did not

18

It follows that if any error was to be attributed to plaintiff with respect to room

310A—based on this record—it had to rest on the premise that plaintiff prepared an

erroneous menu on Monday, September 8. As to that issue, plaintiff raised a triable issue

by asserting that she had not yet finished with the menu when Bandelier intervened in its

preparation. Plaintiff declared, “Because I had not yet completed my ‘review’ process of

all menus, I had not yet written ‘pudding’ by the ‘thick’ stamp, which was my custom

and practice. It is important to note that the Hospital does not have a ‘pudding thick’

stamp, so we use the ‘honey thick’ stamp cross[,] out honey[,] and write ‘pudding’ when

appropriate. As my regular practice was to go over all menus before ending my shift, I

had not yet completed my review and menu preparation. Thus, I had not had the

opportunity yet to cross out the word ‘honey’ and hand write ‘pudding’ next to the thick

stamp just as I did on this patient’s menus for September 5 and 6.”11 (Emphasis omitted)

know how to prepare a “pudding thick” menu and that “if she had not known what to do,

she would have copied the menu from the day before.” This assertion on its face grounds

two conflicting but equally likely inferences: that the September 6 menu was in error, or

that the September 7 menu was not in error. Indeed there is no direct proof that any of

the menus for room 310A contained an error; it is simply assumed that the menu prepared

on September 7 was in error because the wrong food was, reportedly, delivered to the

room on September 8. But Bandelier’s own investigation pointed to several other

potential causes for this mishap, including a “confusing” system of classifying thickness

restrictions, and ignorance among at least some kitchen workers on the distinctions.

Indeed Bandelier had originally “figured the kitchen staff made the error,” but after

investigating was “not so sure” because it appeared that many clinical-side workers were

similarly confused or ignorant. At least two of them reported that they “did not know the

correct way to modify a pudding thick diet order.” At the same time, the hospital’s own

record-keeping system, or lack thereof, made it impossible to ascertain the cause of the

supposed error. As Bandelier herself wrote, “I have no way of knowing if this patient’s

menu was or was not modified correctly before today. We have a paper system in the

diet office—once the menu leaves, it’s gone forever unless someone on the floor saves it

and sends it back to the diet office.” The menu most at issue in the supposed feeding

error—the one prepared on September 7—was “long gone.”

11

If the distinction between “pudding thick” and “honey thick” was as critical to

patient safety as defendant claims, it seems remarkable that defendant had not provided a

19

Bandelier went to great lengths at the time, and defendant goes to great lengths

now, to discredit plaintiff’s statements on this point. But it is not the office of summary

judgment to weed out claims based on judges’ doubts about the veracity of supporting

evidence. We find nothing in the record rendering this testimony so intrinsically

unworthy of belief that a trier of fact could not credit it.

If the menu was still awaiting final review, as plaintiff insists, then the features

pounced upon by Bandelier had not ripened into an actual defect. A factfinder could so

conclude. After all, so far as the record shows, plaintiff had properly prepared the same

patient’s menus on two prior days. If her testimony about her work procedures is

believed—and as noted, we see no basis to hold that a factfinder could not believe it—

then this was not an instance of deficient performance.12

4. Conceded Mistake

Plaintiff concedes making one serious error under Bandelier’s supervision: On

January 23, 2008—eight-plus months before her discharge—she wrote on a patient’s

menu that the patient was restricted to “semi-thin” liquids when in fact the patient had

been restricted to thick liquids. Bandelier gave her an “oral counseling” reflected in a

written memorandum placed in plaintiff’s file. As discussed above, however, a trier of

fact could conclude that under defendant’s own written policies, the occasional

commission of such errors fell within the norm of acceptable performance. Defendant

“pudding thick” stamp to the menu office, thereby eliminating the workaround described

by plaintiff, the hazards of which seem obvious.

12

Bandelier made much of the fact, as defendant continues to do, that when

confronted with the supposedly defective menu, plaintiff said, “I think I did it right last

time.” Defendant views this statement as an implied concession that the September 8

menu was in error. But according to plaintiff, she was merely pointing out to Bandelier,

quite reasonably, that she had correctly prepared menus for the same patient on two

previous days. The correct interpretation of plaintiff’s words is obviously fraught with

issues that only a trier of fact can resolve.

20

made no attempt to demonstrate that similar errors were not made by other, younger

employees at similar or greater rates.

A factfinder could conclude that, apart from this one error eight months before her

discharge, plaintiff exhibited no significant failures of competence while under

Bandelier’s supervision. Since she had up to that time always been found to have

rendered satisfactory performance, a jury could find that Bandelier’s list of supposed

deficiencies had more to do with Bandelier’s attitude toward plaintiff than with plaintiff’s

actual performance. Plaintiff presented ample evidence that her performance was in fact

satisfactory, including defendant’s own policies indicating that, at worst, she committed

far fewer errors than might be anticipated, and deemed acceptable, in one performing her

duties.

We therefore cannot accept the trial court’s conclusion that “As Plaintiff made

several mistakes on menus between January and May in 2008, Plaintiff fails to show she

performed her job in a satisfactory manner.” The record does not show “several errors”

as a matter of law, and it does not show that some number of errors—even “several”—

necessarily fell below the hospital’s standards of performance.

We turn to the question whether the judgment can be sustained on another ground.

III. Nondiscriminatory Reason vs. Discriminatory Animus

A. Introduction

The trial court adopted a second rationale in support of summary judgment: that

(1) defendant “establishe[d] a legitimate, nondiscriminatory reason for its actions,” and

(2) plaintiff failed to “produce substantial evidence that Defendant’s stated reasons were

untrue or pretextual, or that Defendant acted with a discriminatory animus, such that a

reasonable trier of fact could conclude that Defendant engaged in intentional

discrimination or other unlawful action. [Citation; record citations.]” (Fn. omitted.)

This was a reference to the second and third stages of the McDonnell Douglas/Guz

21

burden-shifting process: If the plaintiff makes a prima facie showing—as we have found

plaintiff could do here at trial—“the burden shifts to the employer to rebut the

presumption by producing admissible evidence, sufficient to ‘raise[] a genuine issue of

fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a

legitimate, nondiscriminatory reason. [Citations.]” (Guz, supra, 24 Cal.4th at pp. 355-

356.) Legitimate reasons are those “that are facially unrelated to prohibited bias, and

which, if true, would thus preclude a finding of discrimination. [Citations.]” (Id. at

p. 358, fn. omitted.) The employer’s reasons “need not necessarily have been wise or

correct,” so long as they were not discriminatory. (Ibid.) Such a showing by the

employer rebuts the presumption of unlawful discrimination, requiring the plaintiff-

employee to come forward with evidence that the challenged treatment was in fact the

product of an unlawful discriminatory motive. (Reid v. Google, supra, 50 Cal.4th 512,

520, fn. 2.)

Here the reason defendant offered for plaintiff’s discharge was the same one we

have already examined: that plaintiff was performing her job in an unsatisfactory

manner. As we have already concluded, the record presents triable issues of fact as to

whether this was actually the case. However, the question here is slightly different: Not

whether a nondiscriminatory ground for discharge existed in fact, but whether defendant

discharged plaintiff on the basis of a genuine belief that such a justification existed. As

noted above, the relevance of a finding in defendant’s favor is that it dispels the

presumption of discrimination and requires plaintiff to come forward with additional

evidence supporting an inference that her discharge was actually the result of unlawful

discrimination. That—and not “pretext”—is the fundamental question: “The central

issue is and should remain whether the evidence as a whole supports a reasoned inference

that the challenged action was the product of discriminatory or retaliatory animus. The

employer’s mere articulation of a legitimate reason for the action cannot answer this

22

question; it can only dispel the presumption of improper motive that would otherwise

entitle the employee to a judgment in his favor. Thus, citing a legitimate reason for the

challenged action will entitle the employer to summary judgment only when the

employee’s showing, while sufficient to invoke the presumption, is too weak to sustain a

reasoned inference in the employee’s favor.” (Mamou, supra, 165 Cal.App.4th 686, 715;

see Reeves, supra, 121 Cal.App.4th 95, 112, fn. 11 [criticizing cases in which “the

‘pretext’ tail wags the whole anti-discrimination dog”].)

B. Confession of Bias

Here we think the many evidentiary conflicts and uncertainties about the litany of

accusations lodged against plaintiff by Bandelier go far toward casting the legitimacy of

the cited justification in doubt and supporting in its stead an inference of discriminatory

animus. In addition, however, plaintiff presented another smoking gun in the declaration

of Diana Hendry, a former friend of Bandelier’s, who averred that Bandelier once

confessed to her that she favored younger and pregnant workers, and that she was

concerned about this treatment being noticed. According to Hendry, “One evening when

I was at Ms. Bandelier’s house for dinner, she said to me, ‘We shouldn’t have lunch

anymore or talk socially at work . . . People are starting to notice I’m favoring the

younger and pregnant ones.’ ” (Ellipsis in original, italics added.)

If this statement was admissible, it provided an ample basis for a finding that

Bandelier’s treatment of plaintiff had nothing to do with genuine deficiencies in

plaintiff’s work and everything to do with discriminatory animus against older workers.

However the trial court sustained a hearsay objection to this averment, declaring it

“double hearsay,” in that it consists of “Hendry’s recitation of what Bandelier told her for

the truth of the out of court statements.” This characterization is accurate as far as it

goes; Hendry’s declaration was itself hearsay, and Bandelier’s statement to her was thus

hearsay within hearsay. (See Evid. Code, § 1200, subd. (a).) The question is thus

23

whether each “layer” of hearsay is dispelled by a hearsay exception. The first layer

certainly is: written declarations under penalty of perjury are admissible in motion

practice despite their hearsay character. (Code Civ. Proc., §§ 2009, 2015.5.) Indeed the

summary judgment statute explicitly contemplates reliance on declarations both in

support of and opposition to the motion. (Code Civ. Proc., § § 437c, subd. (b).)

The second layer—Bandelier’s statements to Hendry—present a more genuine

question. Plaintiff characterizes them as “admissions” or “party admissions,” citing

Evidence Code section 1222, which codifies an exception for statements by a person

authorized to speak for a party. It is far from clear, however, that Bandelier could be

found to have been authorized to state to a coworker that she was discriminating against a

protected class of employees. (See O’Neill v. Novartis Consumer Health, Inc. (2007) 147

Cal.App.4th 1388, 1403 [no error in exclusion of meeting minutes signed by Director of

Regulatory Affairs, in absence of further evidence that he had authority to speak for

company]; Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 70

[statements by human resources employees concerning futility of applications for rehire

were not vicarious admissions where no evidence of authority in that “none of the

individuals under discussion were involved in the decisions not to rehire appellant”]; cf.

O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 570-574

[holding admissible vice president’s statement to managers that director said company

wanted to replace managers over 40].)

A more colorable ground for treating Bandelier’s statements as vicarious

admissions might be found in Evidence Code section 1224 (§ 1224), which makes

admissible, against a party to litigation, statements by a person on whose breach of duty

that party’s liability may depend.13

13

“When the liability, obligation, or duty of a party to a civil action is based in

whole or in part upon the liability, obligation, or duty of the declarant, or when the claim

or right asserted by a party to a civil action is barred or diminished by a breach of duty by

24

However, we need not determine whether Bandelier’s reported statements to

Hendry are admissible as authorized or vicarious admissions, for we have concluded that

they were admissible as declarations against Bandelier’s interest. Under Evidence Code

section 1230 (§ 1230), evidence of an extrajudicial statement is admissible over a hearsay

objection if “the statement, when made, was so far contrary to the declarant’s pecuniary

or proprietary interest, or so far subjected him to the risk of civil or criminal liability, . . .

or created such a risk of making him an object of hatred, ridicule, or social disgrace in the

community, that a reasonable man in his position would not have made the statement

unless he believed it to be true.” (§ 1230.)

A statement by Bandelier to a then-friend that she “favored” younger employees—

and thus disfavored (discriminated against) older employees—was antithetical to her

“pecuniary” interests in that, if publicly known, it would expose her employer to liability

and jeopardize her own present and future employment. Although we have found no

apposite California decision, a leading federal case held admissible, as a statement

against interest, a worker’s statement to fire investigators that he and some coworkers had

entered their employer’s premises after hours and had been smoking there not long before

an early morning fire. (Gichner v. Antonio Troiano Tile & Marble Co. (D.C. Cir. 1969)

410 F.2d 238, 242 (Gichner), cited in House Comm. on Judiciary, Fed. Rules of Evid.,

H.R.Rep. No. 650, 93d Cong., 1st Sess., p. 16 (1973); 1974 U.S.Code Cong. & Ad.News

7075, 7089.) Judge Wright wrote that “[a] statement is against pecuniary and proprietary

interest when it threatens the loss of employment, or reduces the chances for future

employment, or entails possible civil liability.” (Id. at p. 242.) The worker’s “admission

that he had been there after hours, for a purpose unrelated to his employment, and while

the declarant, evidence of a statement made by the declarant is as admissible against the

party as it would be if offered against the declarant in an action involving that liability,

obligation, duty, or breach of duty.” (§ 1224.)

25

there did something which may have caused the destruction of his employer’s stock in

trade, reflects on his responsibility and trustworthiness, and can reasonably be said to

jeopardize his standing with his employer.” (Ibid.)

A supervisor’s statement that she “favors” one class of employees, potentially at

the expense of a protected class, creates a similar risk of future economic loss. The

California Supreme Court has emphasized the career hazards faced by a discriminating

supervisor as a justification for holding such persons immune from civil liability for such

conduct. In Reno v. Baird (1998) 18 Cal.4th 640, 654-655, the court rejected a criticism

that immunity would amount to a “ ‘free pass’ ” to the offending supervisor, stating,

“ ‘An employer subjected to well-founded claims of employment discrimination as a

result of an employee’s intentional acts of discrimination is not likely to look favorably

upon the offending employee. To the contrary, the employer, to protect its own interests

and to avoid further liability, almost certainly will impose some form of discipline upon

the offending employee. That discipline may include a ‘free pass’ to the unemployment

line, a result that would seem particularly likely if the employee engages in repeated acts

of intentional discrimination against fellow employees.’ ” (Reno v. Baird (1998) 18

Cal.4th 640, 654-655, quoting Lenhardt v. Basic Institute of Technology, Inc. (8th Cir.

1995) 55 F.3d 377, 381.) The court returned to this point in rejecting a parallel argument

that its holding would reduce the effectiveness of the antidiscrimination statutes by

allowing supervisors to “escape punishment” for discriminatory conduct: “Supervisors

guilty of engaging in unlawful discrimination, and thus causing their employers to incur

monetary liability, will often suffer demotion or unemployment. Their reputation with

potential future employers will also be affected.” (Reno v. Baird, supra, at p. 662.)

We think Bandelier’s statement to Hendry sufficiently jeopardized her career

prospects to be found against her pecuniary interests for purposes of a hearsay objection.

26

It may also be admissible as a declaration against legal interest, i.e., as exposing her to

civil liability.

Remarkably, we have found no published California cases applying the “risk of

civil . . . liability” branch of the exception in section 1230. There are many cases

applying the exception for statements exposing the declarant to criminal liability, but

they arise in the context of criminal prosecutions, and having reviewed a number of them

we believe their holdings should be relied upon with caution in the civil context. They

typically arise in one of two situations: either the prosecution seeks to introduce an

absent declarant’s statement that also incriminates the defendant, or the defendant seeks

to introduce such a statement to show that a third party and not himself is the perpetrator

of an offense. Both of these situations raise a number of complications not present in

civil litigation. These include the privilege against self-incrimination; the right to

confront adverse witnesses; the ease with which evidence of incriminating statements by

absent declarants may be manufactured; the relative ineffectuality, in many criminal

prosecutions, of the threat of a perjury prosecution as a deterrent to false testimony; and

the potential for a miscarriage of justice if credible evidence of third-party culpability is

categorically excluded. Considerations like these have led courts to require particularized

indications of trustworthiness where an extrajudicial statement is offered as a declaration

against penal interest. (See People v. Duarte (2000) 24 Cal.4th 603, 610-611.) These

considerations are largely absent in the context of civil litigation.

With this caveat, however, we do find some guidance in those cases to the extent

that they recognize that to come within the exception a statement need not wholly confess

guilt; it need only be “ ‘distinctly against [the declarant’s] interest.’ ” (People v. Traylor

(1972) 23 Cal.App.3d 323, 331, quoting 5 Wigmore, Evidence (3d ed. 1940) § 1457,

pp. 262-263.) Similarly, the court in Gichner, supra, 410 F.2d at page 242, found that the

statement there sufficiently exposed the declarant to civil liability, notwithstanding that

27

the declarant “only stated that [he and his companions] had been smoking, not that they

had been carelessly smoking.” The court wrote, “[I]t is not necessary for the statement to

include every aspect of negligence; it is enough if the statement could reasonably provide

an important link in a chain of evidence which is a basis for civil liability . . . . In the

circumstances of this case, the admission by Faulds that he had been smoking shortly

before the fire does not seem so remote or tenuous that it was unlikely to entail his

possible civil liability.” (Id. at pp. 242-243, fn. omitted.)

Here a statement by Bandelier that she had been “favoring pregnant and younger

[workers]” had a distinct tendency not only to jeopardize her career but to build a case

against her personally for workplace harassment, and perhaps other torts. As already

noted, she was immune from liability for engaging in most discriminatory employment

practices. (Reno v. Baird, supra, 18 Cal.4th at p. 663; Jones v. Lodge at Torrey Pines

Partnership (2008) 42 Cal.4th 1158, 1173.) But her immunity did not extend to claims of

discriminatory harassment, for which the Legislature has unmistakably imposed personal

liability on individual workers.14 (Gov. Code, § 12940, subd. (j)(3).) A confession of

discriminatory animus against older workers would be highly detrimental in defending a

harassment claim. Nor was such a claim a remote possibility. In a letter to hospital

administrators, plaintiff accused Bandelier of a “vendetta” against her, though without

linking it explicitly to age discrimination.15 A confession by Bandelier that she favored

14

In doing so the Legislature overturned Carrisales v. Department of Corrections

(1999) 21 Cal.4th 1132, 1134, 1140, which had extended immunity to nonsupervising

coworkers for harassment under FEHA. This left only the question, which the court

expressly left open, whether the cloak of immunity would also be cast over supervisory

employees. (Id. at p. 1138, fn. 3.) Before the court had an occasion to reach that

question, the Legislature intervened, declaring that any coworker may be liable for

workplace harassment. (Gov. Code, § 12940, subd. (j)(3), enacted by Stats. 2000,

ch. 1049, § 7.5, p. 7717.)

15

The letter, sent on September 11, 2008, chronicled a number of instances of

unfair and disparate treatment at Bandelier’s hands. It referred to one exchange in which

28

younger workers would go far toward making out a cause of action against her

personally.

We also note that Bandelier’s statement to Hendry, if actually made, appears

highly reliable. Certainly no one was in a better position than Bandelier to know whether

she had been “favor[ing] younger and pregnant” employees. The utterance took place in

a purely private, personal setting. No motive to fabricate has been suggested. Courts,

including this one, have found a strong assurance of trustworthiness in the circumstance

that a statement was made in a “ ‘conversation . . . between friends in a noncoercive

setting that fosters uninhibited disclosures.’ ” (People v. Tran (2013) 215 Cal.App.4th

1207, 1217, quoting People v. Greenberger (1997) 58 Cal.App.4th 298, 335, and citing

People v. Cervantes (2004) 118 Cal.App.4th 162, 174-175.) Further, the statement’s

evident purpose—so far as this record shows—was to enlist Hendry’s cooperation in

concealing Bandelier’s favoritism. Such a motivation would seem to bolster the against-

interest aspect by suggesting that Bandelier was conscious of the damaging potential her

favoritism, if established, could have.

We conclude that for purposes of summary judgment, at least, the statement in

question was admissible as a declaration against interest. To the extent the question

involved any discretion, the trial court’s implied determination to the contrary was an

abuse of discretion. As we observed at the outset, in ruling on motions for summary

judgment courts are to “ ‘liberally construe the evidence in support of the party opposing

summary judgment and resolve doubts concerning the evidence in favor of that party.’ ”

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1249-1250, quoting

Bandelier warned plaintiff that certain conduct of which she accused plaintiff could be

considered harassment. Plaintiff wrote, “I said to Kim, ‘you mean like you are doing to

me now?’ ” In her declaration Bandelier denied that she was aware of plaintiff’s specific

complaints to management, but she acknowledged in deposition that she knew of a

complaint through the union about “ongoing harassment in nutrition services.”

29

Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; see Stationers Corp. v. Dun

& Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [“In examining the sufficiency of affidavits

filed in connection with the motion, the affidavits of the moving party are strictly

construed and those of his opponent liberally construed, and doubts as to the propriety of

granting the motion should be resolved in favor of the party opposing the motion.”].)

The order granting summary judgment rested entirely on two propositions:

(1) Plaintiff had failed to raise a triable issue of fact with respect to whether she had

performed her job competently; and (2) plaintiff had failed to raise a triable issue of fact

in controversion of defendant’s claim that she was fired for perceived performance

problems and not as the result of discriminatory animus. We have concluded that neither

of these premises can be sustained on this record.

DISPOSITION

The judgment is reversed.

30

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

ELIA, J.

____________________________________

GROVER, J.

Cheal v. El Camino Hospital

H036548

31

Trial Court: Santa Clara County Superior Court

Superior Court No.: CV141348

Trial Judge: The Honorable

Mark H. Pierce

Attorneys for Plaintiff and Appellant Kastner Kim

Carol Cheal: Eric C. Kastner

J. Philip Martin

Attorneys for Defendant and Respondent Fitzgerald Abbott & Beardsley,

El Camino Hospital: Sarah E. Robertson

Mark A. Delgado

Cheal v. El Camino Hospital

H036548

32