The opinion
Filed 9/10/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LINDA JORGENSEN, B305594
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. YC073064)
v.
LOYOLA MARYMOUNT
UNIVERSITY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ramona G. See, Judge. Reversed.
Bahar Law Office and Sarvenaz Bahar for Plaintiff and
Appellant.
Musick, Peeler & Garrett, William J. Tebbe and Stephen R.
Isbell for Defendant and Respondent.
____________________
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Linda Jorgensen sued Loyola Marymount University for
retaliation and age and gender discrimination. (See Gov. Code,
§ 12940 et seq.) The trial court granted the University’s motion
for summary judgment but erroneously excluded evidence a
University employee rejected a job candidate because she
“wanted someone younger.” Reid v. Google, Inc. (2010) 50 Cal.4th
512, 535–545 (Reid) explained such remarks can be relevant in
age discrimination suits. Together with other evidence, they can
make summary judgment inappropriate. That holds here.
We summarize Jorgensen’s version of the facts.
Jorgensen started at the University in 1994. Her career
went swimmingly until July 2010, when the University appointed
Stephen Ujlaki to be the Dean of its School of Film and Television
(which we call the School for short). Jorgensen then was over 40.
She alleged Ujlaki discriminated against older female employees.
Ujlaki promoted Johana Hernandez to be an Assistant
Dean at the School. At age 30, Hernandez started as an
administrative assistant at the School in January 2010, a few
months before Ujlaki. Jorgensen helped train Hernandez. Once
Ujlaki arrived, Hernandez ingratiated herself with him: Ujlaki
made Hernandez his favorite. In 2014, Jorgensen was shocked
when Ujlaki promoted Hernandez to Assistant Dean, because
Jorgensen believed she was far more qualified and experienced
than Hernandez. To Jorgensen’s dismay, Ujlaki later ordered
Jorgensen to report to Hernandez.
After Jorgensen lost this promotion to Hernandez, Ujlaki
and Hernandez sidelined Jorgensen and eventually left her with
few duties: “In the end, I was left to watch cat videos at
work . . . .” She ascribed her lost promotion and her
marginalization to Ujlaki’s age and gender discrimination,
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facilitated by Hernandez. Jorgensen complained but the
University rejected her claims and then, she asserted, punished
her for complaining. She sued in 2018 and resigned in 2019.
The University presented a different picture. Again we
excerpt a lengthy presentation. The University noted Jorgensen
was a problem employee: she became insubordinate when Ujlaki
and his team tried to improve the way the School operated. One
new Associate Dean—a woman older than Jorgensen—described
Jorgensen as “the most difficult employee I have ever had to
manage by orders of magnitude.” Meanwhile, Hernandez proved
herself effective and hardworking: the University marshaled
facts showing Hernandez’s ascent was due to her competence, not
discrimination.
The University moved for summary judgment, offering
evidence of legitimate justifications for its decisions. Jorgensen
opposed the motion with declarations from Jorgensen and other
older women who had worked under Ujlaki.
The University lodged objections to Jorgensen’s supporting
declarations, including one from Carolyn Bauer, a former School
employee.
The court sustained objections to part of Bauer’s
declaration. Bauer declared that, while working at the School,
one Belinda Brunelle asked Bauer about an open position there—
a position different from anything Jorgensen sought. Bauer
mentioned Brunelle’s interest to Hernandez, who immediately
responded she “wanted someone younger” for the position.
The University objected to Bauer’s evidence about
Hernandez’s “someone younger” remark. Its four objections were
relevance, conjecture, speculation, and hearsay.
These four objections were wide of the mark.
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First, the relevance objection was incorrect under the Reid
decision, which extensively analyzed the federal doctrine of stray
remarks: “ ‘statements by nondecisionmakers, or statements by
decisionmakers unrelated to the decisional process itself.’ ”
(Reid, supra, 50 Cal.4th at p. 536.) Reid held an “age-based
remark not made directly in the context of an employment
decision or uttered by a nondecision maker may be relevant,
circumstantial evidence of discrimination.” (Id. at p. 539, italics
added.)
Judge Posner observed the probative value of a stray
comment depends on the precise character of the remark.
(Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, 402 (Shager),
quoted in Reid, supra, 50 Cal.4th at p. 539.) The relevance
increases when the declarant might “ ‘influence the decision.’ ”
(Reid, supra, 50 Cal.4th at p. 540, quoting Russell v. McKinney
Hospital Venture (5th Cir. 2000) 235 F.3d 219, 229; see also Reid
at p. 542 [“discriminatory remarks by a nondecisionmaking
employee can influence a decision maker”].)
Under Reid, Hernandez’s remark was relevant because one
can infer Hernandez could influence Ujlaki, the School’s top
decision maker on all issues, including hiring and promotion.
The Associate Dean interviews showed Hernandez’s
potential for influence. A search committee identified three
candidates for Associate Dean positions at the School. As the last
hurdle, each candidate attended a final interview with Ujlaki,
one at a time. Only three people attended these interviews: the
candidate, Ujlaki, and Hernandez. Ujlaki invited Hernandez to
participate, and not as a note taker: she took no notes during the
interviews. After they interviewed the three candidates together,
Ujlaki discussed with Hernandez whom to hire. Ujlaki confided
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to Hernandez he was “torn” about the decision. This discussion
was in Ujlaki’s office. The two were alone.
A jury could conclude Hernandez had Ujlaki’s ear.
Other evidence corroborated this permissible inference.
Once hired, an Associate Dean noted Ujlaki put an
“enormous amount of trust” in Hernandez; Ujlaki relied on her
“heavily to do work for him.” Hernandez was one of Ujlaki’s
“favorites.”
Ujlaki and Hernandez were on a first-name basis. Ujlaki
gave Hernandez “a series of special assignments.” Flouting
formal organizational lines, Hernandez effectively reported
directly to Ujlaki. Ujlaki eventually created a new job
classification just for Hernandez. Ujlaki asked Hernandez to
observe and to report back to him on the leaders of the School’s
departments.
The evidence permits an inference Ujlaki trusted
Hernandez as an advisor, which in turn suggests Hernandez
could and did influence Ujlaki’s decisions.
Under Reid, Bauer’s testimony about Hernandez’s
“someone younger” comment thus was relevant. (See Reid,
supra, 50 Cal.4th at pp. 535–545.)
The second objection was “speculation,” but there was no
speculation. Bauer quoted Hernandez word-for-word. That is not
speculation.
Third, there was no conjecture, for the same reason.
Fourth, there was no hearsay problem. Hernandez’s
comment is within the exception for states of mind. (See Evid.
Code, § 1250.) Professors Sklansky and Roth explain the basics.
“When an out-of-court statement is used as circumstantial
proof of the declarant’s state of mind, the hearsay rule is not
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implicated, because the statement is not offered to prove the
truth of what it asserts.” (Sklansky & Roth, Evidence: Cases,
Commentary, and Problems (5th ed. 2020) pp. 145–146.) For
example, in Lyons Partnership, L.P. v. Morris Costumes, Inc. (4th
Cir. 2001) 243 F.3d 789, 804, a trademark plaintiff offered
evidence children shouted “Barney Barney Barney” upon seeing a
person in a “Duffy” costume, not for its truth, but to prove a
likelihood of confusion between the accused Duffy costume and
the protected Barney mark; therefore the statements were not
hearsay and the hearsay rule did not apply. (Sklansky, at p.
146.) “But sometimes a statement explicitly describes the
speaker’s state of mind: ‘Hey, I think that’s Barney!’ or ‘I think
she’s an undercover cop,’ or ‘I hate him.’ Statements of this kind
seem to qualify as hearsay when used to prove what the
declarants believed, knew, or felt. But they fall within a
longstanding exception for statements describing the declarant’s
state of mind.” (Ibid.)
According to this accurate statement of evidence law,
Hernandez explicitly described her state of mind when she said
she was looking for somebody younger. This then was hearsay,
but it fell within section 1250 of the Evidence Code because it
recounted Hernandez’s state of mind: Hernandez preferred
younger employees.
Untrustworthiness is not a problem. Section 1250
incorporates section 1252 of the Evidence Code, which makes
such statements inadmissible if circumstances suggest a lack of
trustworthiness. The Law Revision Commission Comments to
section 1252 highlight the significance of a speaker’s motive to
misrepresent or to manufacture evidence (Cal. Law Revision
Com. com., 29B pt. 4 West’s Ann. Evid. Code (2015 ed.) foll. §
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1252, p. 453), but the University does not contend Hernandez had
this motive. Nor do we detect this possibility.
The state-of-mind exception therefore made admissible
Bauer’s report of Hernandez’s remark. Thus we do not explore
whether Hernandez’s words also were an admission. (See Evid.
Code, § 1222.)
In sum, the trial court erroneously excluded evidence. This
is true under any standard of review.
How does this evidentiary error affect the validity of the
summary judgment? The rule is not automatic reversal. A stray
remark alone may not create a triable issue. (Reid, supra, 50
Cal.4th at p. 541.) Rather, Reid suggests we examine the record
as a whole to see if Hernandez’s previously excluded comment
changes the propriety of summary judgment under governing
law. (Id. at p. 545.)
The governing law is the familiar three-part burden-
shifting test. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317,
354.) First, the plaintiff must establish a prima facie case raising
a presumption of discrimination. Second, the employer may
rebut the presumption by showing it acted for legitimate and
nondiscriminatory reasons. Finally, the plaintiff may attack the
employer’s reasons as pretextual or may offer other evidence of
improper motives. (Id. at pp. 354–356.)
The trial court ruled the University offered legitimate
reasons for its actions and Jorgensen failed to show pretext.
Three factors show Hernandez’s remark changes the
pretext analysis.
First, on this record, the remark evidence is relatively
strong. Some stray remarks are ambiguous. (See Shager, supra,
913 F.2d at pp. 400, 402–403.) This one was not. Moreover, the
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evidence of Ujlaki’s regard for Hernandez’s advice is clear. And
there is no doubt Ujlaki was the key decision maker at the
School. (Cf. Reid, supra, 50 Cal.4th at p. 542 [declarants’
proximity to decision makers varies greatly].) An influential
advisor who makes a clearly biased comment generates relatively
potent evidence in a case like this. Where there is smoke, there
might be fire.
Second, Ujlaki created a pay differential between male and
female Associate Deans hired concurrently. This evidence came
from the same older female Associate Dean who criticized
Jorgensen. Discovering this pay difference contributed to her
decision in 2017 to resign after only three years. There may be
innocuous explanations for this pay difference, but on this record
it adds another cloud of smoke.
Third, sources unrelated to Jorgensen criticized Ujlaki’s
management. A faculty report asserted Ujlaki’s deanship had led
to “discrimination claims” and called for “a zero tolerance for
discrimination, retaliation, marginalization, and harassment.”
An outside consultant evaluated Ujlaki’s deanship and concluded
the faculty consensus was the situation was “too dysfunctional to
be allowed to continue” and “consideration of ending the Dean’s
tenure is justified.” After this report, Ujlaki prematurely ended
his second term as Dean. The older female Associate Dean later
voiced sharp, substantial, and wide-ranging dissatisfaction with
Ujlaki’s leadership, calling him “unethical” and “corrupt.” This is
more smoke.
These elements create an ambiguous picture. How should
one interpret it? The familiar rule is that, when ruling on a
motion for summary judgment, the court may not weigh the
plaintiff’s evidence or inferences against the defendant as though
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the court were sitting as the trier of fact. (Reid, supra, 50 Cal.4th
at p. 540; cf. Shager, supra, 913 F.2d at p. 401 [“if the inference of
improper motive can be drawn, there must be a trial”].) Adding
Hernandez’s overtly discriminatory comment to this record made
summary judgment inappropriate.
As a separate matter, the University argues Jorgensen did
not sufficiently argue prejudice from the court’s evidence rulings.
But Jorgensen cited Reid in her opening papers and amply
explained her prejudice argument.
The University alternatively argues Jorgensen suffered no
adverse employment action, but there is a disputed issue of fact
as to whether the failure to promote her and the adversities she
experienced thereafter were just that. (See Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1060–1061.)
Finally, the trial court did not rule on the University’s
motions for summary adjudication. We do not undertake these
analyses in the first instance.
DISPOSITION
We reverse the summary judgment order, remand, and
award costs to the appellant.
WILEY, J.
We concur:
GRIMES, Acting P. J. OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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