Reversing a trial court’s decision in favor of the employer, a California Court of Appeals in Cheal v. El Camino Hospital held that a former employee may present her age discrimination claim to a jury because there were triable issues as to whether the plaintiff performed adequately, and whether age bias motivated her termination.

Carol Cheal was employed as a Dietetic Technician by El Camino Hospital for over 20 years. She prepared patient meals, and consistently received strong performance evaluations. In July 2007, El Camino appointed a new supervisor in charge of nutritional services, Kim Bandelier, who began to accuse Cheal (age 61) of numerous shortcomings, which eventually resulted in Cheal’s termination from employment in October 2008.

Cheal sued for age discrimination, but the trial court dismissed the case, primarily because Cheal failed to show she performed her job in a satisfactory manner, and did not produce substantial evidence that El Camino’s actions were pretextual or that it acted with discriminatory intent.

The appellate court reversed and allowed the case to go to trial. The court noted that, despite the evidence that Cheal “made several mistakes on menus between January and May in 2008,” the record revealed that, with the high volume of meals processed by the Dietetic Technicians (around 500 meals a day), mistakes were commonplace and expected by the hospital. Moreover, there was evidence that younger workers were not disciplined for similar mistakes or that Cheal’s mistakes were qualitatively more significant. This evidence belied the trial court’s finding that “several mistakes” over a 4-5 month period constituted unsatisfactory performance.

The appellate court also rebutted the trial court’s findings that plaintiff failed to produce substantial evidence of discriminatory animus. The appellate court noted that in addition to the questions about the legitimacy of the employer’s proffered reasons for termination—which supported an inference of discriminatory animus—the plaintiff also presented hearsay evidence of a statement by her supervisor that she favored “younger and pregnant” workers. The court held that this hearsay statement was admissible as declaration against interest and raised a triable issue of whether the termination of Cheal was motivated by age discrimination.

This decision is a reminder of the importance of a substantial and consistent record of poor performance when an employer seeks summary dismissal of discrimination claims.