In employment discrimination cases, employers, like Marc Antony, come not to praise the employee, but to bury him. Unlike Antony, they mean it.  The employer’s oration might go like this, as taken from Scene II, in “Julius Caesar:”

Your Honor, Jurors, and Plaintiff’s counsel, lend me your ears;
I come to bury this Employee, not to praise him.The evil that men do lives after them;The good is oft interred with their bones;So let it be with this Employee. The noblePlaintiff’s counselHath told you this Employee was ambitious:If it were so, it was a grievous fault,And grievously hath the Employee answer’d it.Here, under leave of the Plaintiff’s Attorney and the rest–For Plaintiff’s Counsel is an honourable man;So are they all, all honourable men–Come I to speak against this Employee’s case for wrongful termination.He was my client’s worst nightmare, unfaithful and unjust to my client, but:But the Plaintiff’s counsel says he was ambitious;And Plaintiff’s counsel is an honourable man.Plaintiff’s counsel hath won many cases and brought home the spoils,Whose ransoms did the his own bank account fill:Does this same intent to enrich the present Plaintiff seem ambitious?When that my client’s managers have cried in frustration, this Plaintifflaughed.
Yet the Plaintiff’s attorney says the Plaintiff was ambitious;
And the Plaintiff’s attorney is an honourable man.
You all did see that on the Lupercal
My client presented him warnings, and a performance improvement plan,
Which he did thrice refuse: was this ambition?
Yet the Plaintiff’s attorney says he was ambitious;
And, the Plaintiff’s attorney, he is an honourable man.
I speak not to disprove what Plaintiff’s counsel spoke,
But here I am to speak what I do know.
My client did love the Plaintiff once, not without cause:
What cause withholds you then, to vote for him?  I will tell you!
O judgment!  Give my client judgment, for truth has fled to brutish beasts,
And give us jurors who have not lost their reason. Bear with me;
My heart is there with my client, the employer,
And I must pause till it come back to me.

Good work should be made of sterner stuff:



An employee’s performance, like a new lover, is first seen unblemished, and flaws are but charming accouterments, until the day a new supervisor or manager enters the picture with a bias to grind.  Then those little omissions, those slight deviations, that accidental entry, are the mountain peaks of error, rising like the Tetons. All to this purpose: to establish that the victim deserved what she got:  she was incompetent, defective in the extreme, unworthy of her job. Certainly, no discrimination was at play.


Which brings us to the case of Cheal v. El Camino Hospital (Jan. 31, 2014) 2014 DJDAR 1331 (6thApp. District – Santa Clara County).  I cite this case because it reveals the world of Summary Judgment in discrimination cases, and because it reveals the heavy hand of some trial judges unwilling to clear the smoke of a “thousand insults” thrown at the employee in the moving papers.  The Cheal court described this “smoke” as “the deluge of statements, counterstatements and objections, that mark modern summary judgment practice.”


Cheal is a droning of details deep into the daily work performance of a hospital dietician, or “menu tech” whose job was to prepare daily menus for hospital patients in compliance with doctor orders.  The Defendant filed 77 alleged “undisputed statements of fact” to support its motion of summary judgment, most of them going to Cheal’s work deficiencies.  The Court of Appeal, God bless them, somehow found the time and interest, to wade through these, and to then examine the merits of each against the “triable issue of fact” standard.  Most of the decision is written as a microscopic account of how Cheal put the truth of Defendant’s performance charges in issue.


Here is what is useful to the employee from this decision (as well as instructive to the Defendant Employer bringing the motion):


Proof that the Plaintiff’s work performance was not satisfactory to the employer is not the relevant question or standard.  [For surely, the employer in its motion will always “beg the question” that the performance was not satisfactory.]  The question is:  what level of competence did the employer truly require as the operating standard for all employees?  The related secondary question is:  what level of performance relative to this standard did the employee actually provide?


  1. A smart employee’s attorney opposing the motion will obtain evidence that other employees in like circumstances committed a higher rate of error, but were not disciplined in like manner AND that these “favored” employees were outside Plaintiff’s “protected category.”


  1. The employee must attack the Defendant’s “smoke screen” of “counselings” and “coachings” for what they often are:  casual remarks made in passing that no reasonable employee would consider a criticism or warning.  Further, the Cheal Court cited evidence that the “coaching” was presented in the MSJ as disciplinary action when there was no evidence to support that the infraction incurred as charged.


  1. It is critical that in the MSJ, and of course, at the time of the employer-employee disciplinary exchange itself, the employee expose the lack of truth behind the performance criticism.  TheCheal court relied heavily in its decision on rebuttal evidence that the infraction did not occur or was not as severe as represented in the moving papers.  For example, one contention was that Plaintiff erroneously failed to stamp a patient’s menu sheet as “pudding thick” with the result that the patient received food that was “honey thick.”  Surrounding this issue was a complex web of other issues:  a) why did the employer not have a stamp for “pudding thick,” if the employer thought the designation so critical; b) the defendant’s manager relied on statements by a speech therapist who informed her that the patient had been fed “honey thick” over 3 days, but when deposed, the speech therapist denied making that statement; c) there was evidence that the error was committed not by the plaintiff, but by another employee; and d) that the error was not attributable to any fault of the Plaintiff who did not have the opportunity to check the accuracy of the other employee’s work.


Just summarizing this single factual dispute on the matter of “cause to terminate” is mind-numbing, and frankly boring.  Part of me wants to scream “who cares?” The answer is:  the Court of Appeal cares, then so must the Plaintiff and the Plaintiff’s attorney.  The Cheal Court devoted pages of detailed recitation of the evidence for this issue, as well as 3 other similar detailed and complex clusters of factual dispute concerning “performance competency.”


  1. The Cheal court raised an important point of evidence where the decision maker utters a hearsay statement to a co-worker or friend indicative of bias:  the statement may be admissible as a “declaration against interest,” where the “interest” in question is the risk of losing one’s employment if the employer learns that a manager harbors such discriminatory attitudes.  In this case, Cheal’s manager said to a friend (turned Plaintiff’s witness) over a private dinner that the manager favored younger, pregnant women.  Cheal was neither younger, nor pregnant.  Hence, the statement was useful, but subject to Defendant’s objection in the MSJ as hearsay.  The Plaintiff sought to have the statement to be a “party admission” because authorized by the Company, or on the basis of Evidence Code Section 1224 [a vicarious admission].  The Cheal court rejected these approaches, and independently found that the statement was admissible because the manager made the statement knowing the statement put her employment at risk.  Therefore Evidence Code Section 1230 [“declaration against interest”] applied as an exception to the hearsay rule.  This is the first case to make such an evidentiary holding in California.  It will be a useful tool for Plaintiff’s attorneys’ in future Summary Judgment motions.