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Cheal v. El Camino Hospital

A third party declaration can be used as a declaration against an interest of an employer by an employee in an employment retaliation case and can be the basis by which a Court may affirm a finding that triable issues of material fact exist sufficient to state such employment discrimination claims.

A recent decision evaluates the basis by which certain factual employment circumstances, including third party declarations, may be evaluated by the Courts in an employment retaliation case and can serve as the basis by which a Court may conclude that triable issues of material facts exist as it relates to such employment claims.

In this case, the employee, a hospital dietetic technician, asserted claims against her employer for age discrimination in violation of the California Fair Employment and Housing Act (“FEHA”), specifically asserting that there was no employment or performance basis for her firing, rather that the primary basis for doing so was because of her age. In doing so, the Plaintiff submitted to the Court evidence of that the employer’s own policy guidelines allow for certain flexibility including allowing for mistakes in generating dietetic menus, positive employer reviews and evaluations documenting less than one error a day, and most importantly a declaration from a third party employee that Plaintiff’s supervisor had wanted to give employment preference to younger and pregnant employees.

Despite Plaintiff’s various contentions, the trial court found there was no discriminatory conduct or employment violations of FEHA, finding that Plaintiff has failed to demonstrate her burden to demonstrate that she has performed her job satisfactorily, Defendant had established a non-discriminatory and legitimate business reason for her dismissal, and Plaintiff has failed to demonstrate that such reasons for such dismissal were pretext for actual discriminatory conduct. The trial court additionally rejected Plaintiff’s third party employee on the basis that such was hearsay and therefore not admissible. Essentially, the Court in dismissing Plaintiff’s contentions based on discriminatory employment based claims had determined that there was no triable issues of material fact that a jury could find that Plaintiff’s dismissal was based upon her age as opposed to a legitimate business reason.

The Appeal

On Appeal, the California Court of Appeals reversed on the basis that in accepting for purposes of a motion for summary judgment that Plaintiffs’ allegations were true, that a reasonable jury could determine that there was triable issues of material fact that Plaintiff’s dismissal was discriminatorily motivated based on her age as opposed to a legitimate business reason. Specifically focusing on Defendant’s training and evaluation policies and procedures, the Court of Appeal determined that Defendant has actually has actually exaggerated the number and severity of Plaintiff’s errors and that it was within the normal course of business and otherwise expected that employees such as Plaintiff would make so called “acceptable mistakes.” Additionally, the Court of Appeals found that there were also triable issues of material fact with respect to Defendant’s legitimate business reason for her dismissal, in particular that there were facts by which a jury could indeed find that the underlying motivation for dismissal was Plaintiff’s age. Most persuasive for the Court of Appeals, was the determination that Plaintiff’s third party employee declaration, despite being found to be hearsay by the trial court, was actually admissible as a declaration against interest, where the third party was making such statement counter to her interests where it could subject her to termination, demotion, and possibly civil liability.

The significance of this particular case, is the extent by which the California Court of Appeals evaluated in great detail, the specific facts of the case, and from the perspective of the jury, attempted to reconcile, weigh, and otherwise assess such evidence, eventually determining that triable issues of material facts did exist by which a jury could in this situation, find that there was evidence of discriminatory conduct against by the employer against the employee. Even more significant, is the evidentiary finding the Court made in regards to the third party declaration evidencing discriminatory behavior by the employer, and further determining that although it was an out of court statement, that a hearsay exception exists whereby such evidence could be admitted in favor of the employee. As a result, employers should be very conscientious that statements, whether made orally or in writing, can potentially be admitted for the purpose of establishing discriminatory conduct that can be used to bolster such legal claims and for purposes of establishing liability. In essence, that is exactly what occurred in this case, and to which the Court used such out of court statements against the employer and in favor of the plaintiff employee’s efforts to establish a legal claim of discrimination.

If you have any employment-related dispute and are considering suing your employer under FEHA, contact the Orange County Employment Lawyers at Nassiri Law Group, practicing in Orange County, Riverside, and Los Angeles. Call (949) 375-4734.

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