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Employee Did Not Prove Discriminatory Animus For Supervisors’ Age-Related Comments: What Private Schools Need to Know
Virginia Arnold worked at Dignity Health (Dignity) as a medical assistant. During her employment, Arnold received numerous verbal and written warnings for various performance deficiencies. In September 2012, Arnold’s supervisor issued her a final written warning and three-day suspension for failing to follow Dignity’s process for addressing scheduling errors. Arnold’s union grieved her final warning and a previous warning. Dignity and the union agreed to reclassify Arnold’s prior warnings to a lesser level of warning. Under the agreement, Dignity also issued a new final written warning and three-day suspension for additional instances of misconduct that occurred while the grievance was pending.
In June 2013, Arnold’s supervisor contended that Arnold threw away a specimen cup still containing patient health information. Arnold refused to take responsibility when her supervisor questioned her and blamed a co-worker. Arnold’s supervisor also learned that Arnold kept a photograph of a male model with his shirt unbuttoned in a cupboard near her desk, which her supervisor concluded was inappropriate in the workplace.
Given Arnold’s previous discipline, Dignity determined that termination was necessary. Arnold’s supervisor provided her with a letter explaining she was being terminated for: (1) failure to safeguard personal health information, a HIPAA violation; (2) display of inappropriate materials in the workplace; (3) careless performance of duties; (4) failure to communicate honestly during the course of the investigation; and (5) failure to take responsibility for her actions.
Following her termination, Arnold initiated a lawsuit against Dignity and other employees alleging discrimination, harassment, and retaliation based on her age and her association with her African-American coworkers in violation of the California Fair Employment and Housing Act (FEHA). Arnold is over seventy and African-American. To support her age claims, Arnold cited multiple instances when her supervisors commented on her age and asked about her plans for retirement. Arnold claimed that after learning she had recently celebrated her birthday, one of her supervisors stated, “Oh, I never knew you were that old” and “Oh, how come you haven’t retired?” To support her association claims, Arnold alleged Dignity failed to follow up on a complaint she made that her African-American coworkers were being mistreated.
Ultimately, the trial court decided in favor of Dignity’s pre-trial motion, finding that Dignity established legitimate, non-discriminatory reasons that were not pretextual for terminating Arnold’s employment. Arnold appealed the trial court’s decision regarding her claims for discrimination based on her age and association with African-Americans.
The FEHA makes it unlawful for an employer to discriminate against an employee because of several protected classifications, including age and association with those of a protected status. California courts use a three-stage burden-shifting test to analyze FEHA discrimination claims. Under this test, the employee must first establish the essential elements of a discrimination claim. If the employee can do so, the burden shifts back to the employer to show that the allegedly discriminatory action was taken for a legitimate, non-discriminatory reason. If the employer meets this burden, the presumption of discrimination disappears and the employee then has the opportunity to attack the employer’s legitimate reason as the pretext for discrimination.
On appeal, Arnold argued that the trial court was wrong to enter judgment in favor of Dignity because Arnold had presented evidence that Dignity’s reasons for terminating her employment were not credible. She also argued she presented substantial evidence of age and association discrimination, including that her supervisors repeatedly used age-based discriminatory language and did not respond to her complaints regarding racially prejudiced behavior toward other African-American employees. The Court of Appeal, however, found that the trial court properly entered judgment in favor of Dignity.
Regarding Arnold’s age discrimination claim, the court noted that the supervisors who made comments about her age were not materially involved in the decision to terminate her employment. Thus, any comments Arnold’s supervisors made did not support the conclusion Dignity terminated her based on discriminatory animus. The court also concluded that age-based comments – such as the supervisors saying they did not know she was “that old” or asking her why she had not retired – did not indicate a discriminatory motive. The court opined that the comments one of Arnold’s supervisors made around her birthday occurred during “a natural and appropriate occasion for discussing a person’s age and future plans.”
As to Arnold’s association discrimination claim, the court found that the employee to whom Arnold complained about the mistreatment of other African-American employees was also not involved in Arnold’s termination. There was no evidence that anyone involved in the decision to terminate Arnold’s employment knew about her complaint or that it factored into the determination to fire Arnold. Accordingly, the Court of Appeal held that the trial court did not err in entering judgment in favor of Dignity for Arnold’s claim for association discrimination.
Arnold v. Dignity Health (2020) 53 Cal.App.5th 412.
This case concluded that the comments Arnold’s supervisors made about her age did not indicate a discriminatory motive, and were “benign and even complimentary.” Regardless, it is poor form for an employer to express surprise that an employee is “that old.” LCW advises schools to refrain from asking questions about retirement to an employee who has not announced they are retiring or from making comments about an employee’s age to limit the risk of an age discrimination claim and to be a respectful employer.