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Stray Remark That Assistant Dean “Wanted Someone Younger” Tanks Employer’s Motion
Linda Jorgensen started working at Loyola Marymount University (University) in 1994. In July 2010, the University appointed Stephen Ujlaki to be the Dean of its School of Film and Television (School). At the time, Jorgensen was over 40 years old.
In 2014, Ujlaki promoted Johana Hernandez to be an Assistant Dean. Hernandez was 30 years old, and she had begun work at the school four years earlier as an administrative assistant. Jorgensen helped train Hernandez, and claimed that Ujlaki “made Hernandez his favorite.” Jorgensen alleged she was far more qualified and experienced for the Assistant Dean position than Hernandez. In a particularly insensitive decision, Ujlaki ordered Jorgensen to report to Hernandez.
Jorgensen further claimed that after Hernandez was promoted, Ujlaki and Hernandez sidelined her and left her with few duties. Jorgensen attributed her lost promotion and marginalization to age and gender discrimination. Jorgensen complained to the University, but it rejected her claims. Jorgensen then alleged she was punished for her complaint. Jorgensen sued the University in 2018 and resigned in 2019.
In the trial court, the University contended that Jorgensen was a problem employee who became insubordinate when Ujlaki and his team tried to improve the way the School operated. One Associate Dean – a woman older than Jorgensen – described Jorgensen as the “the most difficult employee I have ever had to manage by orders of magnitude.” The University also presented facts that Hernandez’s promotion was due to her competence, not age discrimination.
The University moved for summary judgment, arguing that the lawsuit had no merit. The trial court excluded from evidence a sworn statement from Carolyn Bauer, a former School employee. Bauer declared that while she was working at the School, a person expressed interest in another position that was unrelated to the Assistant Dean position Jorgensen sought. According to Bauer’s statement, when Bauer told Hernandez about the person’s interest in the other position, Hernandez responded she “wanted someone younger”. Without this evidence, the trial court found for the University. Jorgensen appealed.
The Court of Appeal concluded that the trial court was wrong to exclude Bauer’s sworn statement. Under California precedent, even a non-decision maker’s age-based remark “may be relevant, circumstantial evidence of discrimination.” Thus, even though Hernandez and not Ujlaki made this age-related remark about another position, the remark was relevant because it showed Hernandez could influence Ujlaki, the School’s top decision-maker, on all issues including hiring and promotion. The court noted that Ujlaki invited Hernandez to participate in the interviews for Assistant Dean positions and that they discussed hiring decisions. In addition, Ujlaki gave Hernandez a series of special assignments that flouted formal organization lines. Thus, a jury could reasonably conclude Hernandez could influence Ujlaki’s decisions. The trial court erred in excluding Bauer’s statement because Bauer quoted Hernandez word-for-word, and Hernandez’s remark explicitly described her state of mind.
The Court of Appeal next considered whether Hernandez’s remark would have changed the trial court’s analysis. In a discrimination case, the employee must first establish a prima facie case, in order to raise a presumption of discrimination. Second, the employer may rebut that presumption by showing it acted for legitimate and nondiscriminatory reasons. Finally, the employee may attack the employer’s legitimate reasons as pretextual or offer other evidence of improper motives.
Here, the Court of Appeal concluded Hernandez’s remark would have changed the trial court’s analysis. Hernandez’s remark she wanted someone younger was unambiguous. Also, there was evidence that: Ujlaki created a pay differential between male and female Associate Deans hired concurrently, and Hernandez was an influential advisor to Ujlaki. People other than Jorgensen were also critical of Ujlaki’s leadership. An outside consultant also evaluated Ujlaki’s deanship and concluded the faculty consensus was the situation was “too dysfunctional to be allowed to continue.” Taking all this evidence into account, the court held that the trial court improperly decided in the University’s favor. The court remanded the case for further proceedings.
Jorgensen v. Loyola Marymount Univ. (2021) 68 Cal.App.5th 882.
California’s stray remark precedent makes employer motions for summary judgment very difficult to win. A stray remark regarding an unrelated position can still impact a discrimination case, even if someone other than the final decision maker makes the remark.