Summary judgment is difficult to win. We think it’s harder in California state court, which is why we typically try to remove cases to federal court. And it keeps getting harder. Sandell v. Taylor-Listug, Inc. is an example. The applicable procedural rule for summary judgment motions sounds fairly straightforward: “If the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.”
But the application of this rule can be tricky.
In Sandell, the plaintiff filed a complaint against Taylor-Listug alleging two causes of action under the Fair Employment and Housing Act—disability discrimination and age discrimination. The employer filed a summary judgment motion arguing that its decision was “based on legitimate, nondiscriminatory factors” The trial court issued an order granting Taylor-Listug’s motion in full. But the Court of Appeals reversed.
Specifically, the Court of Appeals focused on whether an issue of fact was presented regarding plaintiff’s job performance. It found that such an issue was present: “The fact that the parties argue extensively about a number of factual issues, including the meaning of various sales numbers, whether Sandell did or did not respond to e-mails in a timely fashion, and whether the sales team did or did not complain about Sandell’s leadership, demonstrates why this case is not an appropriate one for summary judgment and instead should be heard by a jury.”
The upshot of this case is clear: terminations based upon an objective “legitimate and nondiscriminatory factor” (e.g., unauthorized absences) are better suited for summary judgment than terminations based upon subjective factors. Moreover, employers should carefully document expectations with respect to performance in an effort to mitigate subsequent ambiguities.