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Telling Worker He’s ‘Slow’ Can Constitute Age-Discrimination—Court of Appeal
By a MetNews Staff Writer
Telling a worker he is “slow” can give rise to causes of action for age discrimination, Div. Three of the Fourth District Court of Appeal has held, in a 2-1 opinion.
Writing for the majority in an unpublished opinion filed Monday was Justice Maurice Sanchez, joined by Acting Presiding Justice Eileen C. Moore. Justice Joanne Motoike agreed with the majority that the defendant was properly granted summary adjudication as to retaliation and punitive damages but dissented as to the age discrimination claim.
Plaintiff Mitchell Freem testified in a deposition that a manager at Federal Express, Andrew Sweet, treated him “like I am old and slow” and “made a comment for me being slow and not getting stuff done.”
Orange Superior Court Judge Richard Y. Lee had granted summary adjudication in favor of the employer as to four claims by Freem, who was fired based on falsifying company documents, which he contended was pretextual. Div. Three’s majority on Monday granted a writ of mandate ordering the court to reinstate causes of action based on alleged age discrimination.
Reasonable Finding
“Freem presented evidence that Sweet called him ‘slow,’ which a factfinder could reasonably find was an age-related comment,” Sanchez wrote.
He elaborated:
“Freem satisfied his burden of presenting evidence raising a triable issue as to whether the cause for his termination was pretextual….[H]e pointed to evidence that Sweet called him ‘slow,’ which could reasonably imply age.”
Sanchez noted that in investigating whether Freem had falsified records as to work he had done, Sweet “only investigated security video footage for Freem and not other employees who had discrepancies on their documentation,” remarking: “A jury could conclude Sweet’s harassing comments, when considered in combination with these other facts, were due to Freem’s age.”
He said “[t]There is no doubt Sweet was a person of authority and spoke to Freem in a condescending and patronizing manner,” could be viewed as age discrimination.
Motoike’s Dissent
Motoike protested in her concurring and dissenting opinion:
“The record contains no evidence his age (53 years) had anything to do with the termination of his employment or his supervisor’s harassing behavior. This is the relatively rare case where an employer has presented an overwhelming amount of relevant, undisputed evidence establishing the dearth of a triable issue of material fact as to those claims.”
She maintained that a comment that denominating an employee as slow is not actionable, maintaining that “[s]uch a comment on Freem’s work performance… cannot support a claim for harassment” under the Fair Employment and Housing Act (“FEHA”).
The jurist said that “it was within Sweet’s role as a supervisor of vehicle technicians to ensure” that work was “being performed timely” and that “evidence Sweet told Freem he was slow is insufficient to create a triable issue of fact that Freem was harassed in violation of FEHA,” adding:
“Furthermore, even if such evidence could constitute an instance of harassment under FEHA, there is no evidence supporting such harassing conduct was based on Freem’s age….Sweet informed several vehicle technicians, including Freem, they needed to pick up the pace….In other words, they were all too slow, in Sweet’s estimation…and needed to work faster….”
The case is Freem v. Superior Court (Federal Express Corporation), G061920.
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