Decisions — continued from Previous Page
it had been used by trial courts to weigh plaintiff’s evidence at the summary judg- ment stage. “It allows a court to weigh and assess the remarks in isolation, and to
disregard the potentially damaging nature of discriminatory remarks simply because they are made by nondecisionmakers or [made] by decisionmakers unrelated to
the decisional process.” (Id. at 540.) Citing its earlier decision in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856 [107 Cal.Rptr.2d 841], Reid reaf- firmed that “the court may not weigh the plaintiff’s evidence or inferences against the defendants’ as though it were sitting as the trier of fact.” The Reid Court then noted with disapproval that, notwithstand- ing its pronouncement in Aguilar, appel- late courts have improperly weighed evi- dence in applying the “stray remarks doc- trine.” (Reid, supra, 50 Cal.4th at 540.) The court also rejected the “stray
remarks doctrine” as contrary to section 473c, subdivision (c), which directs that, at the summary-judgment stage, courts “shall consider all of the evidence set forth in the papers . . . and all inferences reasonably deducible from the evidence.” (Id. at 541.) Additionally, Reid recognized that a single discriminatory remark by a non-decisionmaker may not suffice to defeat summary judgment, “[b]ut when combined with other evidence of pretext, an otherwise stray remark may create an ensemble [that] is sufficient to defeat summary judgment.” (Id. at 542.) Perhaps most importantly, Reid
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affirms the “cat’s paw” theory, observing that discriminatory remarks by a non-deci- sionmaking employee can influence a decision maker. “If [the formal decision- maker] acted as the conduit of [an employee’s] prejudice – his cat’s paw – the innocence of [the decision maker] would not spare the company from liabili- ty.” (Id. at 542.) Thus, discriminatory remarks made outside the decisionmak- ing process or by co-workers must be admitted if they may tend to establish that the discriminatory attitudes of co-workers or others influenced the decisionmakers involved in the termination. In short, because of the wide variety of facts and circumstances surrounding each discrimi- nation case, Reid mandates that all evi- dence of discriminatory remarks and con- duct be considered under a “totality of the circumstances” test and their proba- tive value weighed on a case by case basis. As with Roby and Johnson, Reid broad-
ens the scope of evidence admissible to prove an employer’s discriminatory
86— The Advocate Magazine APRIL 2011
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