Reid v. Google, Inc.
California rejects the federal “stray remarks doctrine” as a basis for categorically excluding discriminatory remarks at summary judgment, and holds that written evidentiary objections are preserved for appeal even when the trial court fails to rule on them.
Reid v. Google, Inc. (2010) 50 Cal.4th 512
Discrimination
Age (FEHA)
Stray Remarks
Summary Judgment
Evidentiary Objections
In brief. A unanimous California Supreme Court declined to import the federal “stray remarks doctrine,” under which “statements that nondecision makers make or that decision makers make outside of the decisional process are deemed ‘stray,’ and they are irrelevant and insufficient to avoid summary judgment.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 516.) Such a categorical exclusion, the Court held, “might lead to unfair results,” because “[t]he task of disambiguating ambiguous utterances is for trial, not for summary judgment.” (Id. at pp. 517, 541.) Separately, it held that written evidentiary objections “preserved them on appeal” even where the trial court never ruled. (Id. at pp. 516–517.)
Facts
Google hired Brian Reid in 2002 as director of operations and director of engineering. (50 Cal.4th at p. 517.) Reid held a Ph.D. in computer science and had been an associate professor of electrical engineering at Stanford; he was 52 when hired by Google’s vice-president of engineering, Wayne Rosing (then 55), and reported to Rosing and to vice-president Urs Hölzle (then 38), in a leadership group that included founders Sergey Brin and Larry Page (then in their late twenties). (Id. at pp. 517–518.) Reid’s only written performance review praised his “extraordinarily broad range of knowledge” and “excellent attitude.” (Id. at p. 518.) Reid alleged that supervisors and coworkers nonetheless made repeated age-related comments — that he was “obsolete,” “too old to matter,” “sluggish,” “slow,” and “lethargic,” an “old man,” an “old guy,” and an “old fuddy-duddy,” that his ideas were “too old to matter,” and that he was not a good “cultural fit.” (Id. at pp. 518–519.) After about a year and a half, Google removed Reid from his engineering-director role and then terminated him, citing a “job elimination,” though Reid contended the stated reasons were pretextual. (Id. at pp. 518–519.) He sued for age discrimination under the FEHA. (Id. at p. 519.)
Procedural history
The trial court granted Google’s motion for summary judgment but did not expressly rule on Google’s 31 pages of written evidentiary objections to Reid’s opposing evidence. (50 Cal.4th at pp. 519, 521–522.) The Court of Appeal reversed, holding that Google’s written objections were preserved for appeal despite the absence of an express ruling, and that the stray remarks doctrine should not be applied to exclude the alleged discriminatory statements; considering that evidence, it found triable issues of age discrimination. (Id. at pp. 516–517, 519–520.) The Supreme Court granted review and affirmed the Court of Appeal on both points. (Id. at pp. 516–517, 545.)
Issue
Two questions: (1) whether a party’s written evidentiary objections at summary judgment are waived on appeal when the trial court fails to rule on them; and (2) whether California should adopt the federal “stray remarks doctrine,” treating discriminatory remarks by non-decisionmakers or outside the decisional process as categorically irrelevant at summary judgment. (50 Cal.4th at pp. 515–516.)
Holding
On the first issue, “a finding of waiver does not depend on whether a trial court rules expressly on evidentiary objections,” and a party’s timely written objections “preserved them on appeal.” (50 Cal.4th at pp. 516–517; see Code Civ. Proc., § 437c, subds. (b)(5), (d).) “If the trial court fails to rule after a party has properly objected, the evidentiary objections are not deemed waived on appeal.” (Id. at p. 517.) On the second, the Court declined to adopt the stray remarks doctrine, agreeing that “application of the stray remarks doctrine is unnecessary and its categorical exclusion of evidence might lead to unfair results.” (Ibid.) A trial court “must review and base its summary judgment determination on the totality of evidence in the record, including any relevant discriminatory remarks.” (Id. at p. 541.) Affirmed. (Id. at p. 545.)
Reasoning
1. Preservation of evidentiary objections. The Court read Code of Civil Procedure section 437c, subdivisions (b)(5) and (d), to mean that objections are waived only if not made in the first instance — not if the court fails to rule. (50 Cal.4th at pp. 521–532.) Because “Google submitted 31 pages of written objections to Reid’s evidence” and raised them properly, the objections survived for appellate review, and on appeal the objected-to evidence is “presumed” to have been overruled and considered. (Id. at pp. 521–522, 534.) The Court declined to impose on the objecting party the burden of securing an express ruling, noting the practical realities of crowded summary judgment calendars. (Id. at pp. 531–534.)
2. The federal stray remarks doctrine. The Court traced the doctrine to Justice O’Connor’s concurrence in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, where “stray remarks” language first appeared, and to its later expansion in the lower federal courts into a tool for excluding remarks made by non-decisionmakers or away from the decisional moment. (50 Cal.4th at pp. 537–539.) Applied categorically, the Court explained, the doctrine “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 non-decisionmakers or made by decisionmakers unrelated to the decisional process.” (Id. at p. 540.)
3. Why categorical exclusion is wrong at summary judgment. The Court held that weighing such remarks is a jury function, not a summary-judgment screen: “Determining the weight of discriminatory or ambiguous remarks is a role reserved for the jury,” and “[t]he task of disambiguating ambiguous utterances is for trial, not for summary judgment.” (50 Cal.4th at p. 541.) A categorical rule “stray[ing]” comments out of the record conflicts with section 437c, 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.” (Ibid.) Even individually weak remarks “may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence.” (Ibid.)
4. Totality of the circumstances, not a label. Rather than a categorical exclusion, the Court endorsed a holistic inquiry: “a trial court must review and base its summary judgment determination on the totality of evidence in the record, including any relevant discriminatory remarks.” (50 Cal.4th at p. 541.) The relevance and weight of any remark turn on “who made the comments, when they were made in relation to the adverse employment decision, and in what context they were made.” (Ibid.) That “totality of circumstances analysis successfully winnows out cases too weak to raise a rational inference that discrimination occurred,” while preserving genuinely triable disputes for the jury. (Ibid.)
5. Summary judgment is not a trial. Reaffirming the standard, the Court stressed that on summary judgment a “court may not weigh the plaintiff’s evidence or inferences against the defendants as though it were sitting as the trier of fact.” (50 Cal.4th at pp. 540–541.) The stray remarks doctrine, by allowing trial courts to discount probative comments at the pleading-screen stage, would invade that province; whether judgment as a matter of law is appropriate instead “depend[s] on a number of factors, including the strength of the plaintiff’s prima facie case [and] the probative value of the proof that the employer’s explanation is false.” (Id. at p. 541.) The Court expressly did not hold that age-related remarks are always sufficient to defeat summary judgment — only that they may not be excluded by rote. (Id. at pp. 539–541.)
Significance
Reid is a foundational California decision on the mechanics of employment summary judgment. Its rejection of a categorical stray remarks doctrine means that “me too,” supervisor, and coworker comments — even by people not formally part of the decision — must be weighed in the totality of the evidence, a major practical advantage for plaintiffs opposing summary judgment. Its evidentiary-objections holding reshaped motion practice statewide: written objections need not be expressly ruled upon to be preserved, and unruled objections are presumed overruled on appeal. The decision operates within the FEHA proof structure of Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 and the federal pretext line of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, and Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, supplying the evidentiary rule for how discriminatory remarks factor into the pretext inquiry. See the Review’s coverage of the proof-framework line.
Key quotes
“Determining the weight of discriminatory or ambiguous remarks is a role reserved for the jury. . . . The task of disambiguating ambiguous utterances is for trial, not for summary judgment.” (Reid, supra, 50 Cal.4th at p. 541.)
“[A] trial court must review and base its summary judgment determination on the totality of evidence in the record, including any relevant discriminatory remarks.” (Ibid.)
“If the trial court fails to rule after a party has properly objected, the evidentiary objections are not deemed waived on appeal.” (Id. at p. 517.)
Read the full opinion (California Supreme Court — full text) →
Practice pointer
Two concrete moves. First, oppose summary judgment by assembling all discriminatory remarks — including those by coworkers and non-decisionmakers — and argue their cumulative weight under Reid’s totality test; do not let the defense excise them as “stray.” Tie each remark to who said it, when, and in what context, because those factors drive relevance and weight. Second, on the procedural side, always make written evidentiary objections (and request rulings), but know that under Reid an unruled objection is preserved and presumed overruled — so a missing ruling does not forfeit the point on appeal. Defendants should still press for express rulings to build a clean record. Frame the substantive claim within the Guz burden-shifting structure.
Open questions
How much weight remarks by non-decisionmakers ultimately carry — and when a “cat’s paw” theory links a biased non-decisionmaker to the formal decision — remains fact-intensive after Reid. The opinion declined to decide whether the particular remarks here sufficed to defeat summary judgment, leaving the line between admissible-but-weak and triable evidence to develop case by case, and courts continue to apply Reid’s totality approach unevenly at the summary-judgment stage.