But a ruling last week by a California appellate court has called into question – at least legally – whether the popular software developer properly treats employees of all ages with the reinstatement of an ageism lawsuit against Google.
The California 6 th District Court of Appeal threw out a decision by Santa Clara County Superior Court Judge William J. Elfving which dismissed a July 2004 discrimination suit by plaintiff Brian Reid. Reid, an electrical engineer, was 52 when the developer of the popular Web search engine hired him as Director of Operations and Engineering in June 2002. He held a doctorate in Computer Science, and had been a former Associate Professor in Electrical Engineering at Stanford University, but was terminated two years later after being told he was not a “cultural fit” with the software company.
In writing for the appellate court, Presiding Justice Conrad L. Rushing declared that Elfving was wrong in not letting the case go to a jury. “We conclude that Reid produced sufficient evidence that Google’s reasons for terminating him were untrue or pretextual, and that Google acted with discriminatory motive such that a fact finder would conclude Google engaged in age discrimination.” Rushing wrote.
According to the opinion, Reid was first demoted in 2004 to run a Google program designed to help retain engineers by encouraging them to get a Master’s Degree in Engineering by attending courses taught by Carnegie Melon University professors at Google. Reid received no staff and no budget for the new assignment, while two other executives, one 15 years younger and one 20 years younger, split his original duties, according to the opinion. Soon after, Google’s Vice President of Engineering Wayne Rosing, who had hired Reid and served as his supervisor, told Reid the graduate studies program was being dropped and that he was being terminated.
Reid was told he could apply for other Google jobs – an ultimately unsuccessful effort, according to the appellate opinion. The opinion quotes e-mails exchanged between high-level Google executives about how they could best coordinate their efforts to make certain he was not hired elsewhere in the company.
During his tenure at Google, Reid was subject to age-related derogatory comments by employees, according to the court opinion. For example, Urs Hoelzle, another Google executive, told Reid his opinions and ideas were “obsolete,” and “too old to matter.” Hoelzle told Reid he was “slow,” fuzzy,” “sluggish,” “lethargic,” did not “display a sense of urgency,” and “lack[ed] energy.” Hoelzle, it was noted in the opinion, made age related comments to Reid “every few weeks….”
Reid was also subject to derogatory comments from other colleagues who referred to Reid as an “old man,” an “old guy,” and an “old fuddy-duddy.” They told him his knowledge was ancient, and joked that the CD jewel case office placard should be an “LP” instead of a “CD.”
Those sentiments were echooed in Google’s performance review as quoted in the appellate opinion, Rosing noted “Adapting to the Google culture is the primary task for the first year here….Right or wrong, Google is simply different: Younger contributors, inexperienced first line managers, and the super fast pace are just a few examples of the environment.” In court papers, Google would later contend that the comments were only “stray remarks” that do not represent strong enough evidence to allow Reid’s suit to go to trial.
Reid also asserted in court papers that a general “youthful” atmosphere at Google, including employees participating in recreational activities like hockey, foosball and skiing, demonstrated an environment biased against older workers.
The lower court had found that Google's evidence, while "not sufficient to prove that Plaintiff cannot establish a prima facie case of age discrimination," "...is sufficient to prove that [Google] had a legitimate nondiscriminatory reasons for . . . terminating [plaintiff's] employment in February 2004." Elfving went on to find Reid's evidence was "not sufficient to raise a permissible inference that in fact, [Google] considered Plaintiff's age as a motivating factor in . . . terminating his employment."
However Rushing and the other appellate judges found Elfving was premature in diverting the case from a jury because both sides had evidence jurors should have been able to evaluate.
"We note that there is undisputed evidence to support both a prima facie case of age discrimination, as well as a legitimate basis for Reid's termination," Rushing asserted. "Specifically, Reid was a member of a protected class, in that he was 54 years old at the time of his termination; he was performing competently in the position he held, both in the Operations and Engineering Departments, and as head of the newly created graduate program; he suffered an adverse employment action of termination; and other circumstance suggests age discrimination as a motive in Google's action." On the other hand, "Google establishes a legitimate, nondiscriminatory reason for the termination as elimination of the graduate program, and therefore, job elimination."
Rushing also noted in his opinion that an expert hired by Reid had analyzed pay and promotion patterns at Google's Operations and Engineering Department and found that younger employees were better treated in terms of job evaluations and bonuses. For example, according to the opinion, Reid's expert found a 29% decrease in bonus amount related to every 10 year increase in age."
Again, the appellate judges found fault with how the trial court handled Reid's evidence, particularly, since Google dismissed the data as based on an inadequate sample size but did not refute the findings. Declared Rushing: "Google does little more than lob attacks at the evidence with nothing to substantiate its assertions."
"In granting summary judgment in favor of Google, the trial court resolved a number of factual issues in dispute, such as the weight and value of Reid's statistical evidence, the validity and weight of the ageist comments made by decision makers in Reid's demotion and termination, and whether the newly created position of head of Google's graduate program was in fact a way-station for Reid's ultimate termination," Rushing concluded in the opinion. "These evidentiary evaluations are clearly the purview of the jury, and not the decision of the trial court on summary judgment."
The Google appellate ruling is here .
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