50 Cal.4th 512, S158965, Reid v. Google, Inc.

Docket Nº:S158965
Citation:50 Cal.4th 512, __ Cal.Rptr.3d __, __ P.3d __
Opinion Judge:CHIN, J.
Party Name:BRIAN REID, Plaintiff and Appellant, v. GOOGLE, INC., Defendant and Respondent.
Attorney:Duane Morris, Barry L. Bunshoft, Ray L. Wong, Paul J. Killion, Lorraine P. Ocheltree, Eden E. Anderson and Allegra A. Jones for Plaintiff and Appellant. Charlotte E. Fishman for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant. Thomas W. Osborne, Mel...
Judge Panel:George, C. J., Kennard, J., Baxter, J., Werdegar, J., Moreno, J., and Corrigan, J., concurred.
Case Date:August 05, 2010
Court:Supreme Court of California

Page 512

50 Cal.4th 512

__ Cal.Rptr.3d __, __ P.3d __

BRIAN REID, Plaintiff and Appellant,


GOOGLE, INC., Defendant and Respondent.


Supreme Court of California

August 5, 2010

Santa Clara County Super. Ct. No. CV023646, Ct.App. 6 H029602, Judge: William J. Elfving

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Duane Morris, Barry L. Bunshoft, Ray L. Wong, Paul J. Killion, Lorraine P. Ocheltree, Eden E. Anderson and Allegra A. Jones for Plaintiff and Appellant.

Charlotte E. Fishman for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant.

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Thomas W. Osborne, Melvin Radowitz and Barbara A. Jones for AARP as Amicus Curiae on behalf of Plaintiff and Appellant.

Wilson Sonsini Goodrich & Rosati, Fred W. Alvarez, Marina C. Tsatalis, Amy K. Todd, Marvin Dunson III, Koray J. Bulut, Elizabeth C. Tippett, Jeanna Steele, Gary M. Gansle; Paul, Hastings, Janofsky & Walker and Paul W. Cane, Jr., for Defendant and Respondent.

Greines, Martin, Stein & Richland and Robert A. Olson for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Defendant and Respondent.

Orrick, Herrington & Sutcliffe, Gary R. Siniscalco, Patricia K. Gillette, Greg J. Richardson and Lynne C. Hermle for Employers Group and California Employment Law Council as Amici Curiae on behalf of Defendant and Respondent.

Jonathan B. Steiner, Jay-Allen Eisen, Jon B. Eisenberg, Dennis A. Fischer, Steven L. Mayer, Robert A. Olson, Douglas R. Young; Greines, Martin, Stein & Richland and Robin Meadow for California Academy of Appellate Lawyers as Amicus Curiae.



Plaintiff Brian Reid filed an age discrimination lawsuit against his former employer, Google, Inc. The trial court granted Google’s summary judgment motion relating to plaintiff’s claims. The Court of Appeal reversed.

In this case, we decide two issues. First, does a trial court’s failure to rule on a party’s evidentiary objections relating to a summary judgment motion waive the objections on appeal? Second, should California courts follow the federal courts in adopting the “stray remarks doctrine” in employment discrimination cases? Under this doctrine, statements that non-decision-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.

In this case, the Court of Appeal found that the trial court’s failure to rule expressly on evidentiary objections did not waive those objections on appeal. Specifically, it ruled that Google’s filing of written evidentiary objections before the summary judgment hearing was sufficient to preserve those

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objections on appeal. Accordingly, it reviewed Google’s evidentiary objections on the merits. The Court of Appeal further refused to apply the stray remarks doctrine to exclude alleged discriminatory statements that Reid’s supervisors and coworkers made. In reversing the trial court’s grant of Google’s summary judgment motion, the Court of Appeal considered those alleged statements and other evidence Reid presented in opposition to the motion.

We agree with the Court of Appeal’s conclusions. Regarding the waiver issue, the Court of Appeal correctly determined that a finding of waiver does not depend on whether a trial court rules expressly on evidentiary objections and that Google’s filing of written evidentiary objections before the summary judgment hearing preserved them on appeal. (Code Civ. Proc., § 437c, subds. (b)(5), (d).)1 After a party objects to evidence, the trial court must then rule on those objections. If the trial court fails to rule after a party has properly objected, the evidentiary objections are not deemed waived on appeal. Regarding the stray remarks issue, the Court of Appeal also correctly determined that application of the stray remarks doctrine is unnecessary and its categorical exclusion of evidence might lead to unfair results.


Reid worked at Google between June 2002 and February 2004. Google’s vice-president of engineering, Wayne Rosing (then age 55) hired Reid (then age 52) as director of operations and director of engineering. Reid has a Ph.D. in computer science and is a former associate professor of electrical engineering at Stanford University.

In addition to Rosing, Reid also interacted with other high-level employees, including chief executive officer (CEO) Eric Schmidt (then age 47), vice-president of engineering operations Urs Holzle (then age 38), and founders Sergey Brin (then age 28), and Larry Page (then age 29). Reid reported to Rosing and at times to Holzle.

In a review of Reid’s first year’s job performance (his only written performance review while employed at Google), Rosing described Reid as having “an extraordinarily broad range of knowledge concerning Operations, Engineering in general and an aptitude and orientation towards operational and IT issues.” Rosing noted that Reid “project[ed] confidence when dealing with fast changing situations, ” “ha[d] an excellent attitude about what ‘OPS’ and ‘Support’ mean, ” and was “very intelligent, ” “creative, ” “a terrific

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problem solver, ” and that the “vast majority of Ops [ran] great.” Rosing gave Reid a performance rating indicating he “consistently [met] expectations.”

In Reid’s performance review, Rosing commented: “Adapting to 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.” Reid received bonuses from February 2003 to February 2004, including stock options for 12,750 shares.

Reid alleged that Holzle and other employees made derogatory age-related remarks to Reid while he was employed at Google. According to Reid, Holzle told Reid that his opinions and ideas were “obsolete” and “too old to matter, ” that he was “slow, ” “fuzzy, ” “sluggish, ” and “lethargic, ” and that he did not “display a sense of urgency” and “lack[ed] energy." Holzle allegedly made age-related comments to Reid “every few weeks.” Other coworkers called Reid an “old man, ” an “old guy, ” and an “old fuddy-duddy, ” told him his knowledge was ancient, and joked that Reid’s CD (compact disc) jewel case office placard should be an “LP” instead of a “CD.”

In September 2003, cofounder Brin sent an e-mail to several executives commenting about Google’s payroll: “We should avoid the tendency towards bloat here particularly with highly paid individuals.” Rosing responded, “Excellent memo and very timely.... Let me disclose what I am up to organizationally.... We are looking for a senior Director (note I did not capitalize Sr.) or VP level person to run this operation....”

In October 2003, Rosing removed Reid from the director of operations position, and relieved him of his responsibilities as director of engineering, though he was allowed to retain the title. Holzle, 15 years younger than Reid, assumed Reid’s position as director of operations, and Douglas Merrill, 20 years younger than Reid, took over his other duties. Google asked Reid to develop and implement an in-house graduate degree program (“Graduate Degree Program”) and an undergraduate college recruitment program (“Google Scholar Program”). The Graduate Degree Program was aimed at retaining engineers by allowing them to attend courses that Carnegie Mellon University professors taught at Google and to obtain master’s degrees in engineering. According to Reid, Google’s CEO, Schmidt, assured Reid that the graduate program was important and would last at least five years. But Reid was given no budget or staff to support it.

In January 2004, Brin, Page, Rosing, and Holzle collectively decided not to pay Reid a bonus for 2003. CEO Schmidt sent an e-mail to Rosing asking for “a proposal from [him]... on getting [Reid] out....” On February 7, 2004,

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Rosing responded to Schmidt, expressing concern about the decision not to pay Reid a bonus. He stated that he was “having second thoughts about the full zero out of the $14K bonus [versus] treating it consistent with all similarly situated performers.” Rosing suggested that Reid should receive a bonus of $11,300, in addition to a severance package, to avoid “a judge concluding we acted harshly.”

On February 13, 2004, Rosing told Reid the engineering department no longer had a place for him. Google asserts Rosing told Reid that the Graduate Degree Program was being eliminated and that it terminated Reid because of job elimination and poor performance. On the other hand, Reid maintains he was given no reason for his termination other than lack of “cultural fit, ” and he was told the graduate program would continue and his termination was not performance based.

After Reid asked if he could look for a job elsewhere in the company, Rosing encouraged him to apply for positions with other departments. However, e-mails circulating among various department heads indicated that no other department intended to hire Reid. Vice-president of business operations Shona Brown wrote to Rosing and human resources director Stacy Sullivan, asserting, “you should make sure I am appropriately prepped. My line at the moment is that there is no role for him in the HR organization.” Sullivan responded: “Seems [Reid’s] first interest is to continue his work on the college programs he’s been working on.... He’ll explore that option first with both of you.... I propose [Brown]... meets with [Reid] [on February 24] and lets him know there’s no role [for him] in her...

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