Specifically, Google claims that the Court of Appeal erred in considering: (1) Hölzle’s statements that Reid was “slow,” “fuzzy,” “sluggish,” lethargic,” did not “display a sense of urgency,” and “lack[ed] energy” and his ideas were “obsolete” and “too old to matter”; (2) Rosing’s statement to Reid at or around the time of his termination that he was not a “cultural fit”; and (3) coworkers’ comments referring to Reid as an “old man” and “old fuddy-duddy,” and a coworker’s joke that his office placard should be an “LP” instead of a “CD.” Google argues that the statements were irrelevant because they were made by non-decision-makers, were ambiguous, and were unrelated to the adverse employment decision.(opinion at page 29)
The Court does a good job of setting out the Stray Remarks Doctrine, including its attribution to Justice O'Connor's opinion in Price Waterhouse v. Hopkins, 490 U.S. 228, 276 (1989). Of significance, the Court notes Justice O'Connor did not say stray remarks had no probative value, only that they do not constitute direct evidence of discrimination if they are from non-decision makers and unrelated to the claimed adverse decision. The California Court rejected categorical exclusion of stray remarks at the summary judgement stage of the litigation. It is a well reasoned decision which appears to be at odds with the decisions of several federal circuits in cluding the 5th Circuit.
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