CUMMINGS v. BENCO BUILDING SERVICES (1992)

Plaintiff and appellant Channie Cummings was employed by defendant and respondent Benco Building Services as the supervisor of the night janitorial crew in a large Century City office building.   Respondent terminated appellant from this position.   Appellant filed this action alleging that respondent unlawfully discriminated against appellant on the basis of her age.  (Appellant was 67 at the time of termination.)   The trial court granted summary judgment in favor of respondent on the ground that respondent did not discriminate against appellant based on her age and appellant raised no triable issues of fact as to age discrimination.  (Code Civ.Proc., § 437c, subd. (c).)

Before describing the evidence in support of and opposition to summary judgment, we summarize the burdens of proof which are normally applied in cases where intentional employment discrimination is alleged.   Basically, respondent showed that respondent terminated appellant from her position because respondent was dissatisfied with appellant's performance in light of frequent complaints by the tenants and building management that the cleaning service was unsatisfactory.   The issue on appeal is whether, in opposition to summary judgment, appellant produced any substantial evidence that respondent's proffered reason was a mere pretext for unlawful age discrimination.   Finding that appellant produced no substantial evidence of age discrimination we affirm.

I

OVERVIEW OF BURDEN OF PROOF

Appellant is suing under Government Code section 12941, that section of the California Fair Employment and Housing Act (FEHA) which prohibits an employer to discriminate against any individual over the age of 40 on the ground of age.   In interpreting this law California courts have adopted the framework developed by federal courts in employment discrimination claims arising under Title VII of the federal Civil Rights Act, 42 United States Code section 2000e et seq., and under the federal Age Discrimination in Employment Act (ADEA), 29 United States Code section 621 et seq.  (Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1399–1400, 245 Cal.Rptr. 606;  Levy v. Regents of University of California (1988) 199 Cal.App.3d 1334, 1343–1344, 245 Cal.Rptr. 576.)

 In the trial of such cases the plaintiff first has the burden to make a prima facie case by showing that the plaintiff was in a protected class, was performing satisfactorily and was demoted or terminated under circumstances which give rise to an inference of unlawful discrimination.   Once the plaintiff establishes a prima facie case, the burden shifts to the employer to produce evidence that plaintiff was demoted or terminated for a legitimate nondiscriminatory reason.   After the employer proffers a nondiscriminatory reason, the plaintiff has the burden of persuasion at trial to prove that a discriminatory reason more likely motivated the employer or that the employer's explanation is unworthy of credence or constitutes a mere pretext for unlawful discrimination.  (Stephens v. Coldwell Banker Commercial Group, Inc., supra, 199 Cal.App.3d at p. 1400, 245 Cal.Rptr. 606;  Levy v. Regents of University of California, supra, 199 Cal.App.3d at p. 1344, 245 Cal.Rptr. 576;  Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207.)   The plaintiff must produce some evidence, direct or circumstantial, that the proffered reason was pretextual.  (U.S. Postal Service Bd. of Govs. v. Aikens (1983) 460 U.S. 711, 713–714, 103 S.Ct. 1478, 1480–1481, 75 L.Ed.2d 403.)

 Although the plaintiff has the ultimate burden at trial, a defendant moving for summary judgment must conclusively negate a necessary element of the plaintiff's case and demonstrate that under no hypothesis is there a material issue of fact that requires a trial.  (Molko v. Holy Spirit Ass'n (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)   Summary judgment is appropriate, however, if in response to the defendant's evidence showing a nondiscriminatory reason, the plaintiff fails to produce any substantial evidence that defendant's explanation is untrue or a mere pretext for discrimination.  (University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1039, 272 Cal.Rptr. 264.)

II

RESPONDENT'S EVIDENCE

 The evidence in support of respondent's motion for summary judgment showed that in 1985 the building owner, JMB Property Management and Realty Company (JMB), awarded respondent Benco Building Services the contract to provide cleaning services at 10100 Santa Monica Boulevard.   Because appellant had experience in that building and the tenants then had confidence in her, respondent retained appellant as supervisor of the cleaning staff.   Appellant was 63 when first retained by respondent.

Beginning in late 1987 but especially in the summer and fall of 1988, tenants made frequent and repetitious complaints about the cleaning service.   The complaints alleged serious problems such as thefts, food missing from office refrigerators, damage to doors and walls from cleaning equipment, doors left unlocked, lights left on and offices left uncleaned.   The tenants complained to building management, and building management in turn complained to respondent.

In September 1988 appellant's supervisor, Dalena Highley, spoke to appellant about the complaints.   In October 1988 respondent's operations chief, Jack Laird, spoke with appellant, expressed dissatisfaction with the level of her supervision, told her that improvement was needed within 30 days and gave her a detailed set of guidelines as to her job responsibilities.

JMB's building management personnel continued to relate to respondent excessive tenant complaints;  JMB questioned respondent's ability to perform respondent's contract.   JMB informed respondent that a survey of the tenants in the building had rated the cleaning services unsatisfactory.

Respondent's president, William Hardin, was concerned respondent might lose the contract on this building and other JMB buildings.   This office building had over 500,000 square feet.   Hardin concluded that appellant was not inspecting the work frequently enough and was not adequately supervising the staff as they worked.   Respondent tried giving appellant two assistants, but appellant resisted by not delegating any authority to the assistants.   Hardin concluded the only solution was to remove appellant as supervisor at this building.

On February 6, 1989, Hardin informed appellant of the decision and offered to help her find a job in a smaller building she would be more capable of supervising.

Respondent's evidence, if not contradicted by substantial evidence from appellant raising a triable issue of fact, clearly established that appellant was removed from her position because respondent was dissatisfied with appellant's performance as supervisor of the janitorial crew.  (E.g., Pfeifer v. Lever Bros. Co. (D.Md.1987) 693 F.Supp. 358, 364 [as manager of a department, the plaintiff was ultimately responsible for the conduct of those he supervised and was properly discharged because not performing his job at a level which met employer's legitimate expectations].)   Respondent was unhappy with appellant because respondent's client, JMB, was strongly and repeatedly complaining about the cleaning crew.  (E.g., Menard v. First Sec. Services Corp. (1st Cir.1988) 848 F.2d 281, 285–286 [two major clients complained to employer about employee's handling of account].)

Respondent's showing negated appellant's case, either by defeating the element of appellant's prima facie case which required appellant to show she was performing satisfactorily before termination, or by rebutting it with a legitimate nondiscriminatory reason.  (Menard v. First Sec. Services Corp., supra, 848 F.2d at p. 285;  Kilgore v. Sears, Roebuck and Co. (N.Dist.Ill.1989) 722 F.Supp. 1535, 1537, 1538.)

In order to raise a triable issue of age discrimination appellant was required to produce some evidence that respondent's dissatisfaction with appellant's performance was not sincerely held but was a mere pretext for terminating appellant based on age.  (Kilgore v. Sears, Roebuck and Co., supra, 722 F.Supp. at p. 1539;  Kephart v. Institute of Gas Technology (7th Cir.1980) 630 F.2d 1217, 1223;  see Burton v. Security Pacific Nat. Bank (1988) 197 Cal.App.3d 972, 979, 243 Cal.Rptr. 277 [employer's good faith belief that employee committed misconduct entitles employer to summary judgment on employee's “covenant of good faith and fair dealing” cause of action, notwithstanding employee's conflicting evidence that he did not commit the misconduct].)

III

APPELLANT'S EVIDENCE

 With these relative burdens in mind we now examine the evidence offered by appellant in opposition to summary judgment.   We find none of appellant's evidence raises a triable issue of fact as to age discrimination or pretext.

Appellant offered three declarations constituting opinions of other persons that appellant was performing adequately.¹  These opinions of others about appellant's performance are not probative because the business judgment whether appellant's services were satisfactory lay exclusively in respondent's management.  (Kephart v. Institute of Gas Technology, supra, 630 F.2d at p. 1223.)   The question is not whether appellant can show some tenants were satisfied.   The uncontradicted evidence showed that respondent terminated appellant because respondent's client, the building management, repeatedly complained about the janitorial work, which was supervised by appellant.

Appellant contends Mr. Hardin admitted in deposition that some amount of tenant complaining is inevitable.   But respondent's showing was that the complaints at this building were excessive, a tenant survey rated the service unsatisfactory, and respondent's client was questioning respondent's ability to perform its contract.

Appellant contends no one at JMB actually threatened to terminate respondent's contract.   One of JMB's building managers, Michelle Smith, testified, however, she was “disgusted[,] tired of spending so much time on the janitorial issue.   I let Benco know that I was not happy.”   Respondent made a business decision to change the janitorial supervisor before a crisis was reached.

Appellant contends respondent conceded appellant was qualified, by virtue of Mr. Hardin's offer to place appellant at another building.   This offer, however, involved only a smaller building with less responsibility.

 Appellant contends there were problems with appellant's successor.   This refers to one complaint made by building management that appellant's successor had been late a couple of times.   That was an isolated incident compared to the frequent complaints when appellant was in charge.   Subsequent problems with the replacement are not probative whether appellant was terminated because of her age.  (Simmons v. McGuffey Nursing Home, Inc. (5th Cir.1980) 619 F.2d 369, 371.)

 Appellant testified she had never received unsatisfactory evaluations before the fall of 1988.   This is not probative, since whether the employee is meeting the employer's expectations is measured at the time the employee is discharged.  (Kilgore v. Sears, Roebuck and Co., supra, 722 F.Supp. at p. 1538.)   The complaints reached high levels by the fall of 1988.

Appellant acknowledged that many of the complaints were made but described what she had done in attempting to deal with them or offered excuses why it was not her responsibility.   This does not contradict the fact that respondent's management received numerous complaints and were dissatisfied with appellant's performance.   In similar circumstances the court in Kephart v. Institute of Gas Technology, supra, 630 F.2d at p. 1224 said, “In short, even were there a dispute in this case about whether Kephart's work was good;  there is no dispute about the fact that some of Kephart's superiors did not think his work was good.   As to whether his employer's dissatisfaction was a pretext for discrimination, plaintiff has introduced no documents to justify a finding that any age discrimination existed in his case.”

 The closest appellant comes to any evidence that age was a factor in respondent's decision was appellant's testimony that during the termination interview Mr. Hardin told appellant that “he [and two JMB officials who are no longer parties to this action] had decided that I was too old and they were retiring me.”   She also cites Hardin's testimony that “[t]he position of building foreman is a physical position requiring varying degrees of exercise, and there are none that I'm aware of that are over 60” and Hardin's opinion that “[appellant] was not able to walk the two to three miles a night necessary to supervise the building.”

This evidence is not “direct evidence” of age discrimination, which would dispense with the necessity for analyzing prima facie case, rebuttal and pretext.  (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, 804, 93 S.Ct. 1817, 1824, 1825, 36 L.Ed.2d 668.)   An example of such direct evidence is Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523.   There the employer had an express policy based directly on age, by which a captain under 60 could “bump” a flight engineer, but a captain over 60 could not.   No inferences were required to show that the TWA policy was based on age.

The remarks attributed by appellant to Mr. Hardin are not direct evidence of age discrimination, because they require inference to lead to the conclusion of age discrimination.  (Evid.Code, § 410;  People v. Gould (1959) 170 Cal.App.2d 489, 492, 338 P.2d 938.)

In Young v. General Foods Corp. (11th Cir.1988) 840 F.2d 825, 829, the court held the employer's comments that the employee “moved in slow motion,” was “not aggressive,” and was the same age as his boss's father, did not constitute “direct evidence” of age discrimination.   The court affirmed a summary judgment for the employer, stating, “ ‘ “Congress made plain that the age statute was not meant to prohibit employment decisions based on factors that sometimes accompany advancing age, such as declining health or diminished vigor and competence.” ’ ”  (Ibid., italics omitted.)

 The statements cited by appellant were not substantial enough to create a triable issue of fact of age discrimination.   The mere mention of age is not necessarily probative that discrimination on the basis of age motivated the employer.   In the context in which the statements were made here, it is evident Hardin was dissatisfied with appellant's performance and merely speculated that her age may have been a contributing factor in causing the unsatisfactory performance.  (See Medina–Munoz v. R.J. Reynolds Tobacco Co. (1st Cir.1990) 896 F.2d 5, 9–10 [comment about sales staff getting too old was in context of productivity study, summary judgment affirmed];  Simmons v. McGuffey Nursing Home, Inc., supra, 619 F.2d at p. 371 [comment that “ ‘we want a younger man this time’ ” did not contradict lawful nondiscriminatory reasons established by record, summary judgment affirmed];  Merrick v. Farmers Ins. Group (9th Cir.1990) 892 F.2d 1434, 1438–1439 [employer's comment that plaintiff's replacement was “a bright, intelligent, knowledgeable young man” insufficient to prevent summary judgment];  Barnes v. Southwest Forest Industries, Inc. (11th Cir.1987) 814 F.2d 607, 610, 611 [manager's comment that “ ‘you would have to take another physical examination and at your age, I don't believe you could pass it,’ ” insufficient to prevent summary judgment].)

 We conclude appellant raised no triable issue of fact of age discrimination or pretext.²

IV

PROCEDURAL ISSUES †

V

DISPOSITION

The judgment is affirmed.

I respectfully dissent.

I. INTRODUCTION

There was direct evidence the president of defendant told plaintiff she was being retired, i.e., fired, because she was “too old.”   This direct evidence of age discrimination when coupled with other evidence of disparate treatment of her created a triable issue under California summary judgment law which warranted this case being presented to a jury of the parties' peers, or if the parties agree to a judge, for decision after hearing live testimony where the witnesses' believability may be impartially assessed.¹

II. THE TWO RELEVANT METHODS OF PROVING UNLAWFUL DISCRIMINATION

Plaintiff's complaint sought compensation for discrimination in violation of the Fair Employment and Housing Act (FEHA) which provides in pertinent part:  “It is an unlawful employment practice for an employer to refuse to ․ employ, or to discharge ․ any individual over the age of 40 on the ground of age․  This section shall not be construed to make unlawful the ․ termination of employment where the individual ․ employee failed to meet bona fide requirements for the job or position ․ held.”  (Gov.Code § 12941, subd. (a).)  In interpreting the FEHA, California courts have applied federal decisional authority because section 12940 et seq. “is analogous to a federal title VII claim (42 U.S.C. § 2000e)․”  (University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1035, 272 Cal.Rptr. 264.)   In a discrimination action, the “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.  [Citations.]”  (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207.)   Although summary judgment may be imposed in cases under title VII, the issue of discriminatory intent is “essentially factual.”   (Pullman–Standard v. Swint (1982) 456 U.S. 273, 288, 102 S.Ct. 1781, 1790, 72 L.Ed.2d 66.)   In determining whether there has been a violation of the FEHA, California courts have applied federal court construction of the Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 621 et seq.).  (Levy v. Regents of University of California (1988) 199 Cal.App.3d 1334, 1343, 245 Cal.Rptr. 576.)   In order for a plaintiff to defeat a summary judgment motion under the ADEA the following must be present:  “An aggrieved party ․ can survive a motion for summary judgment simply by producing circumstantial evidence from which a trier of fact can reasonably infer that age was a determining factor in the employment decision.  [Citations.]  Once the plaintiff presents the court with some evidence that his employer harbored the prohibited motive, summary judgment ․ is inappropriate because there is a disputed fact material to the case.”  (Parker v. Federal Nat. Mortg. Ass'n. (7th Cir.1984) 741 F.2d 975, 980.)   In Shager v. Upjohn Co. (7th Cir.1990) 913 F.2d 398, 401, an age discrimination appeal after an improper summary judgment grant, the court held, “The point is only that if the inference of improper motive can be drawn, there must be a trial.”  (Original italics.)

In cases of this type, federal courts have recognized two kinds of evidence which can be used to prove the plaintiff was “the victim of intentional discrimination.”  (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 256, 101 S.Ct. at p. 1095.)   First, intentional discrimination can be proven by direct evidence.   In a direct evidence case, once the plaintiff demonstrates that unlawful discrimination “played a motivating part in the employment decision” (Cassista v. Community Foods, Inc. (1992) 7 Cal.App.4th 1409, 1423, 10 Cal.Rptr.2d 98, citing Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 250, 109 S.Ct. 1775, 1790, 104 L.Ed.2d 268), the burden thereby shifts to the employer to prove “that it would have made the same decision even if it had not taken the illegitimate factor into account.”  (Grant v. Hazelett Strip–Casting Corp. (2nd Cir.1989) 880 F.2d 1564, 1568;  Young v. General Foods Corp. (11th Cir.1988) 840 F.2d 825, 828;  Bell v. Birmingham Linen Service (11th Cir.1983) 715 F.2d 1552, 1557.)

Second, if there is only indirect evidence of age discrimination, the burden shifting methodology developed in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–804, 93 S.Ct. 1817, 1824–1825, 36 L.Ed.2d 668, is applied.   (Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1399–1400, 245 Cal.Rptr. 606.)   That test was described by the United States Supreme Court in Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at pp. 252–253, 101 S.Ct. at p. 1093 as follows:  “In McDonnell Douglas ․, we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment.   First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination.   Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee's rejection.’  [Citation.]  Third, should the defendant carry this burden, the plaintiff must then have the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.  [Citation.]”  (Fn. omitted.)   When there is direct evidence of discrimination, the McDonnell Douglas burden shifting process is not used.  (Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523.)   Even in the case of indirect evidence of discrimination, the McDonnell Douglas formulation must be flexibly applied so as to assist the trier of fact in determining whether the plaintiff has sustained the ultimate burden of proving intentional discrimination.  (Furnco Construction Corp. v. Waters (1978) 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957;  Teamsters v. United States (1977) 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396;  Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 256, 101 S.Ct. at p. 1095;  Bell v. Birmingham Linen Service, supra, 715 F.2d at p. 1556.)   Regardless of whether the evidence in the present case is characterized as direct or indirect, summary judgment should not have been entered.

Before proceeding to analyze the disputed factual scenario in the present case, it bears emphasis that a violation of the FEHA may occur even when the sole reason for the termination was not the impermissible use of age.  (Price Waterhouse v. Hopkins, supra, 490 U.S. at pp. 244–247, 109 S.Ct. at pp. 1787–1789 (plur. opn. of Brennan, J.)   In such “mixed motives” cases, there is still a potential basis for liability for unlawful age discrimination.  (Neufeld v. Searle Laboratories (8th Cir.1989) 884 F.2d 335, 339;  Perrell v. Financeamerica Corp. (10th Cir.1984) 726 F.2d 654, 656;  Cancellier v. Federated Dept. Stores (9th Cir.1982) 672 F.2d 1312, 1316.)   In Price Waterhouse, the plurality described the relevant test as follows in a gender discrimination case as follows:  “In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman.”  (Price Waterhouse v. Hopkins, supra, 490 U.S. at p. 250, 109 S.Ct. at p. 1790, fn. omitted, (plur. opn. of Brennan, J.)

III. DIRECT EVIDENCE ANALYSIS

Defendant argues that there was no direct evidence of age discrimination.   However, at her deposition, plaintiff testified she was notified of her termination as follows:  “Q.   What did he say to you in the course of the conversation?  [¶] A.   I don't know how he started it off, but I do know that he said that he had discussed with Dennis Kielgass and Joe Enesco² about my age, and he said that they had decided that I was too old.” ³  Pressed by defense counsel to be more specific, on the next page of the transcript of her deposition, the following appears:  “Q.   Did he specifically use the word ‘age’ in the conversation?  [¶] A.   He used the word that they had discussed it and that the three of them had decided that I was too old.  [¶] Q.   So he did not use the word ‘age’ in the conversation?  [¶] A.   He said that I was too old.”  (Italics added.)   Defense counsel, at her deposition, continued to inquire of her concerning the use of the language which would be indicative of age discrimination.   On the following page of her deposition transcript, the following is reflected:  “Q.   The words ‘too old,’ did Mr. Hardin use those words in your conversation?  [¶] A.   Yes.  [¶] Q.   How many times?  [¶] A.   Twice.  [¶] Q.   When he used it the first time, what did he say?  [¶] A.   He said he had discussed it with Dennis Kielgass and Joe Enesco, and they had decided that I was too old.  [¶] Q.   And the second time he used the words ‘too old,’ what did he say?  [¶] A.   He said he discussed it Dennis Kielgass and Joe Enesco, and they had decided that I was too old.  [¶]  Q.   So there were two different times, two different sentences, in which he used the words ‘too old’;  correct?  [¶] A.   Correct.” ⁴

This constituted direct evidence of the type which has repeatedly been held in the federal courts to obviate the necessity of utilizing the McDonnell Douglas test.   In Beshears v. Asbill (8th Cir.1991) 930 F.2d 1348, at 1354, the Court of Appeals concluded the following constituted direct evidence of age discrimination:  “We refer to a remark made by [defendant's] president ․, who actively participated in the personnel decisions at issue.   At least five people testified that they heard [the president] make a statement to the effect that older employees have problems adapting to changes and to new policies.  [¶] Gary Cox, another ․ official involved in these employment decisions, also made several age-related comments.   Cox informed [plaintiff's] brother, that his position as chief technician had been offered to a younger man and explained that younger people were more adaptable to [defendant's] policies than older people․  Further, Cox told ․ a warehouse employee, that he would not be happy as an installer because of his age and job experience.”  (Fn. omitted.)   In Earley v. Champion Intern. Corp. (11th Cir.1990) 907 F.2d 1077, 1081, the Court of Appeals gave the following as an example of direct evidence of age discrimination, “One example of direct evidence would be a management memorandum saying, ‘Fire Earley—he is too old.’ ”   In Grant v. Hazelett Strip–Casting Corp., supra, 880 F.2d at p. 1569, the court held:  “[Plaintiff] presented direct evidence that age played a part in [defendant's] actions.   Not only did the March 23 memo state that Hazelett was looking for a ‘young man ․ between 30 and 40 years old,’ but several witnesses testified that similar statements were made by Hazelett and others.   At one point Hazelett told Grant, ‘I want a young man and that's what I want and that's what I'm going to have.’   Furthermore, the company's asserted justifications for preferring a younger controller abound with age stereotypes, such as the belief that older workers are less productive or ‘wouldn't want Bill telling them what to do[.’ ”]

In Perry v. Kunz (8th Cir.1989) 878 F.2d 1056, 1060, the Court of Appeals reversed a summary judgment and concluded the following deposition testimony was direct evidence of age discrimination:  “Q.   Did you hear in the last year or so that [plaintiff] worked there, did you hear Miss Johnson or Miss McPike make any comments about [plaintiff's] age?  [¶] A.   Well, they decide they think she was getting up in age in a way, she should go on and retire.  [¶] ․ Q.   You heard Miss Johnson say that to Mrs. McPike?  [¶] A.   Yes.   She should go on and retire.”   Other deposition testimony included:  “Q.   How do you know she decided [plaintiff] should go?  [¶] A.   They figured that she was up in age and they had asked her to retire, resign, Miss McPike had, and so she wasn't going to do it and they decided she was going to get rid of her.”  (Ibid.)  In Carter v. City of Miami (11th Cir.1989) 870 F.2d 578, 582, fn. 10, the Court of Appeals determined the words written on a scrap of paper, “ ‘Too old—Lay Off’ constituted direct evidence ․”  In Castle v. Sangamo Weston, Inc. (11th Cir.1988) 837 F.2d 1550, 1558, fn. 13, the court held, “An example of direct evidence would be a scrap of paper saying, ‘Fire Rollins—she is too old.’ ”   In Lindsey v. American Cast Iron Pipe Co. (11th Cir.1985) 772 F.2d 799, 801, the direct evidence was as follows:  “[Plaintiff] then asked Foshee about his chances of getting the assistant manager's job when the position came open.   Foshee responded that when the position opened up, the company would be looking for a person younger than [plaintiff] to fill it.”   In Haskell v. Kaman Corp. (2nd Cir.1984) 743 F.2d 113, 119, the court held:  “The plaintiff in an ADEA case has the burden of showing he was discharged because of age.  [Citation.]  [¶] A plaintiff may sustain his burden through introduction of direct evidence, such as statements by the employer that age was the reason for the discharge․”  In Hagelthorn v. Kennecott Corp. (2nd Cir.1983) 710 F.2d 76, 81, the court held:  “Hagelthorn presented direct evidence of discrimination.   He testified that after twenty years in a position not likely to be totally eliminated, he was told he would be fired because of his age.”   In Cline v. Roadway Exp., Inc. (4th Cir.1982) 689 F.2d 481, 485, the court held that proof of age discrimination “may consist of direct evidence that the employer announced, or admitted, or otherwise unmistakably indicated that age was a determining factor․”  In Miller v. State Chemical Mfg. Co. (W.D.Pa.1988) 706 F.Supp. 1166, 1170–1172, the district court denied the summary judgment motion.   The plaintiff filed an affidavit describing his termination as follows:  “ ‘Al Malz discharged me on July 27, 1984.   He took my materials and said ‘I could not do the work;  I was too old for the job.’ ”  (Id. at p. 1170.)   The employer contended plaintiff was fired because he was disabled.   However, given the evidence in plaintiff's affidavit, the court denied the summary judgment motion and held:  “Defendant ․ contends that it discharged plaintiff because he was totally disabled.   While that may be true, the statement made to plaintiff at the time of discharge suggests that defendant's decision to terminate [plaintiff] may also have been motivated by age discrimination.   Whether age was a determinative factor in defendant's discharge decision remains a question for the trier of fact.”  (Id. at p. 1171.)   If the facts in the foregoing decisional authority constitute direct evidence, then plaintiff's deposition testimony is such and the McDonnell Douglas test was irrelevant to the present case.

Under the foregoing federal decisional authority, the burden then shifts to defendant to prove “that it would have made the same decision even if it had not taken the illegitimate factor into account.”  (Grant v. Hazelett Strip–Casting Corp., supra, 880 F.2d at p. 1568.)   Defendant attempts to do this in the present case by setting forth in considerable detail its reasons for concluding plaintiff no longer could properly supervise the cleaning personnel at the building at 10100 Santa Monica Boulevard.⁵  The majority opinion accurately and intelligently sets forth the evidence presented by defendant in this regard.   However, the moving party's evidence which supports the inference it would have terminated plaintiff regardless of the impermissible consideration of plaintiff's age is contradicted in material respects.   First, defendant's president, the person who made the termination decision twice told plaintiff she was fired, not because she could no longer perform competently;  rather, plaintiff's deposition testimony indicated it was only because she was “too old.”   A fair inference to draw from plaintiff's version of the conversation was that age was the sole grounds for the firing and tenant complaints had nothing to do with the termination decision.⁶  Under the facts of this case, summary judgment was inappropriate given plaintiff's deposition testimony.  (Perry v. Kunz, supra, 878 F.2d at pp. 1060–1061;  Miller v. State Chemical Mfg. Co., supra, 706 F.Supp. at pp. 1170–1171.)

Second, plaintiff presented substantial evidence she performed her job competently.   The stated reason on defendant's separation document was:  “Repeated customer and tenant complaints indicate [plaintiff] is unable to supervise a 500,000 [square foot] area.   Offered her a smaller building at rate of pay budgeted for that building.”   According to defendant's president, the termination decision was premised upon her failure to perform her responsibilities in the building.   However, plaintiff made a substantial evidentiary showing that many tenants were very pleased with her work, it was not unusual for tenants to complain about cleaning service, her work had never been questioned prior to October 1988, she had intelligently responded to tenant complaints, and opinion testimony from knowledgeable maintenance supervisors in large office building attested to her skillful and diligent work ethic.

Synthesized, the declarations submitted in opposition to the summary judgment motion indicated the following.   In her declaration, she stated that prior to October 1988 she was never advised her work was inadequate;  in 1986, she had received a safety award from her employer;  in July 1987, she had received a pay raise;  Douglas Hardin, defendant's president regularly stated “the building looked good”;  she had received “random complaints” from tenants which, based upon her 29 years experience as a maintenance supervisor was a “normal occurrence” ⁷ ;  no employee of defendant had indicated these complaints reflected on her performance prior to 1988;  in October 1988, when she was advised that the stairwells were not adequately cleaned, she indicated she was unaware this was the “night crew's responsibility”;  after the October 1988 meeting, she used her own money to hire people to complete the additional tasks assigned to her by her supervisors;  and after the October 1988 meeting, defendant's vice-president said “that the cleaning in the building had improved.”   She stated that everytime she received a tenant complaint, she “took immediate steps to address that complaint.”   Her declaration contains responses to the allegations of misfeasance appearing in defendant's moving papers.   She checked every suite once a week, “walked every floor of the building every night”, and, at the request of defendant or the building management, would inspect specific suites every night.   Finally, all of her requests for more staff and newer equipment were denied.

Other declarations indicated that plaintiff would work past her normal quitting time often doing work not normally done by a supervisor.   Further, an experienced maintenance supervisor employed by another company, who was familiar with plaintiff's work at the building a 10100 Santa Monica Boulevard, expressed the opinion that “the level of cleaning in the suites performed by Ms. Cummings' crew was good.”   An office manager in the building where plaintiff was a supervisor stated she addressed problems in “an efficient, friendly, competent manner” and he “was satisfied with the cleaning service provided ․ under the supervision of” plaintiff.   Another supervisor employed by a different maintenance company indicated that when he worked for defendant under plaintiff's supervision, he observed her “warn crew members about performance or conduct issues” and hold “meetings about subjects such as eating tenants' food or [using their] phones.”   The maintenance supervisor indicated that when he worked for defendant she “walked the floors and checked the doors on all the floors” and “was routinely still at the building after the completion of the shift.”

Finally, there was evidence that plaintiff's successor, who was younger, did not improve the level of cleaning service and he was not fired.   There was evidence of a theft and misuse of a tenant microwave after plaintiff was fired and her replacement had to be warned about his failure to come to work.   One tenant was satisfied with the level of cleaning service when plaintiff worked in the building but “was less satisfied with the level of cleaning under [plaintiff's] replacement.”   The fact that problems continued to occur after her firing, is circumstantial evidence that her performance had nothing to do with the termination decision.   Taken together, the fact plaintiff was informed she was being fired because she was too old, her job performance was exemplary, and the problems with janitors continued after she was replaced, there is a triable question as to whether defendant would have terminated her even if her age had not been taken into account.   Therefore, utilizing the federally approved method of determining whether there was unlawful age discrimination in a case where there is direct evidence of such, the summary judgment motion should have been denied.

IV. INDIRECT EVIDENCE ANALYSIS

Even if the McDonnell Douglas formulation were applied to the facts of this case, summary judgment would be unwarranted.   First, plaintiff presented sufficient evidence of a prima facie case of age discrimination.  (McDonnell Douglas Corp. v. Green, supra, 411 U.S. at p. 802, 93 S.Ct. at p. 1824.)   The prima facie case may be proven by direct proof of discriminatory intent.   Several cases have held that the first prong of the McDonnell Douglas test may be proven by an employer's statements that age was a material factor in the employment decision.   In McNeil v. Economics Laboratory, Inc. (7th Cir.1986) 800 F.2d 111, 115, the court found a prima facie case was established when a supervisor who was directly involved in the termination decision wrote a memorandum in which he expressed an intent “ ‘to get rid of the inherited sales force of “old salesmen” and replace them with “bright young people[.” ’ ”]  In Stanojev v. Ebasco Services, Inc. (2nd Cir.1981) 643 F.2d 914, 921, the court described direct proof as when “the employer had told the employee that he was being fired because of his age.”   Such evidence in the view of the Court of Appeals would support a prima facie showing when “coupled with a firing (or refusal to hire) of a person in the protected age group․”  (Ibid.)   Finally, in Loeb v. Textron, Inc. (1st Cir.1979) 600 F.2d 1003, 1014, fn. 12, the court held:  “This is not to say that a McDonnell Douglas prima facie case is the only possible prima facie case appropriate in a discrimination case.   A complainant of requisite age who offered evidence that, when fired, his employer said, ‘I am firing you solely because I want someone younger,’ might not need anything more to make out a prima facie showing of discrimination.”   In the present case, plaintiff's deposition testimony that she had been fired because she was “too old” constituted, under the foregoing federal decisional authority, sufficient evidence to establish the first prong of the McDonnell Douglas test.

Since plaintiff presented a prima facie showing of age discrimination, the burden shifted to defendant “to prove that there was ‘ “some legitimate, nondiscriminatory reason ․” ’ ” for the termination.  (University of Southern California v. Superior Court, supra, 222 Cal.App.3d at p. 1036, 272 Cal.Rptr. 264.)   As noted in the majority opinion, defendant sustained that burden.   Therefore, the responsibility shifted back to plaintiff under the McDonnell Douglas process to demonstrate that the reasons advanced by her employer were a pretext for age discrimination.   The third phase of the McDonnell Douglas formulation was described by the United States Supreme Court in a gender discrimination case as follows:  “She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision.   This burden now merges with the ultimate burden of persuading the court she has been the victim of intentional discrimination.   She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.”   (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 256, 101 S.Ct. at p. 1095.)

In the present case, there is a triable controversy as to whether the reasons offered for the termination were a pretext.   The Seventh Circuit has held, “A plaintiff may show that the proffered reasons are not worthy of credence by showing that (1) they have no basis in fact, or (2) they did not actually motivate the employer's decision, or (3) they were insufficient to motivate the discharge.”  (Jones v. Jones Bros. Const. Corp. (7th Cir.1989) 879 F.2d 295, 299.)   In the present case, plaintiff has argued that there is a triable issue as to whether the asserted reason for the termination had no basis in fact and did not actually motivate the termination decision.⁸  To begin with, there is the direct proof that the employer more likely was motivated by age considerations.   In evaluating the existence of a pretext, a court may rely on the kind evidence presented by the plaintiff as showing a prima facie case of discrimination.  (Cooper v. Asplundh Tree Expert Co. (10th Cir.1988) 836 F.2d 1544, 1547–1548.)   Defendant's president, the person charged with the duty to determine whether to retain plaintiff, is reputed to have told her when the firing was announced that she was being “retired” because she was “too old.”   This, by itself, was sufficient under the California summary judgment law to create a triable issue as to whether “a discriminatory reason more likely motivated the employer․”  (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 256, 101 S.Ct. at p. 1095.)   In Cooper v. Asplundh Tree Expert Co., supra, 836 F.2d at p. 1548, the employer presented “evidence that reasonable factors other than age—[plaintiff's] violation of work rules and poor attitude toward management—motivated its decision [to terminate, plaintiff] presented sufficient evidence to satisfy his ultimate burden of proof.”   However, the Court of Appeals concluded that other evidence of ageist statements were sufficient evidence of pretext to overcome the testimony concerning a neutral nondiscriminatory reason for the discharge.   That evidence consisted of statements by management about persons over the age of 40 being “ ‘too old to work here’ ” and they “ ‘should be fired or gotten rid of.’ ”  (Id. at p. 1548.)   Other managers talked about the problems of using older employees.   This was sufficient to create substantial evidence of a pretext to survive a motion for judgment notwithstanding the verdict.   Cooper is the relevant authority in the present case since there is evidence plaintiff was told she was fired because she was “too old.”

However, there are additional considerations which are present and when considered cumulatively are evidence of a triable issue.   In passing on a summary judgment motion, the evidence of pretext must be viewed in its “totality” so that the plaintiff may benefit from “all of the reasonable inferences” that may be drawn from the evidence.  (Graefenhain v. Pabst Brewing Co. (7th Cir.1987) 827 F.2d 13, 19, see Roebuck v. Drexel University (3rd Cir.1988) 852 F.2d 715, 733.)   In addition to the direct evidence of use of her age as a basis for her termination, as noted previously, there was substantial evidence that she in fact did properly supervise the janitors in the office building.   That extensive evidentiary showing need not be repeated here.   Suffice to note it indicated:  building tenants were pleased with her work;  she closely supervised subordinates;  her work had never been criticized until the October prior to the February termination;  defendant's president admitted at his deposition that complaints of the nature utilized to justify plaintiff's termination were typical because of the subjective nature of the service provided, a point of view she echoed;  and properly qualified maintenance supervisors credited her work skills.

Defendant argues that plaintiff may not present evidence to contradict its business judgment.   However, the United States Supreme Court has repeatedly emphasized in title VII actions that employee must “be afforded a fair opportunity to show that the [employer's] stated reason ․ was in fact [a] pretext” (McDonnell Douglas Corp. v. Green, supra, 411 U.S. at p. 804, 93 S.Ct. at p. 1825) and “have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision.”  (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 256, 101 S.Ct. at p. 1095.)  (See Board of Trustees v. Sweeney (1978) 439 U.S. 24, 24–25, 99 S.Ct. 295, 295–296, 58 L.Ed.2d 216;  Furnco Construction Corp. v. Waters, supra, 438 U.S. at p. 578, 98 S.Ct. at p. 2950;  McDonald v. Santa Fe Trail Transp. Co. (1976) 427 U.S. 273, 282, 96 S.Ct. 2574, 2579, 49 L.Ed.2d 493.)   Further, every circuit has, in title VII actions under varying circumstances, permitted plaintiffs to present evidence to contradict testimony or affidavits relating employee unsuitability or some other neutral nondiscriminatory reason for a termination or other employment decision.  (Olivera v. Nestle Puerto Rico, Inc. (1st Cir.1990) 922 F.2d 43, 47–50 [employer not entitled to summary judgment in an ADEA action where evidence of plaintiff's misconduct on the job contradicted by his work record];  Montana v. First Federal S. & L. of Rochester (2nd Cir.1989) 869 F.2d 100, 105–106 [reduction in force justification as a neutral business decision contradicted by evidence of plaintiff's age, post-termination retention of her duties, transfer of those responsibilities to a younger employee, failure to offer her other positions for which she was qualified, and rather than reducing the workforce, it was increased];  Chipollini v. Spencer Gifts, Inc. (3rd Cir.1987) 814 F.2d 893, 900–901 [summary judgment improper in ADEA action when defense evidence of “poor performance” contradicted by affidavits indicating plaintiff's exemplary conduct on the job.];  Tuck v. Henkel Corporation (4th Cir.1992) 973 F.2d 371 [defense affidavits in support of summary judgment motion as to plaintiff's unsuitability for a reconstituted position after a reduction in force contradicted by evidence of ageist statements by management and his successor was less qualified for the new position];  Bienkowski v. American Airlines, Inc. (5th Cir.1988) 851 F.2d 1503, 1507 [conflicting affidavits as to quality of plaintiff's work performance warranted denial of summary judgment motion];  Fite v. First Tennessee Production Credit Ass'n. (6th Cir.1988) 861 F.2d 884, 889 [plaintiff's satisfactory work record was sufficient to warrant denial of motion for judgment notwithstanding the verdict when in conflict with employer's evidence that he was a marginal employee who legitimately could be discharged during period of corporate financial distress];  Graefenhain v. Pabst Brewing Co., supra, 827 F.2d at pp. 18–20 [judgment notwithstanding the verdict should not have been entered when employer's evidence of poor job performance and economic cutbacks contradicted by plaintiffs' work record];  MacDissi v. Valmont Industries, Inc. (8th Cir.1988) 856 F.2d 1054, 1059 [ADEA requires courts to examine employer rationales based on business necessity when presented with evidence of discriminatory conduct];  Samarzia v. Clark County (9th Cir.1988) 859 F.2d 88, 91–92 [directed verdict improperly issued on ADEA claim when plaintiff presented pretext evidence demonstrating he was not less productive than other employees];  Perrell v. Financeamerica Corp., supra, 726 F.2d at p. 656 [despite extensive evidence that employment decision was premised on nondiscriminatory factors, plaintiff entitled to retrial where the jurors' were instructed that if his age made a difference in his termination, there was liability under the ADEA];  Sparks v. Pilot Freight Carriers, Inc. (11th Cir.1987) 830 F.2d 1554, 1563 [conflicting evidence as to whether plaintiff violated work rule which was the alleged nondiscriminatory reason for the termination required that summary judgment be denied];  Krodel v. Young (D.C.Cir.1984) 748 F.2d 701, 708–709 [district court could reasonably weigh agency's justification for promoting a younger employee over a plaintiff against evidence of older person's job performance deficiencies and determine there had been an ADEA violation].)   Further, the one California case interpreting the FEHA in the context of an age discrimination claim where a prima facie showing had been made permitted the discharged employee to present evidence of the type relied upon by plaintiff in the present case.  (Stephens v. Coldwell Banker Commercial Group, Inc., supra, 199 Cal.App.3d at pp. 1400–1401, 245 Cal.Rptr. 606.)

Defendant correctly argues that the ADEA may not be used to second-guess business decisions.   Defendant cites a number of decisions which have precluded rationally based good faith business decisions from being the basis for age discrimination claims in the federal courts.  (See Lucas v. Dover Corp., Norris Div. (10th Cir.1988) 857 F.2d 1397, 1403–1404;  Branson v. Price River Coal Co. (10th Cir.1988) 853 F.2d 768, 772;  Jorgensen v. Modern Woodmen of America (8th Cir.1985) 761 F.2d 502, 505;  Kephart v. Institute of Gas Technology (7th Cir.1980) 630 F.2d 1217, 1223.)   Quite obviously, there is a place on the pedagogical continuum where there is a difference between second guessing businesspersons' legitimate economic and personnel decisions and concluding that a triable controversy exists as to whether the discharged employee was competent because there is evidence the plaintiff in fact was able, industrious, hard working, and honest as was her showing in the present case.   The federal cases have not drawn any helpful bright lines in this regard although, as previously noted, every circuit has allowed plaintiffs to present evidence to challenge the truthfulness of the business decision in title VII cases as did the Court of Appeal in Stephens v. Coldwell Banker Commercial Group, Inc., supra, 199 Cal.App.3d at pp. 1400–1401, 245 Cal.Rptr. 606 in an FEHA age discrimination case.   In the present case, it is unnecessary to state a precise rule applicable in every case, if that can be done.   Rather, the Tenth Circuit, in stating that courts will not “second guess” employer business decisions set forth an appropriate exception to that rule as follows, “This court will not second guess business decisions made by employers, in the absence of some evidence of impermissible motives.”   (Lucas v. Dover Corp., Norris Div., supra, 857 F.2d at pp. 1403–1404.)   In the present case, there was evidence of impermissible motive—plaintiff was twice told the adverse employment decision was made because she was “too old.”   Common sense supports the conclusion that when a plaintiff makes a comprehensive showing that she or he is a competent employee, such as occurred in the present case, such testimony may be considered on the pretext issue when it is coupled with “some evidence of impermissible motives.”  (Ibid.)  Accordingly, apart from the fact that every circuit has allowed a plaintiff to challenge the evidentiary basis of the purported neutral basis for the employment action, the combination of the impermissible stated reason for the termination and the conflicting evidence as to her competence created a triable issue as to the motive for decision to “retire” her.

However, there is even more evidence from which it can be inferred the termination decision was premised upon plaintiff's age.   Plaintiff's successor who was younger was retained even in the face of evidence that the quality of his job performance was less than hers.   A plaintiff may satisfy the third prong of the McDonnell Douglas analysis by proving that younger employees were treated more leniently.  (Holzman v. Jaymar–Ruby, Inc. (7th Cir.1990) 916 F.2d 1298, 1302–1303 [selecting oldest employee to terminate when younger workers also violated a company rule in order to make an example because he was eligible for retirement benefits and would be the least hurt violative of the ADEA];  Shager v. Upjohn Co., supra, 913 F.2d at p. 403 [ADEA protects the older imperfect worker from being treated worse than the younger imperfect worker];  Blake v. J.C. Penney Co., Inc. (8th Cir.1990) 894 F.2d 274, 280 [company tolerance of infractions by younger employees but not by older plaintiff evidence of pretext];  Neufeld v. Searle Laboratories, supra, 884 F.2d at p. 339 [pretext established when jury determines that plaintiff with record of unsatisfactory job performance nonetheless would have kept his job had he been younger];  Cooper v. Asplundh Tree Expert Co., supra, 836 F.2d at pp. 1547–1548 [younger employees not required to obey safety rules while older plaintiff required to obey company policy concerning hard hats].)   Furthermore, after plaintiff was terminated, the additional staff and equipment she had requested were provided to her successor.   To sum up, the stated reason for her firing, when coupled with evidence of her competence and the more lenient treatment of her successor acted to create a triable issue as to the existence of a pretext under the McDonnell Douglas test and whether her rights under the FEHA were violated by her termination because “she has been the victim of intentional discrimination.”  (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 256, 101 S.Ct. at p. 1095.)

V. DEFENDANT'S KEY CASES

Defendant relies on four cases to support its contention that summary judgment was properly entered.  (Medina–Munoz v. R.J. Reynolds Tobacco Co. (1st Cir.1990) 896 F.2d 5, 9–10;  Merrick v. Farmers Ins. Group (9th Cir.1990) 892 F.2d 1434, 1438–1439;  Barnes v. Southwest Forest Industries, Inc. (11th Cir.1987) 814 F.2d 607, 610–611;  Simmons v. McGuffey Nursing Home, Inc. (5th Cir.1980) 619 F.2d 369, 371.)   The majority opinion succinctly sets forth the relevant factual aspects of those cases.   Without going into great depth in analyzing why defendant's reliance is misplaced, several broad observations are pertinent.   To begin with, none of these four cases involve a direct statement by the person who made the employment decision at the time of the termination that the employee was being fired because of age.   Each of these four cases involve so-called “ ‘stray’ remarks” which were “ ‘unrelated to the decisional process' ” (Merrick v. Farmers Ins. Group, supra, 892 F.2d at pp. 1438–1439.) ⁹  By contrast, in the present case, there was under oath deposition testimony plaintiff was told she was being retired because she was “too old.”   Further, none of these four cases involved a legitimate factual dispute as to whether the plaintiffs were in fact performing their jobs in a competent manner.   Additionally, none of these cases involves evidence of more favorable treatment of a younger successor.

VI. CONCLUSION

Because there is a triable issue as to whether plaintiff was terminated because of her age or the firing was prompted by the dual motives of improper age considerations mixed with legitimate business concerns (see Price Waterhouse v. Hopkins, supra, 490 U.S. at p. 250, 109 S.Ct. at p. 1790 (plur. opn. of Brennan, J.), the summary judgment motion should have been denied.   The bottom line is this—at “the moment of decision” in the lexicon of Price Waterhouse when plaintiff was fired, there is a triable issue as to whether one of the reasons was that she was 68 years old.

FOOTNOTES

1.   These were from a single tenant who was satisfied with the cleaning service in the building, a friend who was also a maintenance supervisor who had observed appellant and opined appellant had performed well as a supervisor, and a member of appellant's crew who opined appellant was a firm but fair supervisor.

2.   Appellant attacks an alternative ground in respondent's motion for summary judgment, which was that appellant violated respondent's policies and work rules by doing extra cleaning jobs for tenants, for which appellant received substantial pay on the side.   Respondent contends appellant is barred from relief because the other misconduct was clear grounds for termination.   Appellant contends this ground could not be raised because it was unknown to respondent at the time appellant was discharged and, in any event, there are triable issues of fact.   We need not consider these contentions in light of our conclusion that the trial court properly ruled appellant was discharged based on dissatisfaction with her performance and appellant raised no triable issue of fact to show this was a pretext for age discrimination.

FOOTNOTE.    See footnote **, ante.

1.   The parties have raised issues concerning the failure of the law and motion judge to state the reasons for granting summary judgment as mandated by Code of Civil Procedure section 437c, subdivision (g).  However, the adequacy of the court's findings was not objected to in superior court and any issues in that regard has been waived.  (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1138, 275 Cal.Rptr. 797, 800 P.2d 1227 [failure to object to sufficiency of statement of decision bars raising any issue concerning the findings on appeal].)

2.   Mr. Kielgass and Mr. Enesco were employees of another entity involved in the management of the building and are not parties to this appeal.

3.   The parties have raised issues on appeal concerning the admissibility of evidence presented to the law and motion judge.   However, no party attempted to secure rulings on any evidentiary objections in the superior court.   Therefore, all evidentiary objections have been waived.   (Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1540, 270 Cal.Rptr. 198;  Imperial Casualty & Indemnity Co. v. Sogomonian (1988) 198 Cal.App.3d 169, 178, fn. 7, 243 Cal.Rptr. 639.

4.   Defendant argues that plaintiff gave two different versions of the conversation.   Defendant argues that at one point plaintiff said it was Dennis Kielgass and Joe Enesco who were the persons who said plaintiff was “too old” and not the company president.   Defendant contends she changed her testimony and claimed defendant's president also concluded she was “too old.”   Defendant reasons that this constituted inconsistent testimony and she was bound by her discovery concession that defendant's president, in her words, “had discussed with Dennis Kielgass and Joe Enesco about my age, and he said that they had decided I was too old.”   Several observations are pertinent.   First, as can be noted from the body of this opinion, plaintiff never testified that defendant's president said it was only the two employees of the other entity who concluded she was too old.   The fairest reading of her testimony is that all three men thought she was “too old.”   Common sense impels the conclusion there was no contradiction in the three pages of testimony during which defense counsel asked her to explicitly state what defendant's president said to her.   Second, if defendant wished to object to the consideration of her testimony that its president had also concluded she was “too old,” it should have secured a ruling on an evidentiary objection in superior court, something it failed to do and has therefore waived its right to raise the question in this court.  (Ramsey v. City of Elsinore, supra, 220 Cal.App.3d at p. 1540, 270 Cal.Rptr. 198;  Imperial Casualty & Indemnity Co. v. Sogomonian, supra, 198 Cal.App.3d at p. 178, fn. 7, 243 Cal.Rptr. 639.)   Third, the body of judicially developed law concerning contradictory discovery admissions is inapplicable to this case.   In D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20–22, 112 Cal.Rptr. 786, 520 P.2d 10, state authorities made certain admissions in interrogatory responses and, at the time of the summary judgment motion hearing, took entirely different positions concerning factual issues relating to certain constitutional questions.   The Supreme Court held that the state could not directly contradict its prior interrogatory responses.   Other cases have also followed the rule developed in D'Amico.  (Wagner v. Glendale Adventist Medical Center (1989) 216 Cal.App.3d 1379, 1391, 265 Cal.Rptr. 412 [the plaintiff did not create a triable issue as to the at will nature of her employment contract by changing her deposition answers and filing an affidavit in opposition to the summary judgment motion which was consistent with the changes];  Thompson v. Williams (1989) 211 Cal.App.3d 566, 573, 259 Cal.Rptr. 518 [the plaintiff at his deposition admitted the existence of an element of an accord and satisfaction but improperly later filed a summary judgment and satisfaction but improperly later filed a summary judgment motion opposition directly contradicting the testimony he gave when deposed];  Shapero v. Fliegel (1987) 191 Cal.App.3d 842, 849–850, 236 Cal.Rptr. 696 [in a legal malpractice action, the plaintiff could not admit at her deposition certain aspects of her relationship with her former attorney;  change her deposition answers once she received the transcript;  and then repudiate her original testimony in her declaration filed in opposition to a summary judgment motion];  State Farm Mut. Auto. Ins. Co. v. Eastman (1984) 158 Cal.App.3d 562, 573, 204 Cal.Rptr. 827 [plaintiff cannot claim a triable issue existed because of contradictions between her deposition testimony and summary judgment declaration];  Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 381–382, 121 Cal.Rptr. 768 [discovery response indicating plaintiff only suffered “ ‘nervous condition that interfered with’ ” her work could not later be contradicted in a summary judgment opposition by a claim she sustained “ ‘severe shock,’ ” “headaches,” pain, stiffening of her back and loss of weight as a result of an airplane mishap].)   This is not a case where there were contradictions between discovery admissions and a declaration filed in opposition to a summary judgment motion.   Plaintiff's deposition testimony was entirely consistent—defendant's president said she was being retired because he and two other men concluded she was “too old.”   All of plaintiff's relevant testimony is contained in the three pages of a transcript while subject to examination by one of defendant's attorneys.   As in Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482, 261 Cal.Rptr. 735, there is nothing in the record that is “materially inconsistent with the admissions.”   Defendant has failed to demonstrate that this is not a case where the responding party's evidence should not be liberally construed.   (See Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 373, 178 Cal.Rptr. 783, 636 P.2d 1121.)

5.   Defendant also argues that plaintiff violated work guidelines by washing dishes for building tenants.   However, at the time of her termination, defendant's president was unaware “she was doing extra work.”   Under title VII, when an employer makes an employment decision premised upon both legitimate business considerations and improperly upon the plaintiff's age, the defendant cannot prevail in litigation “by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision.”  (Price Waterhouse v. Hopkins, supra, 490 U.S. at p. 252, 109 S.Ct. at p. 1791 (plur. opn. of Brennan, J.);   see Smith v. General Scanning, Inc. (7th Cir.1989) 876 F.2d 1315, 1319.)   More importantly, there is a triable controversy as to whether plaintiff even violated any work rules by performing the extra services for building tenants.   Several of the declarations submitted on behalf of plaintiff indicated that the extra work was done with the full knowledge of her supervisor and never on company time.   Under these circumstances, there is a material controversy as to whether this additional work was a legitimate nondiscriminatory reason for her termination, particularly when the direct evidence as to why she was fired is considered.

6.   The present case abounds in triable disputes.   Plaintiff testified at her deposition that she was twice informed that she was being retired because she was “too old.”   Defendant's president denied referring to her age and testified he left open the opportunity of assigning her to another building at a lower rate of pay.   As will be noted in the body of this opinion, defendant's written records confirm the option was extended to work at another site for less money.   At her deposition, plaintiff denied she was ever offered another job.   If the jurors were to believe plaintiff, then they may very well conclude that defendant's president falsely testified in court as well as at his deposition as to the justification for the firing and intentionally misstated on a company document the reasons relating to her termination all of which would be circumstantial evidence of a coverup of a case of age discrimination.   This is a case where the very circumstances of the termination are in dispute.

7.   Defendant's president at his deposition admitted that it was normal to receive tenant complaints concerning the level of cleaning, doors being left unlocked, failing to vacuum, a trash can was missed and “the nature of our service is a very subjective type of performance․”

8.   She does not argue that if the stated reasons for the employment decision were true, termination was an excessive employment action.

9.   Federal courts prior to Price Waterhouse have held that “stray remarks” particularly by non-decisionmakers, may be of little consequence in title VII actions.   However, a United States Supreme Court majority narrowly applied the “stray remarks” concept in Price Waterhouse.  (See Price Waterhouse v. Hopkins, supra, 490 U.S. at pp. 251–252, 256–257, 272, 276–277, 281–282, 109 S.Ct. at pp. 1791–1792, 1793–1794, 1802, 1804–1805, 1806–1807 (plur. opn. of Brennan, J., conc. opn. of O'Connor, J., dis. opn. of Kennedy, J.).)

ASHBY, Associate Justice.

GRIGNON, J., concurs.