Carol Cheal worked at El Camino Hospital in its Nutrition Services Department over twenty years until her discharge in October 2008 at age 61.  She held the position of Dietetic Technician.  Cheal always received at least "meets standards" evaluations, up to and including her August 2007 evaluation. 

After July 2007, Kim Bandelier was hired to supervise clinical nutrition services employees, including Cheal.  By January 2008, Bandelier was accusing Cheal of numerous shortcomings and Cheal received a written warning on April 14, 2008 for failing to conform to the hospital's "two-patient identifier procedure."  Cheal received a second, "final" warning on June 3 for failure to comply with the same procedure. 

On September 8, 2008, Bandelier accused Cheal of incorrectly preparing one or more menus for a patient.  On September 25, 2008, a hospital manager told Cheal that she was no longer competent to perform her duties and that she could either accept another position, accept a severance or be discharged.  On October 10, 2008, Cheal was terminated.

Cheal filed an action for age discrimination, wrongful termination, failure to investigate or take corrective action against age discrimination and retaliation for complaints of unlawful discrimination.  The trial court entered summary judgment for the hospital and Cheal appealed.

The first ground cited by the trial court for granting summary judgment was that Cheal made several mistakes on menus from January through May, 2008 and failed to perform her job competently.  Accordingly, the trial court held that Cheal could not establish a prima facie case for discrimination because she is required to demonstrate the she was performing competently.  However, the Court of Appeal found that the nature of Cheal's job was such that the mistakes Cheal was cited for were, in fact, anticipated and inevitable.  For example, the hospital prepares about 500 meals a day and Cheal's performance evaluation itself included standards that appeared to allow for up to one mistake per day relating to menus.

Violations of the "two-patient" identifier procedure" was also a basis for Cheal's termination. This procedure requires menu clerks to mark restricted-diet menus with the patient's first and last name and date of birth so the person delivering the meal could use the information to confirm identity.  The Court noted that there was a triable issue of fact as other employees appeared to have violated this procedure more often than Cheal and the number of times Cheal was alleged to have violated the procedure could have been exaggerated. 

Based upon these, and similar, findings, the Court held that a jury could determine that the hospital did not have a legitimate, non-discriminatory reason for terminating Cheal and instead was motivated by discriminatory animus.  Supporting the Court's determination was a testimony of a former friend of Bandelier's who stated that Bandelier once told her that she favored "younger" employees. 


This case illustrates several important lessons for schools that terminate employees for performance issues.  First, the school needs to have accurate documentation that identifies the performance issues.  Furthermore, the school should consider whether other employees who have engaged in similar misconduct have been disciplined.  While no two instances of misconduct are exactly alike, and the level of disciplinary action may vary depending on many circumstances, the Cheal decision makes clear that unequal discipline can lead to an inference of discrimination.  In addition, even one "stray" remark, such as a comment that a supervisor prefers younger employees, can suggest that disciplinary action was motivated by age as opposed to legitimate criteria. 

Cheal v. El Camino Hospital (2014) __ Cal.App.4th __ [2014 WL 346034]