Stray Comments by Decisionmaker Created Question of Fact as to Anti-Gay Animus

In Husman v. Toyota Motor Credit Corp. (June 21, 2017) 12 Cal. App. 5th 1168, a 14-year former employee of Toyota, Joseph Husman, sued Toyota for discrimination and retaliation in violation of Fair Employment and Housing Act (FEHA) and for wrongful discharge, alleging he had been fired from his executive-level management position because of his sexual orientation and criticisms he made concerning Toyota’s commitment to diversity. The trial court granted Toyota’s motion for summary judgment. The employee appealed. The Court of Appeal affirmed in part and reversed in part, holding that (1) summary judgment evidence demonstrated that Toyota had legitimate, nondiscriminatory reason for discharging employee; but that (2) Toyota had not sufficiently demonstrated that Husman’s discharge was unmotivated by impermissible bias; (3) issues of fact remained as to whether the discharge was “substantially motivated” by impermissible bias; and (4) Husman’s complaints allegedly concerning Toyota’s commitment to diversity did not demonstrate Husman engaged in protected conduct.

The key was that Husman presented evidence that the decisionmaker, Pelliccioni, “harbored stereotypical views of gay men and articulated clear opinions as to what he considered appropriate gender identity expression.” Pelliccioni “ridiculed” Plaintiff for “wearing a scarf as an accessory when it was not cold outside,” which Husman argued revealed that Pelliccioni viewed him as “too gay” and incompatible with Toyota’s corporate culture, even if a less obviously gay employee would be acceptable. Although Pelliccioni’s remarks were not made in the direct context of the termination, the Court of Appeal held that “it is difficult to deny that any bias he felt or expressed toward Husman had the capacity to affect management’s perceptions of Husman’s performance and attitude, as well as exacerbate Husman’s own increasingly alienated behavior.” Thus, the proffered business reason, that Husman had become increasingly subordinate and difficult to manage, was potentially pretextual or merely evidence of a “mixed motive.”

On the other hand, Husman’s retaliation claim failed. Husman’s claim of retaliation was based on (1) his complaint that Pelliccioni had refused to include AIDS Walk LA on the list of automatic payroll deductions; and (2) his comment to the Diversity Advisory Board that, while Toyota’s LGBT employees had made some progress, “there was still work to be done.” The Court held that neither of these passed muster as the predicate for a retaliation claim, because as for the first, the denial did not violate any provision of the FEHA, and as to the second, it was too generalized and “common” to have placed the company on notice of any allegedly unlawful behavior, or to have form the basis of a retaliatory act.

The takeaway here on the discrimination side is that any statement made by a potential decisionmaker that may tend to show bias could be enough as a “stray comment” to preclude summary judgment. Plaintiffs should keep in mind that even if a single stray comment may not be enough to support a hostile work environment claim. On the retaliation front, this reflects that a retaliation claim must be based on a specific complaint of unlawful conduct, not generalized statements or a belief that a company could “do more.”