Jane Doe, a woman plaintiff, created a successful software business and then sold it to SoftwareONE, Inc., a global corporation. They promised her an executive position, but within a year, her job was accompanied by demands for what she called “outlandish” behavior. For example, on a corporate retreat, the company’s CEO Patrick Winter (since deceased), ordered her to dance on stage while he poured champagne down her throat.

She complained, was reassigned to an inferior position, and learned she had been called a “bitch” who was never going to make it in the “guys’ club.” She was soon terminated. She sued, alleging defendant SoftwareONE Inc.’s behavior was discriminatory and retaliatory. Defendant’s motion for summary judgment was granted. Doe appealed and was granted a new trial. Defendants appealed, but this time, they lost.

Writing for a unanimous three-judge panel of Division Three of the Fourth District Court of Appeal, in a non-published opinion, Associate Justice Maurice Sanchez affirmed the order of Orange County Superior Court Judge David A. Hoffer that granted Doe the right to a new trial. The appellate opinion is not for publication.

Plaintiff is referred to as Jane Doe in her lawsuits, but media reports identified her as Carol Eastman, the founder of House of Lync, a software company related to Microsoft’s Skype application. SoftwareONE Inc. is headquartered in Switzerland. The company has approximately 8,700 employees and 65,000 customers. Doe had complained about CEO Patrick Winter’s behavior to the head of SoftwareONE’s American division.

The new trial was ordered because the Fourth Circuit panel concluded that the evidence was “sufficient to support a reasoned inference that plaintiff’s demotion or firing was the result of discriminatory or retaliatory animus.” Sanchez’s opinion concluded that when the evidence was viewed in a “light most favorable to plaintiff,” there would be enough to convince a jury that it was SoftwareONE’s pervasive “discriminatory culture” rather than her alleged subpar performance that caused her firing.

Defendant’s arguments for a new trial made five claims. Sanchez agreed with the defendant on the first claim and held that the case should be reviewed under the “de novo” standard of review. This review is required when a “trial court grants a motion for a new trial based on an error of law” in a successful motion for summary judgment. De novo means that the case should be decided without reference to any previous cases.

The remainder of defendant’s arguments about evidence, however, were to be reviewed under the “abuse of discretion” standard rather than the de novo standard. With this in mind, Sanchez turned to the evidence. First, he reviewed the “same actor inference,” which requires that plaintiff present “strong evidence of discriminatory motives” if a summary judgment motion is to survive. Because Doe came from a company that was acquired by SoftwareONE, Inc., and because she was given an executive position in the company as Head of Solution Sales, Sanchez ruled that “strong evidence,” rather than customary evidence, was not necessary.

Doe was also able to present enough evidence that could cause a jury to conclude she was replaced as Head of Solution Sales by a younger man. Plaintiff might also be able to show that her declarations and those of others about events and conversations would corroborate each other with regard to Doe’s successor.

The next bone of contention related to defendant’s evidence about Doe’s performance. Sanchez notes that “the record is replete with evidence of plaintiff’s good performance at work.” Six different employees wrote about her “exemplary performance and behavior.” Defendant’s disagreement with these compliments, Sanchez wrote, is “a triable issue of fact.”

Finally, defendants asked that comments by Jason Cochran,” SoftwareONE’s director of technical services, be dismissed as hearsay. These included reports of Doe being a “bitch” and that SoftwareONE was a “guys’ club,” so Doe was “never going to make it.” Cochran’s statement that Doe had been called a “bitch” had been ruled admissible by Superior Court Judge Hoffer because it was not “being offered to prove the truth of the matter stated, but as evidence of animus against the plaintiff.” Cochran’s two other reports of pejorative statements were also found to be admissible because Cochran held a leadership position in the corporate hierarchy. Sanchez agreed that Cochran’s position gave him adequate authority to speak about the company’s culture. Sanchez ruled that Hoffer did not abuse his discretion when he admitted those statements into evidence.

For all these reasons, Jane Doe will be given a new trial and another chance to convince a jury that her firing was discriminatory and retaliatory. If she succeeds, she will this time, have a good reason to drink champagne.