The Ninth Circuit contributes to the latest in a roster of recent U.S. Courts of Appeals’ decisions reversing summary judgment in cases where the district court applied a too-strict standard of “similarly situated” to evaluate an employee’s claim of discriminatory discipline under the McDonnell Douglas test.
Earl v. Nielsen Media Research, No. 09-17477 (9th Cir. Sept. 26, 2011): Plaintiff Earl, who was terminated at age 59, worked as a Membership Representative, or “recruiter,” for the famous Nielsen rating system, which involved the signing-up of representative families to keep track of their TV viewing habits. Leading up to that termination, it appears undisputed that over an eighteen-month period (during 2005-06), the plaintiff committed several work-rule violations (giving a gratuity to one household, failing to keep a map of her destination, misrecording the address of one Nielsen household).
As is often the case in employment discrimination cases (this action was brought under the California Fair Employment and Housing Act), the employer claimed that the termination decision was motivated by Earl’s disciplinary record, rather than her age. The district court agreed, but the Ninth Circuit reverses, holding that other younger recruiters (ages 37, 39 and 42) also had disciplinary records but kept their jobs – and one possibly was not disciplined at all. Nielsen protests that the violations that those recruiters committed were different.
Nielsen used two levels of disciplinary write-ups: the Developmental Improvement Plans (“DIP”), which amounted to a correction and a warning; and the more-serious Performance Improvement Plans (“PIP”), a definite step in the direction of termination, i.e., a notice of the employee’s “failure to meet expectations” that “may result in further disciplinary action up to and including termination.”
Earl was never placed on a PIP before she was fired, but two and possibly three recruiters in their 30s and early 40s were not fired in spite of being placed on a PIP. “Earl has presented specific and substantial evidence that Nielsen did not terminate significantly younger recruiters with similar histories of multiple policy violations.” Despite that the categories of violations varied from recruiter to recruiter, the employer was on record as treating them as comparable:
“Nielsen itself identified the other recruiters’ violations as similar to Earl’s. The company produced evidence of these violations in response to Earl’s discovery request for information about other recruiters whom the company disciplined for ‘violating the same company policies and procedures.’ In complying with the discovery request, Nielsen’s human resources manager emailed other officials in search of instances where the company disciplined or terminated employees for ‘signing the wrong household.'”
Moreover, “the relevant Nielsen policies and procedures all serve the same purpose. Nielsen lists the polices in its written recruiting procedures. All of them concern the proper collection and verification of household information in order to ensure accurate data.” And the company’s own documents indicated that in considered the younger recruiters’ violations to be of “comparable seriousness.” Finally, “Even if issuance of a pre-termination PIP was not Nielsen’s formal policy, the above evidence is also relevant to show that Nielsen applied a more forgiving disciplinary process for younger recruiters who were similarly situated to Earl.”
Thus, that the plaintiff and younger recruiters were not managed by the same supervisor, and did not work at the same facility, did not rob the younger employees’ circumstances of probative value. The panel cited other evidence as well, tending to make age a more likely reason for the decision. Notably, “[i]n the months before and after Earl’s termination, Nielsen hired five new recruiters for her region: four in their 20s, and one in his early 30s. One of the new recruiters filled the position vacated by Earl. Nielsen paid the newly hired recruiters a salary less than half Earl’s salary.”
For these reasons, the panel holds that there is enough evidence for a jury to infer age discrimination. (The panel affirms summary judgment on disability discrimination, holding that the plaintif abandoned that ground of appeal.)