Employment-Ninth Circuit Rules That Plaintiff Has Raised A Triable Issue Of Age Discrimination

In Earl v. Nielson Media Research, Inc., No. 09-17477 (9th Cir. 2011), the plaintiff, Christine Earl (“Earl”), was appealing the district court’s grant of summary judgment against her on, among others, her claim of age discrimination under California law against her former employer, Nielson Media Research, Inc. (“Nielson”). Earl had brought the suit after Nielson had fired her. The Ninth Circuit Court of Appeals (the “Court”) ruled that reasonable jurors could find that Nielsen’s proffered reason for firing Earl was a pretext for age discrimination. It therefore reversed the district court’s grant of summary judgment on the age discrimination claim.

While working for Nielson, on several occasions, Earl had violated Nielson policies. As a result, Nielsen placed Earl on a Developmental Improvement Plan (“DIP”). A DIP is an informal, nondisciplinary tool that Nielsen uses to notify an employee that his or her performance fell below company standards. A DIP is distinct from a Performance Improvement Plan (“PIP”), which is part of Nielsen’s disciplinary process. Whereas Earl’s DIP stated that her failure to meet company expectations in the future may result in the implementation of the disciplinary process, a PIP states that failure to meet expectations may result in further disciplinary action up to and including termination. At no point during her time at Nielsen did Earl receive a PIP. Nevertheless, Nielson later fired Earl. She was 59 years old when terminated. She then filed this suit.

In analyzing this case, the Court said that California law prohibits employers from discharging or dismissing any employee over 40 years old based on the employee’s age. Borrowing from the federal three-part McDonnell Douglas test, first, the plaintiff bears the burden of establishing a prima facie case of age discrimination. Second, once the plaintiff has done so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Third, if the employer does so, the plaintiff must raise a triable issue that the employer’s proffered reason is a pretext for age discrimination. In this case, the issue is whether the plaintiff, Earl, has met her burden in the third step and may therefore avoid summary judgment. The Court found that, here, Earl raises a triable issue by presenting evidence that :

–Nielsen treated younger, similarly situated employees more favorably- Nielsen did not terminate–and in one instance may not have even disciplined–younger “recruiters” in their 30s and 40s when those recruiters repeatedly violated Nielsen policies similar to those violated by Earl; and

— in terminating Earl without first issuing her a PIP, Nielsen deviated from its normal disciplinary procedure.

As such, Earl may avoid summary judgment.