Nielsen’s Summary Judgment Reversed in Age Discrimination Case where Younger Employees – even if over the age of 40 themselves – Treated More Leniently for Committing Similar, but not Identical, Violations and Nielsen Failed to Follow its own Procedures

Nielsen Media Research convinced the district court to grant summary judgment in this age discrimination case, and the district court held that plaintiff, Ms. Earl, failed to prove that Nielsen’s actions were a pretext for discrimination. Earl v. Nielsen Media Research, Inc., — F.3d —-, 2011 WL 4436250 (9th Cir. Sept. 26, 2011). Nielsen measures television program audiences. Ms. Earl was a recruiter, whose job was to recruit certain households to permit Nielsen to install television monitoring devices on their premises. Nielsen fired Ms. Earl, age 59, claiming that after a dozen years of work, she violated company policy by failing to verify the home address of a recruit. Ms. Earl had also previously violated policies, which had resulted in her placement on a Development Improvement Plan (DIP), but nonetheless, she received a good performance review and was never placed on the more serious Performance Improvement Plan (PIP).

Earl appealed the granting of summary judgment and claimed that circumstantial evidenced established that her firing was a pretext for age discrimination. The Ninth Circuit agreed, primarily relying on the fact that similarly situated younger employees were treated more leniently. In doing so, the Ninth Circuit provided a more practical and plaintiff-friendly definition of “similarly situated employees” (including what constitutes similarly situated conduct), making it more difficult for defendants to slice and dice the conduct in question and claim that the comparative younger employees were not really similarly situated.

The Earl v. Nielsen case rejected the notion that to be similarly situated the (younger) employees in question have to violate the exact same policy or commits the exact same transgression. Looking at factors such as whether the policy serves the same purpose and is of comparable seriousness, the Court counseled for the use of a “common sense” approach. Here the younger comparators signed up houses that did not meet Nielsen’s criteria, whereas Earl’s recruits met the criteria but she recorded an incorrect address. The Court found that these were comparators as they were similarly situated and/or committed similar transgressions. The court rejected the notion that the conduct of the comparators must be identical.

The Court also clarified that substantially younger employees can include employees who are themselves within the protected class, that is, employees who are over 40 years of age. Where Ms. Earl was 59 years old, a 42 year old was substantially younger for purposes of the age discrimination.

Lastly, the Court addressed the question of whether failure to follow company policies and procedures provides evidence of pretext, holding that it does. The Court found that plaintiff presented sufficient evidence to suggest that company policy and procedure required the institution of a PIP, not just a DIP, prior to termination. Thus, the fact that Ms. Earl was put on a DIP prior to her termination, rather than a PIP, was a violation of company policy which serves as further evidence of pretext. The Court did note that, regardless of whether Ms. Earl presented sufficient evidence that company policies and procedures required a pre-termination PIP, since the company said it did so for a younger employee, the evidence clearly demonstrated that younger employees were treated more leniently. This itself was an alternative grounds for establishing pretext, the pretext being that that younger employees were treated more favorably, regardless of whether company policy or procedure so required it.
This case warns wayward lower courts not to toss out discrimination cases by making their own findings regarding “motivation and intent,” instead of leaving these fact intensive questions where they should remain, shall remain and hopefully always do remain: with the fact finder, and preferably the jury.

Jody LeWitter
October 18, 2011