Earl v. Nielsen Media Research, Inc.
2011 U.S. App. LEXIS 19616
| 9th Cir. | 2011Background
- Earl, a 59-year-old Nielsen recruiter, was terminated in January 2007 after multiple policy violations.
- She had been on a Developmental Improvement Plan (DIP) in 2006 but never received a Performance Improvement Plan (PIP).
- She disclosed a diagnosis of peripheral neuropathy in 2006 and discussed it with supervisors.
- Nielsen hired significantly younger recruiters shortly before and after her termination, paying them substantially less than Earl.
- The district court granted summary judgment for Nielsen on all FEHA claims; the Ninth Circuit later addressed age discrimination and wrongful termination, affirming disability-discrimination summary judgment.
- The core issue is whether Nielsen’s reasons for termination were pretextual for age discrimination
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Earl shows pretext for age discrimination | Earl shows younger, similarly situated employees violated policies with less severe consequences | Nielsen acted consistently and terminated Earl for policy violations | Yes; triable issue on pretext exists |
| Whether other recruiters are sufficiently similar for pretext comparison | Younger recruiters with similar violations were treated more leniently | Only exact policy violations matter for similarity | Yes; contemporaries are sufficiently similar to support pretext finding |
| Whether deviation from internal procedure supports pretext | Nielsen terminated Earl without a pre-termination PIP while younger employees with serious issues received PIPs | Disciplinary procedures allowed discretion and were not uniformly applied | Yes; triable issue on deviation and inconsistent application |
| Whether Earl waived disability-discrimination appeal | (Not asserted) | (Not asserted) | Affirmed summary judgment on disability claim due to waiver |
| Whether wrongful termination survives with age-discrimination ruling | If age discrimination is shown, wrongful termination should also survive | Wrongful termination depends on FEHA and public policy implications independent of age claim | Remanded with age claim; wrongful termination predicated on age claim survives |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden-shifting framework for discrimination)
- Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (U.S. 2000) (ultimate burden on plaintiff remains with plaintiff)
- O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (U.S. 1996) (age discrimination analysis; replacement by a substantially younger employee as evidence)
- Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317 (Cal. 2000) (California FEHA interpretation uses federal precedents; McDonnell Douglas test applied)
- Noyes v. Kelly Servs., 488 F.3d 1163 (9th Cir. 2007) (standard for summary judgment in discrimination cases; pretext inquiry)
- Vasquez v. Cnty. of Los Angeles, 349 F.3d 634 (9th Cir. 2003) (comparative evidence; similarly situated employees)
- Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151 (9th Cir. 2010) (similarly situated inquiry; not requiring same supervisor)
- Beck v. United Food & Commercial Workers Union Local 99, 506 F.3d 874 (9th Cir. 2007) (comparators within protected class for pretext)
- Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116 (9th Cir. 2009) (comparative evidence of multiple issues can support pretext)
- Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201 (9th Cir. 2008) (evidence of deviation from internal procedures supporting pretext)