When an employer inconsistently imposes discipline and does not follow its own discipline procedures and policies, it leaves room for employees to make claims of discriminatory animus. This was recently highlighted in a recent U.S. Ninth Circuit Court of Appeals decision, Earl v. Nielsen Media Research, Inc. The Court held that an employee with a history of performance issues produced enough evidence to present her age discrimination case to a jury.
Christine Earl, age 59, worked as a recruiter for Nielsen Media Research for about 12 years. Nielsen measures television program audiences and provides the results to advertisers and media outlets. Earl’s job was to recruit households and obtain their consent to install Nielsen devices relaying their viewing habits back to Nielsen. In August 2005 and January 2006, she received verbal warnings for violating a Company policy by leaving a gift at an unoccupied household. In February 2006, Earl violated a policy requiring her to keep a company map that resulted in her being placed on a Developmental Improvement Plan (DIP). A DIP is an informal, non-disciplinary tool that Nielsen uses to notify an employee of below standard performance. Earl never received a Performance Improvement Plan (PIP), however, which is part of the Company’s disciplinary process. Earl’s performance evaluation for 2005- 2006 noted her DIP, but also commended her strong ability in signing new homes and commended her good production. In October 2006, she obtained the consent of a household but mistakenly wrote down the incorrect address.
In January 2007, Earl was terminated for these performance issues. Nielsen replaced her with a much younger recruiter, and Earl sued the Company for age discrimination. The trial court granted summary judgment, but the Ninth Circuit reversed. Finding that Earl had provided enough evidence to show that the Company’s reasons for terminating her may be pretextual. If a plaintiff can establish a prima facie case of discrimination, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its decision. The burden then shifts back to the plaintiff to establish with specific and substantial facts that the proffered reason is pretextual.
The Ninth Circuit noted that Earl offered evidence that three employees between the ages of 37 and 42 had violated numerous policies relating to the proper collection and verification of household information but they were not terminated. The Court also found immaterial that two of the comparison employees were over the age of 40. The proper inquiry is whether the other recruiters were significantly younger than Earl, and here they were. Finally, Earl presented evidence that the company had deviated from its regular procedure when it terminated Earl without first placing her on a PIP, as it did with the other employees. Even if the company did not have an official policy of first placing employees on PIPs, there was evidence that Nielsen had a practice of applying a more forgiving disciplinary process to younger employees who were similarly situated to Earl.
The lesson to take away from this case is that an employer can better avoid claims of age discrimination if discipline is consistently applied, regardless of age. If an employee is treated differently than others, he or she may present this as evidence of discriminatory animus and the reason for the differential treatment. Employers should train supervisors to follow and impose discipline policies and procedures in a consistent manner to minimize the risk of being accused of discrimination.