Ninth Circuit - Inconsistency Costs Employer Summary Judgment

So, the Ninth Circuit in Earl v. Nielsen Media Research reversed summary judgment in an age discrimination case.  Earl violated several company policies over time. She was placed on a Development Improvement Plan and ultimately was fired.  As she was nearly 60, she claimed age discrimination motivated her discharge.

The Ninth Circuit reversed summary judgment.  Earl showed that younger employees violated the same policies without getting fired.  Because they were sufficiently similar employees (same positions, same policy violations), they were adequate to satisfy the "similarly situated" requirement for comparing employees.  When you read this case, you will know why we management side lawyers always preach consistency.

The court's second point was that the employer did not apply a performance improvement plan to plaintiff Earl, which they had done for other employees. The court rejected the company's argument that it employed people "at will" and could deviate from the progressive discipline system.

Earl was terminated after receiving a single DIP. She never received a PIP, a much more serious warning. Earl has presented evidence that in terminating her without first issuing a PIP, Nielsen deviated from its normal internal disciplinary procedure. In May 2006, Nielsen did not terminate employee 46432, a younger recruiter, even though he had extremely serious performance issues, because he had received only a DIP. In an email exchange with other company officials, Bob Burns wrote: “As much as it sounds reasonable to terminate him without a PIP, it would not be consistent with our procedure.” Employee 46432 was eventually terminated, but only after issuance of a PIP.
Thus, the court found that the company's insistence on a PIP for a younger employee in the name of consistency raised a factual question regarding the company's willingness to forgo the PIP re Earl. It is unclear whether the company tried to show the court there were a variety of employees of a variety of ages who had received and not received PIPs.  If so, perhaps the employer would not have lost this point.

If your organization uses PIPs and other progressive discipline, it is important to understand that if you make an exception, you risk a claim of disparate treatment unless you can explain why employees who receive different treatment are not similarly situated. It also is important to ensure that progressive discipline is not applied differently to different protected individuals.

The opinion is Earl v. Nielsen Media Research, Inc. and the opinion is here.