• "Similarly Situated” Employee In Age Discrimination Case Can Be A Substantially Younger Employee Who Is Over The Age Of 40
  • October 4, 2011 | Authors: Laura Izon Powell; Bruce A. Scheidt; David W. Tyra
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In Earl v. Nielsen Media Research, Inc. (--- F.3d ----, C.A.9 (Cal.), September 26, 2011), the United States Court of Appeals for the Ninth Circuit considered whether a terminated employee could establish age discrimination by showing her employer treated employees who were significantly younger than her, but who were also over the age of 40, less harshly for similar violations of company policy. The court of appeals found that comparison with younger employees within the protected class of those over the age of 40 is not improper as a matter of law.

    The Facts
    Over the dozen years Christine Earl (“Earl”) worked as a recruiter for Nielsen Media Research, Inc. (“Nielsen”), she twice violated Nielsen’s rule against leaving a gift at an unoccupied house. Earl also violated a company rule that required her to keep a map with her while recruiting. Nielsen placed Earl on a “Development Improvement Plan” or “DIP,” which is an informal, nondisciplinary tool used to notify an employee of unsatisfactory performance. A “Performance Improvement Plan” or “PIP,” is a disciplinary measure, which warns that if an employee fails to meet expectations, further disciplinary action may result. Earl never received a PIP. However, a few months after she received a positive performance evaluation in August 2006, she violated a company policy requiring her to verify information twice. Nielsen terminated Earl’s employment in January 2007 when she was 59 years old. Around this same time, Nielsen hired four new recruiters in their 20s and one in his early 30s.

    Earl brought a lawsuit against Nielsen for age discrimination. The trial court granted summary judgment in favor of Nielsen because it found Earl had failed to produce sufficient evidence that Nielsen’s reason for firing her was pretextual.

    The Decision
    California’s Fair Employment and Housing Act prohibits an employer from dismissing or discharging an employee over 40 years old because of the employee’s age. Earl set out a prima facie case of age discrimination because she showed she was over 40, she suffered an adverse employment action, she had just recently received a satisfactory performance evaluation, and she lost her job to a substantially younger employee. Nielsen provided a legitimate nondiscriminatory reason for terminating Earl. She had committed multiple violations of company policy.

    The burden then shifted to Earl to show the reason offered by Nielsen for terminating her was mere pretext for discrimination. Earl offered evidence that Nielsen treated other younger “similarly situated” employees more favorably. Near the time when Nielsen terminated Earl, it did not terminate, and in at least one instance, did not discipline younger employees in their 30s and 40s who violated similar company policies. One employee who just turned 40 was not fired after committing three similar violations. A 42-year-old employee committed numerous violations but Nielsen declined to terminate him without first following company policy by issuing a PIP. The PIP policy was not followed in regard to Earl’s termination.

    An employee is similarly situated to a plaintiff when he or she has a similar job and displays similar conduct. An exact match of violations is not necessary. Also, the other employee does not have to have the same immediate supervisor as a plaintiff before he or she can be considered a similarly situated employee. A similarly situated employee in an age discrimination case does not have to be less than 40 years of age. A comparison may be made with younger employees who are also members of the protected class, which in age discrimination cases are those over 40.

    The key inquiry is not whether the other employees are outside the protected class, but whether the other employees are significantly younger than Earl. The fact that an employer replaced an employee with someone who is substantially younger is a more reliable indicator of age discrimination than the fact that an employee was replaced by another employee who was under the age of 40.

    The Court of Appeals reversed the decision of the trial court and remanded the case to allow Earl to proceed with her discrimination claim.