Earl v. Nielsen Media Research Inc.

• Decision Date: 26 September 2011
• Docket Number: No. 09–17477.,09–17477.
• Citation: 113 Fair Empl.Prac.Cas. (BNA) 609,11 Cal. Daily Op. Serv. 12263,2011 Daily Journal D.A.R. 14554,658 F.3d 1108
• Parties: Christine EARL, Plaintiff–Appellant,v.NIELSEN MEDIA RESEARCH, INC.; VNU USA, Inc., FKA the Nielsen Company (US), Inc., Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

658 F.3d 1108

113 Fair Empl.Prac.Cas. (BNA) 609

11 Cal. Daily Op. Serv. 12,263

2011 Daily Journal D.A.R. 14,554

Christine EARL, Plaintiff–Appellant,

v.NIELSEN MEDIA RESEARCH, INC.; VNU USA, Inc., FKA the Nielsen Company (US), Inc., Defendants–Appellees.

No. 09–17477.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 18, 2011.Filed Sept. 26, 2011.

Deborah Kochan and Matthew Stephenson, Kochan & Stephenson, San Francisco, CA, for the plaintiff-appellant.Matthew J. Ruggles and Adrianne B. Samms, Littler Mendelson PC, Sacramento, CA, for the defendant-appellee.Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, Senior District Judge, Presiding. D.C. No. 2:08–cv–00050–FCD–KJM.Before: PROCTER HUG, JR., THOMAS M. REAVLEY,^* and WILLIAM A. FLETCHER, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

Plaintiff Christine Earl appeals the district court's grant of summary judgment on her age and disability discrimination and wrongful termination claims under California law against defendant employer Nielsen Media Research, Inc. (“Nielsen”). Viewing the evidence in the light most favorable to Earl, reasonable jurors could find that Nielsen's proffered reason for terminating Earl's employment was a pretext for age discrimination. We therefore reverse the district court's grant of summary judgment against Earl on her age discrimination and wrongful termination claims. We affirm summary judgment against Earl on her disability discrimination claim.

I. Background

Plaintiff Christine Earl worked more than a dozen years as a Membership Representative, or “recruiter,” for Nielsen in Northern California. Nielsen measures television program audiences and provides the results to advertisers and media outlets. Earl's job was to recruit households with specified demographics and obtain their consent to install devices relaying their viewing habits back to Nielsen. Nielsen hired Earl in 1994 at age 47.

Earl's difficulties at work began in August 2005, when she violated a Nielsen policy forbidding recruiters from leaving gifts at unoccupied households. After receiving a verbal warning from her supervisor and a company-wide email to all recruiters reiterating the gift policy, Earl violated the rule again in January 2006. The next month, during an assignment in New York, Earl violated a different Nielsen policy requiring recruiters to keep a company map with them while recruiting targeted households. When a supervisor asked her how she signed a home without the map, Earl replied: “Magic?” As a result of these violations, Nielsen placed Earl on a Developmental Improvement Plan (“DIP”) in February 2006.

A DIP is an informal, nondisciplinary tool that Nielsen uses to notify an employee that his or her performance fell below company standards. A DIP is distinct from a Performance Improvement Plan (“PIP”), which is part of Nielsen's disciplinary process. Whereas Earl's DIP stated that her failure to meet company expectations in the future “may result in the implementation of the disciplinary process,” a PIP states that failure to meet expectations “may result in further disciplinary action up to and including termination.” At no point during her time at Nielsen did Earl receive a PIP.

Earl's supervisor, Sally Dollard, prepared her annual “Individual Contributor Performance Planning & Review” for the period between September 1, 2005, and August 31, 2006. Dollard wrote, “Christine ended the year with a sign average of 1.7. Her basic rate was an outstanding 72%.” Dollard also noted that Earl had been issued a DIP and noted the reasons for its issuance. In the summary section at the end of the Review, labeled “Key Strengths and Areas for Improvement,” Dollard wrote: “Christine's strength is with signing home[s] and the areas in need of improvement are listed below: Entering contact notes within 24 hours[.] Submitting expense books accurately[.] Ensuring that she always follows policy and procedure.” Dollard concluded, “Overall Christine had a good year with her production and she is always consistent with signing homes.”

In September 2006, Earl was diagnosed with peripheral neuropathy. She told others at Nielsen, including her supervisor Dollard, that she was suffering from the condition. In her deposition, she described it as follows: “[M]y feet hurt because ... the nerves are dying, so the secondary nerves take over and the only thing they register—heat, cold and pressure register as pain, so they always hurt. And the more I walk on them the more they hurt.” Earl told the others that peripheral neuropathy was hereditary, and that as she got older the condition would get progressively worse. She told everyone, including Dollard, that her father had the same condition: “[M]y dad had no feeling up to his thighs. Although he could walk, he just couldn't feel anything. So it's definitely a progressive thing, so I told people that.”

In October 2006, while on an assignment in Texas, Earl obtained the consent of a household with the proper demographics (319 Lake Forest Drive) but mistakenly wrote down the address of a different home (327 Lake Forest Drive) on the form signed by the homeowner. Neither she nor the homeowner noticed the mistake. Earl later entered the address of the wrong house in the Nielsen computer system. In doing so, Earl violated company policy requiring her to verify the home address during the recruitment process and before entering it into the system. The next month, when a Nielsen technician arrived at 327 Lake Forest Drive to install the monitoring device, the owner objected. The technician then located 319 Lake Forest Drive two doors down the street and successfully installed the equipment there. Nielsen learned of Earl's mistake in December 2006.

Nielsen terminated Earl's employment in January 2007. She was 59 years old. In the months before and after Earl's termination, Nielsen hired five new recruiters for her region: four in their 20s, and one in his early 30s. One of the new recruiters filled the position vacated by Earl. Nielsen paid the newly hired recruiters a salary less than half Earl's salary.

In October 2007, Earl brought suit against Nielsen in California Superior Court, alleging age and disability discrimination under the California Fair Employment and Housing Act (“FEHA”), as well as wrongful termination in violation of public policy. Nielsen removed the case to federal court based on diversity. In September 2009, the district court granted summary judgment in favor of Nielsen on Earl's age discrimination claim. The court found that Earl had established a prima facie case of age discrimination but had failed to produce sufficient evidence to allow a reasonable jury to conclude that Nielsen's proffered nondiscriminatory reason for her termination was pretextual. The court also granted summary judgment in favor of Nielsen on Earl's claims of disability discrimination and wrongful termination.

Earl timely appealed.

II. Standard of Review

We review the district court's grant of summary judgment de novo, construing the facts in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor. Noyes v. Kelly Servs., 488 F.3d 1163, 1166 n. 1, 1167 (9th Cir.2007). We consider whether a genuine dispute of material fact exists and whether the district court correctly applied the relevant substantive law. Id. at 1167–68. “[S]ummary judgment should be used prudently in [age discrimination] cases involving motivation and intent.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir.2000). “We require very little evidence to survive summary judgment in a discrimination case, because the ultimate question is one that can only be resolved through a searching inquiry—one that is most appropriately conducted by the factfinder, upon a full record.” Lam v. Univ. of Hawaii, 40 F.3d 1551, 1564 (9th Cir.1994) (citations and internal quotation marks omitted).

III. Discussion

A. Age Discrimination

FEHA prohibits employers from discharging or dismissing any employee over 40 years old based on the employee's age. CAL. GOV'T CODE §§ 12926(b), 12940(a). Because state and federal employment discrimination laws are similar, California courts look to federal precedent when interpreting FEHA. Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000). In particular, California courts use the familiar McDonnell Douglas burden-shifting test when analyzing disparate treatment claims under FEHA. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).

Under the three-part McDonnell Douglas test, the plaintiff bears the initial burden of establishing a prima facie case of employment discrimination. Noyes, 488 F.3d at 1168. Once the plaintiff has done so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Id. If the employer articulates a legitimate reason, the plaintiff must raise a triable issue that the employer's proffered reason is pretext for unlawful discrimination. Id. The ultimate burden of persuasion remains with the plaintiff. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

The district court found that Earl established a prima facie case of age discrimination because (1) she was over age 40 and thus a member of a protected class; (2) she suffered an adverse employment action; (3) she received a satisfactory performance evaluation only months before her termination; and (4) she lost her job to a substantially younger employee. The district court also found that Nielsen articulated a legitimate, nondiscriminatory reason for Earl's termination by pointing to her multiple violations of company policy. The “central dispute” on appeal is whether Earl presented sufficient evidence to raise a triable issue of pretext and thereby...