Weekly Law Resume - October 20, 2011: Summary Judgment is Improper Where Plaintiff Raises Triable Issue that Employer's Reason for Termination Was Pretext for Unlawful Age Discrimination


California's Fair Employment and Housing Act ("FEHA") prohibits employers from discharging or dismissing any employee over forty years old based on the employee's age. In this case, the Ninth Circuit addressed the "similarly situated" standard to evaluate an employee's claim of discriminatory discipline under the McDonnell Douglas test.

Christine Earl worked as a recruiter for Nielsen Media Research, Inc. ("Nielsen") for over twelve years after she was hired in 1994 at age forty-seven. In February, 2006, as a result of three violations of Nielsen's policy rules, Ms. Earl was placed on a Developmental Improvement Plan ("DIP"), a non-disciplinary tool used to notify an employee that their performance has fallen below company standards. Ms. Earl's annual performance for the year was favorable, despite the mention of the DIP.

In September, 2006, Ms. Earl was diagnosed with peripheral neuropathy, and informed the company of her condition. In January, 2007, Nielsen terminated Ms. Earl's employment, hiring five new recruiters for her region in the months before and after, four in their twenties and one in their early thirties. Ms. Earl filed suit against Nielsen, alleging, from among other matters, age discrimination. The District Court granted summary judgment to Nielsen on Ms. Earl's age discrimination claim, finding that she failed to produce sufficient evidence to allow a jury to conclude that Nielsen's proffered non-discriminatory reason for termination was pretextual.

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