Evidence Of Harsh Discipline Against More Mature Employees Can Be Evidence Of Pretext In An Age Discrimination Case

By: Morin I. Jacob
California Public Agency Labor & Employment Blog, November 29, 2011

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. 

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