United States v. 2011-09-26 | 09-17477 | Christine Earl V. Nielsen Media Research, Inc. |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CHRISTINE EARL,
Plaintiff-Appellant, No. 09-17477
v. D.C. No.
2:08-cv-00050-  NIELSEN MEDIA RESEARCH, INC.; FCD-KJMVNU USA, INC., FKA The
Nielsen Company (US), Inc., OPINION
Defendants-Appellees. 
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted
March 18, 2011—San Francisco, California
Filed September 26, 2011
Before: Procter Hug, Jr., Thomas M. Reavley,* and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
*The Honorable Thomas M. Reavley, Senior Circuit Judge for the Fifth
Circuit, sitting by designation.
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COUNSEL
Deborah Kochan and Matthew Stephenson, KOCHAN &
STEPHENSON, San Francisco, California, for the plaintiff-
appellant.
Matthew J. Ruggles and Adrianne B. Samms, LITTLER
MENDELSON PC, Sacramento, California, for the
defendant-appellee.
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 discrimi-
nation 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
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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 relay-
ing 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 warn-
ing 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 requir-
ing recruiters to keep a company map with them while recruit-
ing 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 disci-
plinary 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 “Indi-
vidual 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
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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: Enter-
ing 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 supervi-
sor 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 pres-
sure register as pain, so they always hurt. And the more I walk
on them the more they hurt.” Earl told the others that periph-
eral 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 pro-
gressive 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 demo-
graphics (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 home-
owner 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
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installed the equipment there. Nielsen learned of Earl’s mis-
take 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 Cali-
fornia Superior Court, alleging age and disability discrimina-
tion 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 discrimi-
nation claim. The court found that Earl had established a
prima facie case of age discrimination but had failed to pro-
duce sufficient evidence to allow a reasonable jury to con-
clude that Nielsen’s proffered nondiscriminatory reason for
her termination was pretextual. The court also granted sum-
mary judgment in favor of Nielsen on Earl’s claims of disabil-
ity 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. Kelley Servs., 488 F.3d 1163, 1166
n.1, 1167 (9th Cir. 2007). We consider whether a genuine dis-
pute of material fact exists and whether the district court cor-
rectly applied the relevant substantive law. Id. at 1167-68.
“[S]ummary judgment should be used prudently in [age dis-
crimination] cases involving motivation and intent.” Coleman
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v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000).
“We require very little evidence to survive summary judg-
ment 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
[1] FEHA prohibits employers from discharging or dis-
missing any employee over 40 years old based on the employ-
ee’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
(2000). In particular, California courts use the familiar
McDonnell Douglas burden-shifting test when analyzing dis-
parate treatment claims under FEHA. Id. (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)).
[2] 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 rea-
son, 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 (2000).
The district court found that Earl established a prima facie
case of age discrimination because (1) she was over age 40
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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 legiti-
mate, nondiscriminatory reason for Earl’s termination by
pointing to her multiple violations of company policy. The
“central dispute” on appeal is whether Earl presented suffi-
cient evidence to raise a triable issue of pretext and thereby
avoid summary judgment. Noyes, 488 F.3d at 1168.
A plaintiff may demonstrate pretext in either of two ways:
(1) directly, by showing that unlawful discrimination more
likely than not motivated the employer; or (2) indirectly, by
showing that the employer’s proffered explanation is unwor-
thy of credence because it is internally inconsistent or other-
wise not believable. Chuang v. Univ. of Cal. Davis, Bd. of
Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000). Earl has not
presented direct evidence of discrimination, such as com-
ments from supervisors betraying bias or animus against older
workers. Instead, she relies on circumstantial evidence to
attack Nielsen’s proffered reason.
Where evidence of pretext is circumstantial, rather than
direct, the plaintiff must produce “specific” and “substantial”
facts to create a triable issue of pretext. Godwin v. Hunt Wes-
son, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). But see Corn-
well v. Electra Cent. Credit Union, 439 F.3d 1018, 1029-31
(9th Cir. 2006) (questioning the continued viability of Godwin
after Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)).
That standard is “tempered” by our observation that a plain-
tiff’s burden to raise a triable issue of pretext is “hardly an
onerous one.” Noyes, 488 F.3d at 1170 (quoting Payne v. Nor-
west Corp., 113 F.3d 1079, 1080 (9th Cir. 1997)).
Earl argues that Nielsen’s explanation for her termination
lacks credibility for four reasons: (1) Nielsen treated younger,
similarly situated employees more favorably; (2) in terminat-
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ing her without first issuing her a PIP, Nielsen deviated from
its normal disciplinary procedure; (3) Nielsen offered shifting
explanations for her termination; and (4) statistical evidence
demonstrated that Nielsen discriminated in its hiring based on
age. We focus on the first two arguments and conclude that
Earl has raised a triable issue of pretext.
1. Similarly Situated Employees
[3] A plaintiff may raise a triable issue of pretext through
comparative evidence that the employer treated younger but
otherwise similarly situated employees more favorably than
the plaintiff. See Vasquez v. Cnty. of Los Angeles, 349 F.3d
634, 641 (9th Cir. 2003); see also McDonnell Douglas, 411
U.S. at 804 (“Especially relevant to [a showing of pretext]
would be evidence that white employees involved in acts
against [the employer] of comparable seriousness . . . were
nevertheless retained or rehired.”). Here, Earl presented evi-
dence that, during the relevant time frame, Nielsen did not ter-
minate — and in one instance may not have even disciplined
— younger “recruiters” in their 30s and 40s when those
recruiters repeatedly violated similar Nielsen policies. Nielsen
has identified the employees by number rather than by name.
Employee 33071 received a DIP in September 2005 for
inadequate maintenance of company assets. In May 2006, she
recruited and signed a home that did not have cable television
and thus did not fall within Nielsen’s required demographics.
Employee 33071 received a second DIP for this violation. In
December 2006, she failed to verify the address of a home she
recruited and either received a PIP or suffered no disciplinary
consequence at all.1 Nielsen did not terminate her. Employee
1A Nielsen official testified in a deposition that employee 33071 did not
receive any discipline for this violation, but a company email indicates she
may have received a PIP. In her brief, Earl states that employee 33071
received the PIP after two additional policy violations that occurred in
March 2008, but Earl’s citation to the record does not clearly establish that
assertion.
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33071 was 37 years old when she violated the address verifi-
cation policy.
Employee 36082 incorrectly collected child demographics
from three separate homes that he recruited and signed
between March and December 2005. Because Nielsen regards
data received from a household with incorrect demographics
as “corrupted,” the company had to remove its monitoring
device from the second home that had been improperly
signed. After this second violation, employee 36082 received
a “final warning” that he would face possible termination if
the company discovered another similar violation. Nielsen
discovered yet another violation two weeks later, the recruit-
er’s third in nine months. Despite the previous warning, Niel-
sen issued the employee a PIP but did not terminate him.
Employee 36082 was 39 years old at the time of the first vio-
lation; he was 40 at the time of the second and third viola-
tions.
Employee 46432 signed a home with the wrong demo-
graphics and entered inaccurate recruitment data into the com-
pany computer system in April 2006, during his first three
weeks on the job. He received a DIP on April 27. On May 12,
the employee’s supervisor Annette Adams asked permission
to terminate him. She reported that employee 46432 had been
repeatedly late to appointments; had claimed overtime by
posting 71 hours during a week when his trainer posted only
40 hours; had “trashed” his company car; and had claimed to
have scheduled an appointment with a head-of-household but
had not done so, with the result that when three Nielsen work-
ers arrived the head-of-household was “livid.” Adams
reported these problems and many others before concluding:
“This is just some of the issues we’ve had. There have been
too many to list.” Bob Burns, the head of Nielsen’s human
resources department, responded the same day: “As much as
it sounds reasonable to terminate him without a PIP, it would
not be consistent with our procedure. My recommendation is
to place him on a Final Warning PIP immediately for all these
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things, and the next time he fails to meet our expectations, ter-
minate him.” Nielsen issued the employee a PIP on May 22.
Weeks later, the employee’s performance had not improved,
despite the PIP. Nielsen terminated him on June 21.
Employee 46432 was 42 years old.
[4] This evidence raises a triable issue of pretext. The com-
pany maintains that it fired Earl for her address verification
mistake and previous history of policy violations. However,
Earl has presented specific and substantial evidence that Niel-
sen did not terminate significantly younger recruiters with
similar histories of multiple policy violations. Viewing the
evidence in the light most favorable to Earl, we conclude that
reasonable jurors could find that Nielsen’s proffered reason is
a pretext for age discrimination.
The district court granted summary judgment despite the
above evidence on the grounds that (a) the other recruiters
were not similarly situated to Earl because they did not com-
mit the same violation, and (b) younger employees over the
age of 40 were within the same protected class as Earl and
thus did not provide appropriate comparisons for purposes of
establishing pretext. We take the two grounds in turn.
a. Similar Violations
[5] Other employees are similarly situated to the plaintiff
when they “have similar jobs and display similar conduct.”
Vasquez, 349 F.3d at 641. The employees need not be identi-
cal, but must be similar in material respects. Hawn v. Exec.
Jet Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir. 2010). Materi-
ality depends on the context and is a question of fact that
“cannot be mechanically resolved.” Id. at 1157-58. The Sev-
enth Circuit has noted that it is “important not to lose sight of
the common-sense aspect” of the similarly situated inquiry.
Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir.
2007). “It is not an unyielding, inflexible requirement that
requires near one-to-one mapping between employees”
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because one can always find distinctions in “performance his-
tories or the nature of the alleged transgressions.” Id.
Earl and all of the employees described above were Nielsen
recruiters and thus had to follow the same policies and proce-
dures. Nielsen officials oversee discipline of recruiters on a
national level in an effort to ensure they are subject to consis-
tent standards. Nielsen relies on case law from other circuits
to argue that only recruiters with the same immediate supervi-
sor should qualify as similarly situated to Earl. However, we
recently held to the contrary. Hawn, 615 F.3d at 1157 (“It was
error for the district court to impose a strict ‘same supervisor’
requirement.”).
[6] Earl and the other recruiters violated similar company
policies. The district court required an exact match between
Earl’s violation and those of the other recruiters. It noted that
Earl recorded an incorrect household address, whereas the
other recruiters signed homes that did not meet Nielsen’s
specified demographics. This distinction between the viola-
tions is immaterial for several reasons.
[7] First, the distinction overlooks the fact that employee
33071 failed to verify the address of a home she recruited in
December 2006, just two months after Earl made the same
mistake. Employee 33071 already had two previous DIPs for
other performance issues. When Earl made her mistake she
had only one DIP. Nielsen terminated Earl for her failure to
verify an address, but employee 33071 either received a PIP
or suffered no disciplinary consequence at all.
[8] Second, Nielsen itself identified the other recruiters’
violations as similar to Earl’s. The company produced evi-
dence of these violations in response to Earl’s discovery
request for information about other recruiters whom the com-
pany disciplined for “violating the same company policies and
procedures.” In complying with the discovery request, Niel-
sen’s human resources manager emailed other officials in
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search of instances where the company disciplined or termi-
nated employees for “signing the wrong household.” Com-
pany officials described the address verification violation by
employee 33071 as “sign[ing] the wrong home.” Nielsen now
argues that “signing the wrong home” by other recruiters is an
inappropriate comparison to “enrolling the wrong household
for equipment installation” by Earl. We fail to see any mate-
rial difference between the two violations.
[9] Third, the relevant Nielsen policies and procedures all
serve the same purpose. Nielsen lists the polices in its written
recruiting procedures. All of them concern the proper collec-
tion and verification of household information in order to
ensure accurate data. Although Nielsen can point to variations
in the violations committed by Earl and the other recruiters,
the violations are more alike than performance issues we have
recognized as similar in other employment discrimination
cases. See, e.g., Nicholson v. Hyannis Air Servs., Inc. 580
F.3d 1116, 1125-26 (9th Cir. 2009) (holding that a female
pilot with poor communication and cooperation skills was
similarly situated to male pilots with deficient technical pilot-
ing skills because the company could address both issues
through retraining).
[10] Fourth, the policy violations at issue are of “compara-
ble seriousness.” See McDonnell Douglas, 411 U.S. at 804;
Vasquez, 349 F.3d at 641 (finding that an employee was not
similarly situated where he “did not engage in problematic
conduct of comparable seriousness” to the plaintiff’s). The
purpose of the address verification policy violated by Earl is
to prevent the collection of corrupted data. However, Nielsen
officials also said they were “very concerned” about the integ-
rity of the data produced by employee 46432 and described
him as presenting “clearly a serious problem.” The company
had to remove the monitoring device at a home signed by
employee 36082 with incorrect demographic information
because of potentially corrupted data. In an internal memoran-
dum sent to another employee, Nielsen wrote, “Removing a
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home from the sample due to a demo-mismatch is a very seri-
ous matter. If this is repeated, disciplinary action up to and
including separation may occur.” Earl’s violation could have
resulted in the collection of corrupted data or required
removal of the monitoring device, but in fact it did not. Earl
has thus presented evidence that the younger recruiters’ policy
violations were at least of “comparable seriousness” to her
own. Indeed, viewed in the light most favorable to her, their
violations were more serious.
[11] Finally, whether the other recruiters are similarly situ-
ated to Earl is a question of fact. Hawn, 615 F.3d at 1158;
Beck v. United Food & Commercial Workers Union Local 99,
506 F.3d 874, 885 n.5 (9th Cir. 2007) (“We agree with our
sister circuits that whether two employees are similarly situ-
ated is ordinarily a question of fact.”). Viewing the evidence
in the light most favorable to Earl, we conclude that Earl has
presented a triable issue that the other recruiters and their vio-
lations are sufficiently similar to hers to merit comparison.
b. Significantly Younger Recruiters
The district court concluded that because employee 36082
turned 40 during the relevant time period, and thus came
within the protected class under FEHA, Nielsen’s failure to
terminate him “refutes rather than supports” Earl’s claim of
age discrimination. Further, Nielsen notes on appeal that
employee 46432 was 42 when he committed the policy viola-
tions and “therefore cannot be a proper comparator as a matter
of law.”
[12] In an age discrimination case, comparison with youn-
ger employees within the protected class is not improper as a
matter of law. Rigid insistence that a comparator be a member
of the protected class overlooks a key difference between age
and other forms of discrimination. Whereas sex and race dis-
crimination rely on an individual’s membership in a particular
class, age discrimination is relative. The proper inquiry is not
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whether the other recruiters are outside the protected class,
but whether they are significantly younger than Earl. As the
Supreme Court explained in O’Connor v. Consolidated Coin
Caterers Corp., the federal Age Discrimination in Employ-
ment Act (ADEA) “does not ban discrimination against
employees because they are aged 40 or older; it bans discrimi-
nation against employees because of their age.” 517 U.S. 308,
312 (1996). The Court wrote, “there can be no greater infer-
ence of age discrimination . . . when a 40-year-old is replaced
by a 39-year-old than when a 56-year-old is replaced by a 40-
year-old.” Id. “[T]he fact that a replacement is substantially
younger than the plaintiff is a far more reliable indicator of
age discrimination than is the fact that the plaintiff was
replaced by someone outside the protected class.” Id. at 313;
see also Begnal v. Canfield & Assocs., Inc., 78 Cal. App. 4th
66, 73 (2000) (citing federal and California cases that a plain-
tiff may establish a prima facie case of age discrimination by
submitting evidence of replacement by a substantially youn-
ger person).
In O’Connor, the Supreme Court addressed age discrimina-
tion at the first step of the McDonnell Douglas framework,
where a prima facie case is at issue, rather than at the third
step, where pretext is at issue. But neither Nielsen nor the dis-
trict court offered any reason why the logic of O’Connor
should not apply with equal force to pretext. Both relied on
a sex discrimination case, Beck v. United Food & Commercial
Workers Union Local 99, 506 F.3d 874, 883 (9th Cir. 2007),
rather than an age discrimination case for their conclusion that
a similarly situated employee must be outside the protected
class for the purposes of pretext.
[13] Earl was 59 years old when she was terminated. She
compares her treatment to other Nielsen recruiters between
the ages of 36 and 42. The district court recognized that Earl’s
temporary replacement by a 42-year-old could establish a
prima facie case of age discrimination because the other
recruiter was “significantly” younger. Applying the same
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logic, Earl can also show evidence of pretext by comparing
her treatment to significantly younger recruiters, even if they
are not within the protected class.
2. Deviation from Company Procedure
[14] A plaintiff may also raise a triable issue of pretext
through evidence that an employer’s deviation from estab-
lished policy or practice worked to her disadvantage. Diaz v.
Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1214 (9th Cir.
2008); see also Johnson v. Lehman, 679 F.2d 918, 922 (D.C.
Cir. 1982) (finding employer’s departure from internal proce-
dures probative evidence of pretext). Earl was terminated
after receiving a single DIP. She never received a PIP, a much
more serious warning. Earl has presented evidence that in ter-
minating 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.
Nielsen contends that the Burns email does not correctly
recite company policy. It points to its written disciplinary pol-
icy which does not refer to PIPs, describes its employees as
“at will,” and expressly states that the company may acceler-
ate the disciplinary process “up to and including termination
in any case.” Human Resources Manager Jim Sowatzke testi-
fied in a deposition that although Burns’s interpretation of
company policy would be “definitive” he did not understand
Burns’s email to be stating a matter of policy. However,
Sowatzke also testified that a PIP is part of the company’s
formal disciplinary process.
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[15] In a later email to another Nielsen official, Burns
explained that he recommended a pre-termination PIP for
employee 46432 so the company “can demonstrate that we
treated him no differently than we have anyone else.” Burns
said he “assumed that [employee 46432] is a protected class
individual, and so consistency is of utmost importance.” Earl
has raised a triable issue why consistency was not of similar
importance when Nielsen terminated her — another “pro-
tected class” employee — seven months later. Viewing this
evidence in the light most favorable to Earl, we conclude that
Earl has raised a genuine dispute whether issuing a PIP prior
to a termination constitutes an internal company practice or
procedure.
[16] Even if issuance of a pre-termination PIP was not
Nielsen’s formal policy, the above evidence is also relevant
to show that Nielsen applied a more forgiving disciplinary
process for younger recruiters who were similarly situated to
Earl. We note, in particular, employee 46432 who “failed to
meet virtually every aspect of his job requirements” during
his first several weeks as a recruiter, but whom Nielsen
refused to terminate without first issuing a PIP. A few months
after employee 46432 was terminated, Nielsen terminated
Earl even though she had been issued only one DIP in her
more than a dozen years with the company and had never
received a PIP. We conclude that the more lenient disciplinary
process Nielsen used for younger recruiters thus raises a tri-
able issue of pretext, regardless of the company’s formal pol-
icy or practice.
B. Disability Discrimination
Earl did not present any disability discrimination arguments
in either her opening or reply brief and has waived any appeal
of the district court’s decision on that claim. Dream Games of
Arizona, Inc. v. PC Onsite, 561 F.3d 983, 994-95 (9th Cir.
2009); Indep. Towers of Washington v. Washington, 350 F.3d
925, 929 (9th Cir. 2003) (“Particularly on appeal, we have
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held firm against considering arguments that are not
briefed.”). We therefore affirm the district court’s grant of
summary judgment on Earl’s disability discrimination claim.
C. Wrongful Termination
[17] Because Earl’s age discrimination claim under FEHA
survives summary judgment, so too does her claim for wrong-
ful termination in violation of public policy. See Stevenson v.
Superior Court, 16 Cal. 4th 880, 897 (1997).
Conclusion
We agree with the district court that Earl’s multiple viola-
tions of company policy could constitute a legitimate reason
for terminating her employment. However, Earl has provided
specific and substantial evidence that significantly younger
recruiters who repeatedly violated similar policies received
more lenient treatment from the company. She has thereby
raised a triable issue that Nielsen’s proffered reason was pre-
text for age discrimination.
We REVERSE the district court’s grant of summary judg-
ment against Earl’s age discrimination and wrongful termina-
tion claims, AFFIRM the grant of summary judgment against
her disability discrimination claim, and REMAND for further
proceedings consistent with this opinion.
REVERSED in part, AFFIRMED in part, and
REMANDED.
18378 EARL v. NIELSEN MEDIA RESEARCH

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