DISCRIMINATION (CALIFORNIA)–Discrimination Claims: Importance of Consistent Action by Employers – (or what happens when a DIP is not followed by a PIP)

In a recent case the Ninth Circuit reversed the district court’s grant of summary judgment in favor of the employer in an age discrimination case because the employee showed that significantly younger employees were treated differently by the employer.

Following a number of violations of company policy, and after having been put on a Developmental Improvement Plan (“DIP”) [an informal counseling which did not constitute disciplinary action], a 59-year-old employee (“Earl”) was terminated when she again violated a similar company policy. The employee sued the employer, Nielsen Media Research, Inc. (“Nielsen”) for violation of the California Fair Employment and Housing Act by discriminating against her on the basis of age. The trial court found that Nielsen established a legitimate, nondiscriminatory reason for the termination; that Earl did not show sufficient evidence that the reason was a pretext for discrimination; and dismissed the case. In its review the Ninth Circuit found that there was a triable issue of fact as to whether or not the employer’s stated reason for the termination was actually a pretext. The court noted that pretext can be found when there is a showing that the explanation offered by the employer is not credible because it is internally inconsistent or otherwise not believable.

In this case Earl showed that other younger employees who had violated similar company policies were not terminated even if they had received a DIP; that the younger employees were either given a Performance Improvement Plan (“PIP”) [a formal disciplinary action] following multiple violations of policy or were terminated, but only after having received a PIP.

It is also important to note that at least two of the “younger employees” were 40 or older. Even though these employees were themselves in the protected class (age) since they were significantly younger than the plaintiff the court ruled that this could constitute age discrimination.

What this means for you

Employers must be diligent in applying their internal policies on a consistent basis. Whenever a plaintiff can show this was not the case the employer runs the risk that the employer’s reason for the action was a pretext. If employees are treated differently the employer must be able to show that there was a logical, credible reason for the inconsistency – e.g., the violation in one case was significantly different or more egregious; or the positions the employees held were significantly different and subject to different standards.

Also, with regard to age discrimination, don‘t assume that because someone 40 or over is replaced by, or treated the same as someone who is also 40 or over that no claim can be made. As noted in the case above, the relative ages of the individuals may be an important factor.

Regularly reviewing your disciplinary actions for consistency can be extremely helpful. If you would like assistance with this, please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or jflaherty@gmklaw.com.