Plaintiff worked as a recruiter for Nielsen, which measures ?television? program ?audiences ?and provides ?the ?results ?to? advertisers ?and ?media outlets.???? ?The?? Plaintiff?? alleged? ?that? ?she?? was subjected?? to ?age ?and? ?disability ?discrimination under?? the?? California? ?Fair?? Employment? ?and Housing Act (FEHA), and wrongful discharge in violation of public policy.?? Plaintiff argued, inter alia, that she was treated differently than comparable employees who were substantially younger, and because the defendant deviated from established policy and practice regarding progressive discipline. ?The District Court granted summary judgment on the grounds that she had not produced ?sufficient ?evidence ?of ?pretext.?? ?The Plaintiff appealed and the Ninth Circuit reversed.
Applying California law, the Court followed the McDonnell Douglas shifting burden model. ?The Court also relied upon Ninth Circuit law in ruling that pretext may be established by showing that the employer?s proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable.??? ?The Court also acknowledged that the standard for raising a triable issue on the subject of pretext is ?hardly an onerous one.?
Relying on federal law, the Ninth Circuit expounded upon the degree to which employees must be similarly situated.?? In that regard, the Court ruled that other employees are similarly situated to the plaintiff when they ?have similar jobs and display similar conduct.??? ?The employees need not be identical, but must be similar in material respects. ?Materiality depends on the context and is a question of fact that ?cannot be mechanically resolved.??? ?It is ?important not to lose sight of the common-sense aspect? of the similarly situated inquiry. ?It is not an ?unyielding, ?inflexible? requirement ?that requires near one-to-one mapping between employees? because one can always find distinctions ?in ??performance? histories ?or ?the nature of the alleged transgressions.? ?Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir.2007).
The Court also ruled that a comparison with younger employees within the protected class is not improper as a matter of law.?? The proper inquiry is not whether the other employees are outside the protected class, but whether they are significantly younger than Plaintiff.
The Ninth Circuit also found pretext through evidence that an employer?s deviation from established policy or practice worked to her disadvantage.?Earl v. Nielsen Media Research, Inc., 658 F.3d 1108 (9th Cir. 2011), (W. Fletcher, Hug, Reavley (5th Cir.)).