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Earl v. VNU USA

September 28, 2009


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This employment discrimination case, in which plaintiff Christine Earl ("plaintiff" or "Earl") alleges age and disability discrimination, is before the court on defendants' motion for summary judgment, or alternatively, summary adjudication of claims pursuant to Federal Rule of Civil Procedure 56. Plaintiff does not oppose defendant Nielsen Company (US) Inc.'s motion. (Stmt. of Non-Opp'n [Docket #114], filed July 30, 2009.) Accordingly, defendant Nielsen Company (US) Inc.'s motion for summary judgment is GRANTED. However, plaintiff opposes the motion brought by defendant Nielsen Media Research, Inc. ("defendant" or "Nielsen"). The court heard oral argument on the motion on September 4, 2009. For the reasons set forth below, defendant Nielsen Media Research, Inc.'s motion is GRANTED.


Plaintiff Earl was employed by defendant Nielsen as a Membership Representative ("MR") in San Francisco LPM Market Area in Benicia, California. (UF ¶ 1.) Plaintiff was hired by Nielsen on July 1, 1994 as an "at-will" employee. (UF ¶¶ 2, 6.) Plaintiff's date of birth is June 7, 1947; she was approximately 47 years old when hired by defendant. (UF ¶ 3; DF ¶ 1.)

In its policies and procedures guide, defendant Nielsen describes itself as "the world's leading provider of marketing information, audience measurement, and business media products and services." (Def.'s Ex. G.) Defendant represents that it "strives to provide statistically clean and accurate samples, which is achieved through special attention on gaining membership from Basic households." (Def.'s Ex. J.) An MR is provided with a list of homes, a "Spec report," the first of which is called the "basic." (DF ¶ 22.) The basic home has been identified as representing a certain desirable demographic. (DF ¶ 22.) If the basic home cannot be recruited, the MR is required to work down the list of alternates until finding a home whose demographics match those of the basic. (DF ¶ 22.)

At all relevant times, defendant had a performance improvement discipline policy entitled "Disciplinary Action/Performance Counseling." (UF ¶ 7; Def.'s Ex. I at 17.) Based upon the situation, an employee may receive either verbal notification and/or a written or final notification. (UF ¶ 7; Def.'s Ex. I at 17.) However, the policy also provides that "management may eliminate steps in this process and accelerate the process up to and including termination in any case." (Def.'s Ex. I at 17.) Moreover, the policy provides that it does not negate the "'at-will' nature of employment." (Id.)

During plaintiff's employment, defendant also had various policies relating to the duties of Membership Representatives. If a MR purchased a gift for a household, the MR was required to follow defendant's current gift policies. (UF ¶ 8.) Following September 11, 2001, defendant initiated a policy forbidding MRs from leaving unattended gifts at the doorsteps of potential households. (UF ¶ 9.) Plaintiff understood that she was obligated to comply with this policy. (UF ¶ 10.) However, in August 2005, plaintiff left an unattended gift at the doorstep of a potential household; she received a verbal warning from her supervisor. (UF ¶¶ 11-12.) Following this violation, defendant sent an e-mail to all MRs company-wide on August 21, 2005, reiterating the Company's policy against leaving unattended gifts at the doorsteps of potential households. (Decl. of Sally Dollard ("Dollard Decl."), filed July 10, 2009, ¶ 3.) On January 29, 2006, plaintiff left a box of candy at the doorstep of an unoccupied home she was attempting to recruit. (UF ¶ 13.)

Pursuant to company policy, it is "recommended before the initial contact" with a potential household that the MR print out a Spec report and obtain a Stat Research map. (Pl.'s Ex. E.) The company procedure manual notes that "Stat Research will not offer any assistance in locating a housing unit without having a printed Spec map." (Id.) Plaintiff testified at her deposition that she was required to have the Spec map with her. (Dep. of Christine Earl ("Earl Dep.") at 184:7-13.) Plaintiff also testified that she understood a MR could be fired for failing to have a Spec map in the car. (Id. at 223:3-7; UF ¶ 17.) However, in February 2006, while on a temporary assignment in New York, plaintiff recruited a home without a Spec map. (UF ¶ 16.) When a supervisor e-mailed plaintiff inquiring how she had signed a "spec" without the Spec map, plaintiff responded, "Magic?" (Pl.'s Ex. F.)

After plaintiff committed these policy violations, plaintiff's direct supervisor, Sally Dollard ("Dollard"), issued a verbal warning and documented her counseling session with plaintiff in the form of a Developmental Improvement Plan ("DIP"). (UF ¶ 18.) According to the DIP, Dollard counseled plaintiff on her violation of defendant's gift policy and Spec map policy. (UF ¶ 19.) Dollard also expressed displeasure with plaintiff's attitude, noting plaintiff's response to a supervisor's question was not only "inappropriate for a business question from a supervisor but it also demonstrated a lack of respect for the policy and procedure set forth by Nielson Media Research." (UF ¶ 19.). Moreover, according to the DIP, plaintiff failed a Quality Assurance ("QA") audit for failing to train a recruit sufficiently. (UF ¶ 20.) The DIP also stated, "Your performance WILL BE REVIEWED PERIODICALLY to determine if you are meeting stated expectations in the job. Failure TO MEET THESE EXPECTATIONS in the future MAY RESULT IN the implementation of the DISCIPLINARY PROCESS." (UF ¶ 21.) Plaintiff signed and acknowledged the DIP on March 27, 2006. (UF ¶ 22.)

In September/October 2006, plaintiff received an overall satisfactory performance evaluation. (DF ¶ 32; Pl.'s Ex. J.) However, the evaluation noted that plaintiff needed improvement in: (1) entering contract notes within 24 hours; (2) submitting expense books accurately; and (3) ensuring that she always follows policy and procedure. (Id.)

Subsequently, plaintiff committed another violation of defendant's policies and procedures. (See UF ¶ 28.) Company policy requires MRs to verify that the housing unit and address are correct when recruiting a household. (UF ¶ 23.) MRs are responsible for initially inputting all of the household data correctly. (UF ¶ 24.) All signed households must have a completed Panel Agreement. A Panel Agreement contains the household name, household number and Spec ID, complete household address verified from the Spec Report, zip code, and household member's signature and Field Associate's signature. (UF ¶ 25.) According to defendant's Sample Procedures Documentation, "[e]xtreme attention to detail is required in order to accurately complete a Panel Agreement with all areas completed with the correct information." (UF ¶ 26.) On October 28, 2006, while working on a temporary assignment in Texas, plaintiff recruited an Alternate household located at 319 Forest Lake Drive, which was listed as "Alternate 11." However, when plaintiff filled out the Initial Demo Questionnaire and Panel Agreement and inputted the household information into the company's computer software, she inaccurately listed the recruited home as 327 Forest Lake Drive, which was listed as "Alternate 9." (UF ¶ 27.) As a result of these errors, plaintiff had enrolled the wrong household for equipment installation.*fn2 (UF ¶ 27.) When Dollard spoke to plaintiff about the situation, Dollard believed that plaintiff was not serious about what had happened and treated the violation as it was "no big deal." (Dep. of Sally Dollard ("Dollard Dep.") at 70:10-23.)

Plaintiff was terminated from employment with defendant on January 6, 2007, when she was approximately 59 years old. Dollard provided information about plaintiff's performance, but Lisa Lalama and Jim Sowatzke made the decision to terminate plaintiff's employment. (DF ¶ 36.) Defendant asserts plaintiff was terminated because she violated the "Recruiting the Basic" policy when she enrolled the wrong household for equipment installation and because she previously violated policies and procedures as documented in the DIP. Plaintiff asserts she was terminated on account of her age and disability.*fn3

During the course of her employment with defendant, plaintiff told Dollard that her "feet hurt" because she had peripheral neuropathy. (UF ¶ 31.) When Dollard asked plaintiff about her feet, plaintiff replied that she was fine. (UF ¶ 31.) Plaintiff never requested an accommodation for her peripheral neuropathy or any other medical condition related to her feet. (UF ¶ 32.) Plaintiff did not discuss her condition with any other supervisors during her employment. (UF ¶ 33.) Plaintiff testified that she had no reason to believe that any of the people involved in the meeting regarding her termination had some sort of animus against her because of her medical condition. (Earl Dep. at 149:17-21.)

After plaintiff's termination, plaintiff's territory was reassigned to a forty-two year old MR. (UF ¶ 35.) In the months just before and after plaintiff's termination, defendant hired five MRs, three in their twenties and two in their early thirties, for the territory in which plaintiff worked. (DF ¶ 47.)

On October 11, 2007, plaintiff filed her complaint in the Superior Court of the State of California in and for the County of Solano, alleging claims for (1) Age Discrimination in Violation of the Fair Employment and Housing Act ("FEHA"); (2) Disability Discrimination in Violation of the FEHA; and (3) wrongful termination in violation of public policy. On ...

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