The Ninth Circuit recently reversed a summary judgment order issued in favor of the employer where during a promotional process, management had stated a preference to hire “younger, less experienced agents.” France v. Johnson, Dep’t of Homeland Security, __ F.3d __, 2015 WL 4604730 (9th Cir. 2015).
Fifty-four year old France applied for a new pilot program of operations agents that would receive a higher pay grade than the administrative agents. Four operations positions were created as a result of the pilot program and twenty-four eligible candidates applied. The applicants' ages ranged from 38 to 54 years.
The selection process consisted of ranking the applicants by their scores from a standardized agency test. Assistant Chief Patrol Agent (“ACPA”) Gilbert then invited twelve candidates for interviews in Washington, D.C. The panel of interviewers consisted of Chief Patrol Agent Gilbert and two other ACPAs. After the interviews, the panel selected six top-ranked candidates. Gilbert recommended four of the six to Chief Border Patrol Agent, who in turn recommended the same four candidates to the decision-maker -- the Deputy Commissioner.
France was the oldest agent to apply for the new program, and was rejected in favor of the four selected applicants who were 44, 45, 47, and 48 years old. France claimed that ACPA Gilbert had repeatedly approached him about taking retirement prior to this application process. Another agent testified that Gilbert had stated his preference to promote “young dynamic agents” to staff the new operations program.
Under the Age Discrimination in Employment Act (ADEA), this evidence alone was sufficient to overcome summary judgment and establish a prima facie case of discrimination for trial. The ADEA makes it unlawful for an employer to discriminate “because of [an] individual's age.” In reversing the district court’s order, the Ninth Circuit emphasized as follows:
When a plaintiff opposing summary judgment presents direct evidence of a discriminatory motive, we do not assess the direct evidence in the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
The court then underscored its view that the above-described evidence provided both direct evidence and circumstantial evidence of discriminatory intent such that the traditional burden-shifting analysis was conducted.
The court concluded that France had established that he was (1) at least forty years old, (2) qualified for the position for which an application was submitted, (3) denied the position, and (4) the promotion was given to a substantially younger person. In so doing, the court adopted the Seven Circuit’s test for “substantially younger person:”
The Seventh Circuit has held that an age difference of less than ten years creates a rebuttable presumption that the age difference is insubstantial. Hartley v. Wisc. Bell, 124 F.3d 887, 893 (7th Cir.1997).
According to the Ninth Circuit, France’s evidence rebutted this presumption and demonstrated a prima facie case that his age was a significant factor in the promotional process. In response to France’s evidence, the agency provided legitimate nondiscriminatory reasons for not promoting France that were related to his qualifications to lead. Overall, the court concluded that the evidence presented by France was sufficient to demonstrate an issue regarding whether the agency’s reasons were pretext for discrimination such that a trial on the merits was required.
The court found significant that ACPA Gilbert created the new program for operations agents, had expressed a desire to promote young agents, was involved in the promotional process, had recommend the four finalists to the Chief, and had approached France about retiring. Such evidence was sufficient to demonstrate a genuine issue of material fact as to whether the agency’s stated nondiscriminatory rationale was pretext for discrimination. Even though Gilbert was not the final decision-maker, his alleged discriminatory motive was enough to defeat the agency’s motion for summary judgment.
Employers are reminded to keep discussions of an employee’s age out of the workplace. In promotional situations, the France case serves as a reminder that the comments of employees involved in the process – especially influential management employees – can create ADEA liability for the employer. The France court emphasized in its analysis that a case will likely head for a trial on the merits if there is either direct or circumstantial evidence that an applicant’s age was a significant factor to the employer during the promotional process. Even an age differential of less than ten years can provide probative evidence to establish a prima facie case of discrimination.