Why it matters

The Ninth Circuit Court of Appeals adopted a rebuttable presumption that an age difference of ten years or more is substantial in an Age Discrimination in Employment Act (ADEA) lawsuit, with a difference of less than ten years presumptively insubstantial. The case involved a 54-year-old border patrol agent who was interviewed for a new position but was not selected for the final round of consideration; the finalists ranged in age from 44 to 48 years old. The agent sued under the ADEA and a federal court judge granted summary judgment for the federal agency. On appeal, the Ninth Circuit followed case law from other federal appellate courts to adopt the ten-year age difference presumption. Applying it to the case, the panel said that although the age difference between the plaintiff and the finalists was presumptively insubstantial, he also produced evidence that a supervisor expressed a preference for promoting younger agents and that he was repeatedly questioned about his retirement plans, establishing a prima facie case of discrimination. The court reversed and remanded. Employers in the Ninth Circuit should take note of the new presumption regarding age difference in ADEA cases.

Detailed discussion

A border patrol agent for the Department of Homeland Security, John France was assigned to the Tucson Sector in Arizona. In March 2007, a pilot program was established in the sector that divided agents into two categories. Those in administration would keep their current pay grade of GS-14 while the agents assigned to operations would receive a promotion to GS-15.

Twenty-four eligible candidates applied for the four new GS-15 positions created by the program, including France. The ages of the applicants ranged from 38 to 54 years, with France the oldest at age 54. The candidates were ranked based on their scores on an assessment and the top 12 were invited for interviews with three chief patrol agents (CPA), including the Tucson Sector CPA who was in charge of the program.

After the interviews, six candidates were named for final consideration. France was not one of the finalists. The final four agents selected for the new positions were aged 44, 45, 47, and 48 years old. France sued the agency, alleging that the decision not to promote him constituted age discrimination in violation of the Age Discrimination in Employment Act (ADEA).

The border patrol moved for summary judgment, offering nondiscriminatory reasons for not promoting France including a lack of leadership and judgment necessary for the GS-15 position. France countered that in a staff meeting the Tucson Sector CPA expressed his preference for "young, dynamic agents" to fill the new positions and that the CPA had repeated discussions about retirement with him, even though France had made clear he had no plans to retire.

A district court judge granted the motion for summary judgment and France appealed.

The Ninth Circuit Court of Appeals first adopted a new rebuttable presumption for ADEA cases found in both the Sixth and Seventh U.S. Circuit Courts of Appeal.

"We hold that an average age difference of ten years or more between the plaintiff and the replacements will be presumptively substantial, whereas an age difference of less than ten years will be presumptively insubstantial," the court wrote.

Applying the standard, the average age difference between France and those selected for the GS-15 positions was eight years, presumptively insubstantial. "But our analysis does not end there," the panel noted. "A plaintiff who is not ten years or more older than his or her replacements can rebut the presumption by producing additional evidence to show that the employer considered his or her age to be significant. The plaintiff can produce either direct or circumstantial evidence to show that the employer considered age to be a significant factor."

Although the border patrol articulated legitimate, nondiscriminatory reasons for not selecting France, he provided both direct and circumstantial evidence that age was a significant factor in the hiring process that was sufficient to withstand a motion for summary judgment, the court said. In addition, the panel applied the "cat's paw" theory to the Tucson Sector CPA to find that he was involved in and influenced the hiring decisions. (This theory holds that an employer can be liable for discrimination or retaliation if the employer acts innocently but based on input from a biased employee.)

He created the GS-15 positions in the first place, the court said, the other interviewers deferred to him because he would be supervising the new positions, and he recommended the four finalists, with the other two interviewers deferring to his suggestion, recommending the same individuals. A genuine issue of material fact existed as to whether the Tucson Sector CPA—"a subordinate employee with a discriminatory animus"—influenced or was involved in the hiring decisions, despite the fact he was not the final decision maker, the panel said.

The Tucson Sector CPA reportedly expressed his preference for "young, dynamic agents" and repeatedly pressed France about his retirement plans, the court added. "The timing of the retirement discussions is significant," the court explained, because the conversations occurred just prior to the posting of the GS-15 positions. "The close proximity in time could allow a reasonable jury to find by a preponderance of the evidence that France's non-selection based on grounds other than age was pretextual," the panel wrote.

Calling it a "close question," the court reversed summary judgment in favor of the employer and remanded.

"In the total circumstances presented opposing summary judgment, we conclude that France, although less than ten years older than his replacements, has established a prima facie case of age discrimination by showing that the agency considered age in general to be significant in making its promotion decisions, and that [the Tucson Sector CPA] considered France's age specifically to be pertinent in considering France's promotion," the court said.

To read the opinion in France v. Johnson, click here.