France v. Johnson, 795 F.3d. 1170 (9th Cir. 2015)

The Court held that evidence of non-discriminating supervisor’s preferences for promoting younger employees was sufficient showing of pretext in failure to promote claim under ADEA.

Factual Background

Plaintiff a border patrol agent for Defendant U.S. Department of Homeland Security, brought a claim for age discrimination under the federal Age Discrimination in Employment Act (“ADEA”) alleging that he was not selected to fill one of four newly created promotion positions because of his age. At age 54, plaintiff was the oldest of 24 applicants eligible for the promotions where the applicants were selected were ages 44,45,47 and 48.

The agency moved for summary judgement citing six legitimate, nondiscriminatory reasons why it did not promote plaintiff. As a proof of pretext, plaintiff asserted in his opposition that: 1) that a supervisor serving on the initial interview panel had stated his preference for young dynamic agents for the positions; 2) that the same supervisor had, on several occasions discussed plaintiff’s retirement with him; 3) the opinion of two coworkers that a second interviewer also had a preference for younger, less experienced agents. The federal district court granted summary judgement for defendant, holding that Plaintiff’s proffered evidence was insufficient to rebut Defendant’s legitimate nondiscriminatory reasons for not promoting Plaintiff because the supervisor had a limited role in the final hiring decisions.

The Court of Appeals

The Court of Appeals for the Ninth Circuit reversed holding that Plaintiff’s evidence of pretext raised a triable issue of fact. Because Plaintiff presented both direct and circumstantial evidence of discrimination, the McDonnell Douglass burden shifting framework applied in the following way.

First, the Court determined that Plaintiff had established a prima facie case of age discrimination because although the average eight-year age difference of the selected applicants was presumptively insubstantial and Plaintiff’s evidence of the interviewer’s preference for younger applicants was sufficient to rebut the presumption.

Second the Court of Appeals determined that the district court erred in concluding that the supervisor’s statements were insufficient evidence of pretext. The Court reasoned that in asserting such claims, a Plaintiff need not show that the final decision maker had discriminatory animus if he can show that a biased subordinate had influence over or was involved in the decision making process. Here the Court found there was sufficient evidence that the supervisor had both substantial influence and involvement in the promoted decision, where the individual created the positions, the other interviewers deferred to his opinions and the four candidates recommended were selected by the panel leader.

Employment based claims involving a large employer requires a law firm that is experienced, competent, and knowledgeable concerning the complexities of employment based classifications including bona-fide occupational qualifications (BFOQ). If you have any employment-related dispute and are considering suing your employer for discriminatory conduct contact the Orange County Employment Lawyers at Nassiri Law Group, practicing in Orange County, Riverside, and Los Angeles. Call (949) 375-4734.