Ninth Circuit Adopts “Rebuttable Presumption” Approach in Age Discrimination Cases


In France v. Johnson, a failure to promote case brought under the Age Discrimination in Employment Act (ADEA), the U.S. Court of Appeals for the Ninth Circuit held that where the age difference between the plaintiff and the successful candidate was less than ten years, the employer enjoys a rebuttable presumption that the age difference was insubstantial and, therefore, not evidence of age discrimination.

John France worked as a border control agent for the Tucson Sector of Border Patrol, an agency within the US Department of Homeland Security (DHS). In 2008, when France was 54 years old, he applied for a promotion to Assistant Chief Patrol Agent.  France was the oldest applicant. While France was interviewed for the promotion, he was not selected. Instead, four applicants ranging in age from 44 to 48 were promoted.

France sued the DHS in federal district court, alleging that the decision not to promote him was age discrimination in violation of the ADEA. After discovery, DHS moved for summary judgment and offered nondiscriminatory reasons for not promoting France.  The agency said that France lacked the leadership and judgment for the position, and lacked flexibility and innovation.  In opposition to the agency’s motion, France produced evidence that the agency’s nondiscriminatory reasons were pretexts for discrimination.  He claimed that during a staff meeting, one of the decision makers, Tucson Sector Chief Patrol Agent Robert Gilbert, had expressed his preference for “young, dynamic agents” to fill the position in question.  France also claimed that, over a period of several months before his promotion interview, Gilbert repeatedly initiated retirement discussions with France, in spite of France’s clear indications that he did not want to retire.  According to France, Gilbert asked France if he was interested in teaching firearms as a “rehired annuitant” after retirement, and told France that if he were in France’s position he would retire as soon as possible. The district court granted DHS’s motion for summary judgment, finding that although France established a prima facie case of age discrimination, he failed to raise a genuine issue of material fact that cast any doubt on DHS’s non-discriminatory reason for not promoting him. France appealed.

On appeal, the Ninth Circuit first observed that Gilbert’s remarks about preferring “young, dynamic agents” were more than a “stray comment.”   The remarks were direct evidence of discriminatory animus.  Nonetheless, this evidence alone was too thin to support a finding of discrimination.  As a consequence, France’s case was largely a circumstantial one.  Thus the appropriate analytical framework for considering the propriety of summary judgment was the McDonnell Douglas framework.  Under this framework, a plaintiff must carry the initial burden to establish a prima facie case that creates an inference of discrimination.  If the employee establishes a prima face case, an inference of discrimination arises and the burden shifts to the employer to produce a legitimate, nondiscriminatory reason for its employment action.  If the employer does so, the burden shifts back to the employee to prove that the employer’s explanation is a pretext for discrimination.

In a failure-to-promote case, a plaintiff establishes a prima facie case by producing evidence that he or she was (1) at least 40 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. The DHS conceded that France had satisfied the first three prongs of the prima facie case.  As to the fourth prong, the Court observed that in a majority of circuits, courts have held that an age difference of less than ten years between the plaintiff and the successful candidate is not a substantial age difference.  Such an age difference, without more evidence, is insufficient to create a prima facie case of age discrimination to begin with.  Rather than taking this approach, however, the Ninth Circuit instead adopted the Seventh Circuit Court of Appeal’s position that such an age difference (of less than ten years) creates a rebuttable presumption that the age difference is insubstantial. The analysis did not end there, however.  France could rebut that presumption by producing either direct or circumstantial evidence to show that DHS considered his age to be a significant factor.

Weighing the evidence presented, the Ninth Circuit found that France had succeeded in rebutting the presumption and proving that age was significant in the promotion decision, by providing evidence that Chief Patrol Agent Gilbert had expressed a preference for younger agents and repeatedly urged France to retire, in spite of his resistance.  The Court therefore reversed the summary judgment ruling in favor of DHS, and allowed the case to proceed to trial.

This decision demonstrates how important it is for employers to train managers and supervisors about the legal impact of what they say and do in the workplace.  Managers and supervisors must understand that when they are making employment decisions about employees, everything they say will later be subject to scrutiny.  In today’s workplace, you cannot be too careful.

Contributor:  Vida L. Thomas, Attorney at Law | Weintraub Tobin