Average Age Difference of Less Than Ten Years Is Presumptively Insubstantial under the ADA: Ninth Circuit | Practical Law

Average Age Difference of Less Than Ten Years Is Presumptively Insubstantial under the ADA: Ninth Circuit | Practical Law

In France v. Johnson, the US Court of Appeals for the Ninth Circuit held that an average age difference of less than ten years between an Age Discrimination in Employment Act (ADEA) plaintiff and the plaintiff's replacements creates a rebuttable presumption that the age difference was insubstantial. The Ninth Circuit adopted the Seventh Circuit's approach but found that a 54-year old US Department of Homeland Security (DHS) border patrol agent who was not promoted while four candidates ranging in age from 44 to 48 were promoted nevertheless rebutted the presumption and established a prima facie case of age discrimination.

Average Age Difference of Less Than Ten Years Is Presumptively Insubstantial under the ADA: Ninth Circuit

by Practical Law Labor & Employment
Published on 11 Aug 2015 • USA (National/Federal)
In France v. Johnson, the US Court of Appeals for the Ninth Circuit held that an average age difference of less than ten years between an Age Discrimination in Employment Act (ADEA) plaintiff and the plaintiff's replacements creates a rebuttable presumption that the age difference was insubstantial. The Ninth Circuit adopted the Seventh Circuit's approach but found that a 54-year old US Department of Homeland Security (DHS) border patrol agent who was not promoted while four candidates ranging in age from 44 to 48 were promoted nevertheless rebutted the presumption and established a prima facie case of age discrimination.
On August 3, 2015, in France v. Johnson, the US Court of Appeals for the Ninth Circuit held that an average age difference of less than ten years between an ADEA plaintiff and the plaintiff's replacements creates a rebuttable presumption that the age difference was insubstantial for purposes of establishing a prima facie case, and that an average age difference of ten years or more is presumed substantial. The Ninth Circuit adopted the Seventh Circuit's approach but found that a 54-year old DHS border patrol agent who was not promoted while four candidates ranging in age from 44 to 48 were promoted nevertheless rebutted the presumption and established a prima facie case of age discrimination. The court also reversed a district court's grant of summary judgment to DHS, finding that genuine issue of material fact remained about a Chief Patrol Agent's role in the promotion decision. The Chief Patrol Agent had expressed his preference for younger agents and had repeatedly discussed retirement with the plaintiff despite plaintiff's clear indication that he did not want to retire. (No. 13-15534, (9th Cir. Aug. 3, 2015).)

Background

John France worked as a border control agent for the Tucson Sector of Border Patrol, an agency within DHS. In 2008, when France was 54 years old and at a GS-14 pay grade, France applied for an Assistant Chief Patrol Agent (ACPA) position with a pay grade of GS-15. France was the oldest applicant and was interviewed for the position by a panel consisting of three Chief Patrol Agents, including Robert Gilbert, the Tucson Sector Chief Patrol Agent. The panel initially selected six applicants for final consideration. France was not selected. Ultimately four applicants ranging in age from 44 to 48 received the promotion.
In 2010, France sued DHS in US district court, claiming that the decision not to promote him to the ACPA operations position violated the ADEA. 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 on DHS's non-discriminatory reason for not promoting him. France appealed.

Outcome

The Ninth Circuit:
  • Reversed the district court's grant of summary judgment to DHS and remanded to the district court.
  • Held that to satisfy the fourth prong of a prima facie case of age discrimination in a failure-to-promote case by showing that the promotion was given to someone substantially younger than the plaintiff:
    • an average age difference of less than ten years between the plaintiff and the plaintiff's replacements creates a rebuttable presumption that the age difference was insubstantial; and
    • the plaintiff can rebut the presumption by producing evidence that the employer considered age to be significant.
  • Found that France:
    • overcame the rebuttable presumption with evidence that the decision not to promote him involved consideration of age;
    • established a prima facie case of age discrimination; and
    • created a genuine issue of material fact that DHS's non-discriminatory reasons for not promoting him were pretextual.
The Ninth Circuit noted that:
The Ninth Circuit adopted the Seventh Circuit's rebuttable presumption approach and found that:
  • Although the average age difference between France and the four individuals who were selected for promotion was less than 10 years, France overcame the presumption that the age difference was insubstantial and established a prima facie case of age discrimination by producing evidence that DHS considered France's age, including evidence that:
    • Chief Patrol Agent Gilbert expressed a preference for younger border patrol agents;
    • other agents were aware of Gilbert's preference for younger border patrol agents; and
    • Gilbert repeatedly discussed retirement with France and urged him to retire even though France made it clear that he did not want to retire.
  • DHS articulated legitimate, non-discriminatory reasons for not promoting France, putting the burden on France to raise a genuine issue of material fact that DHS's legitimate, non-discriminatory reasons were pretextual (Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994)).
  • France's direct evidence that DHS was more likely than not motivated by discrimination was not itself sufficient to create a genuine issue of material fact, but France also had circumstantial evidence to be considered along with direct evidence (Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)).
  • Gilbert's discriminatory statements about preferring younger agents created a genuine issue of material fact on the pretext issue.
  • The district court erred by:
    • relying on the fact that Gilbert was not the final decisionmaker in the promotion process;
    • concluding Gilbert had a limited role in the promotion decisions; and
    • disregarding the repeated retirement discussions Gilbert had with France, and that those discussions occurred only months before the promotion process and decisions.
  • Gilbert had significant influence and involvement in the promotion decisions because:
    • he created the GS-15 positions for which France applied;
    • other interviewers deferred to Gilbert because he would be supervising the promoted ACPAs; and
    • he recommended the four individuals who were ultimately promoted.

Practical Implications

The Ninth Circuit's decision in France establishes that an average age difference of less than 10 years between an ADEA plaintiff and the plaintiff's replacements creates a rebuttable presumption that age was insubstantial for purposes of the plaintiff establishing a prima facie case. This is arguably a more modest approach than the rule applied in other circuits that such an age difference by itself defeats a plaintiff's ability to establish a prima facie case. The France decision also shows that ADEA plaintiffs may be able to overcome the presumption with evidence that a key decisionmaker considered age by preferring younger employees and repeatedly discussing retirement with older employees.