U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

9th Cir. Reverses Lower Court ADEA Age Discrimination Case

Last August, the Ninth Circuit reversed the lower district's summary judgment in favor of the Department of Homeland Security when a border patrol agent sued the branch of the agency alleging violations of the Age Discrimination in Employment Act, better known as ADEA.

In the lawsuit, government employee John France alleged that he had been passed over for promotion to Assistant Chief Patrol Agent with a pay scale of GS-15 because he was the oldest candidate who applied. The Department of Homeland Security demurred and the Appellate Court finally reversed, ruling that the facts did not support summary judgment.

John France's Age Discrimination Claim

John France was a border patrol agent with the Tuscon Sector Border Patrol, which is an agency within the Department of Homeland Security. Age 54, France applied for the aforementioned ACPA agent position with a GS-15 pay grade when four vacancies were open. After a series of interviews, applicants who filled the positions were ages 44 to 48.

When France sued in Federal Court, DHS won summary judgment. The District Court found that France established a prima facie case of age discrimination, but failed to raise a genuine issue of material fact that case any doubt on the DHS's non age-discriminatory reasons for passing him over. Appeal followed.

McDonnell Douglas and "Substantially Younger Person[s]"

The Ninth Circuit essentially found that the lower court applied the wrong standard and also dismissed facts worth considering. First in the ADEA cases, the Ninth Circuit noted that France had presented direct and circumstantial evidence of age discrimination, thus triggering an age discrimination analysis under the McDonnell Douglas Corp. vs. Green (1973). Under the McDonnell four pronged analysis, the plaintiff must show that he was at least 40 years old, was qualified for the position to which he applied, was denied, and the promotion was given to a "substantially younger person."

"Rebuttable Presumption"

The fourth factor turned out to be the lynchpin of the appellate court's decision. Circuit courts cannot seem to agree as to what rules should govern "substantially younger."

The Seventh Circuit has generally held that a ten year age difference between the plaintiff and his replacements creates a "rebuttable presumption" that the age difference in such an ADEA claim is "insubstantial. And this was exactly the standard that the 9th Circuit applied. In plain speak, this shifted the burden back to the plaintiff that something else more ill-willed and pernicious was the real driving factor to plaintiff's injury -- other additional evidence of age discrimination.

No problem. France was successful in proving a prima facie case of age discrimination because his supervisor had voiced a preference for "younger, less experienced agents" and had strongly intimated that France retire. Thus, the District court had improperly dismissed this evidence and the Appellate Court reversed and remanded.

Lessons Learned

France vs. Johnson amply demonstrates that need for employers to take cautious steps in human resource training. The standard that is applicable to employers under the ADEA is a shield -- but not really.

It's akin to a shield made of cardboard against a very real potential chainsaw. In fact, the very characteristic of disagreement among the circuit opinions as to what constitutes "substantially younger" leaves open a giant gap as to which hiring behaviors may open an employer up to a potential suit. At the very least, employers should urge their employees and agents not to casually voice hiring preferences. In the case of France's supervisor, loose lips sink ships.

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