On August 3, 2015, the U.S. Court of Appeal for the Ninth Circuit issued a decision in France v. Johnson, holding that an average age difference of less than 10 years between an Age Discrimination in Employment Act (ADEA) plaintiff and the individual(s) promoted in lieu of the plaintiff creates a rebuttable presumption that the difference was insubstantial. The “rebuttable presumption” approach affords limited protection to an employer faced with an ADEA suit, and highlights the need for employers to implement appropriate policies and training to mitigate the risk of such claims.
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 and at a GS-14 pay grade, France applied for an Assistant Chief Patrol Agent position with a pay grade of GS-15. France was the oldest applicant. While France was interviewed for promotion by a section panel, he was not selected for final consideration, and ultimately four applicants ranging in age from 44 to 48 were promoted.
France sued DHS in federal court, claiming that the decision not to promote him constituted age discrimination in violation of 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 that cast any doubt on DHS’s non-discriminatory reason for not promoting him. France appealed.
Analyzing the district court’s grant of summary judgment de novo, the Ninth Circuit noted that in ADEA cases where a plaintiff presents some direct evidence and some circumstantial evidence of age discrimination, courts analyze the case under the McDonnell Douglas framework. To establish a prima facie case of age discrimination in a failure to promote case, a plaintiff must show that (1) he was at least forty years old; (2) he was qualified for the position to which he applied; (3) he was denied the position; and (4) the promotion was given to a substantially younger person.
Circuit courts have split regarding the import of the fourth factor and its “substantially younger” requirement. Some circuits—such as the Sixth Circuit—have held that an average age difference of fewer than 10 years between an ADEA plaintiff and those who were hired defeats a plaintiff’s ability to establish a prima facie case. See, e.g., Grosjean v. First Energy Corp., 349 F.3d 332, 338-39 (6th Cir. 2003). The Seventh Circuit, by contrast, has held that a ten-year age difference creates a presumption that the age difference is insubstantial, but that the plaintiff can rebut this presumption. See, e.g., Hartley v. Wisc. Bell, 124 F.3d 887, 893 (7th Cir. 1997). The Ninth Circuit adopted the Seventh Circuit’s rebuttable presumption approach and found that the presumption applied in France’s case. The Court found that France was able to rebut the presumption on the facts before it, by proffering evidence that the individuals who influenced the promotion decision had expressed a preference for younger agents and urged France to retire even over France’s objection, and ultimately reversed the grant of summary judgment in DHS’s favor.