Appeals Court finds Inference of Age Discrimination

mEGAPHONEA federal appeals court panel recently overturned the dismissal of an age discrimination case brought by a border patrol agent in Arizona against the U.S. Department of Homeland Security (DHS).

The U.S. District Court of Appeals for the Ninth Circuit in San Francisco, CA, ruled in France v. Johnson that Arizona DHS Agent John M. France presented sufficient evidence to proceed in his claim that he was denied a promotion by the DHS in violation of the Age Discrimination in Employment Act of 1967.

In March 2007, Robert Gilbert was appointed Tucson Sector Chief Patrol Agent and established a pilot program named “Architecture for Success” which created an opportunity for a promotion to a pay grade of GS-15.  Four candidates were selected for promotion; they were aged 44, 45, 47 and 48. France, the oldest applicant at age 54, was not selected.

The DHS argued that France lacked leadership, flexibility and innovation.  Gilbert stated that France failed an interview for promotion because he had a big mouth and did not know “when to turn it on or off.”

A key factor was evidence that Gilbert had repeated retirement discussions with France after France said he did not want to retire.

In June 2007, Gilbert asked France if he was interested in teaching firearms as a “rehired annuitant” after retirement but France responded that he did not want to retire. A few months later, Gilbert asked France what he was going to do and France told Gilbert that he was going to apply for promotion to a GS-15 position. Gilbert allegedly responded that if he were in France’s position, he would retire as soon as possible. The appeals court panel said the timing of Gilbert’s retirement discussion with France was significant because the opportunity for promotion was posted in January 2008 and the promotion decisions were made in June 2008.

In addition, France testified that Gilbert remarked that he preferred “young, dynamic agents.”

The appeals court said that standing alone the retirement discussions and Gilbert’s remark might constitute “thin support” for age discrimination but together they create an inference of age discrimination and show that the DHS’ argument was simply a pretext..

The appeals court  adopted a rule from the U.S. Court of Appeals for the Seventh Circuit in Chicago, IL,  that a rebuttable presumption of age discrimination exists when there is an age difference of ten years or more between a plaintiff and his/her comparators (i.e. selected candidates).  In this case, the age gap was less than ten years but the appeals court said that France had presented additional evidence showing that DHS considered his age to be significant.

Even though Gilbert was not the final decision maker, the appeal court said a reasonable jury could infer that Gilbert’s role in the decision-making process was “significant and influential.” Gilbert was one of a panel of decision makers who interviewed Gilbert but the final decision was made by the DHS Deputy Commissioner. The appeals court said that a “speaker of discriminatory statements need not be the final decision maker of an employment decision.” The court said the plaintiff can establish a causal link by providing the speaker “influenced or was involved in the decision or decision-making process.”

“In the total circumstances … we conclude that France, although less than ten years older than his replacements, has established a prima facie case of age discrimination by showing the agency considered age in general to be significant in making promotion decisions, and that Gilbert considered France’s age specifically to be pertinent in considering France’s promotion,” ruled the panel.

The panel included Circuit Judges Barry G. Silverman, Ronald M. Gould, and Andrew D. Hurwitz. The decision was written by Gould.

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