Devon Shelley v. Pete Geren
2012 U.S. App. LEXIS 623
| 9th Cir. | 2012Background
- Shelley, 54, applied for a GS-14 Chief of Contracting position at the Army Corps Kansas City District via a two-step process starting with a 120-day temporary role and then a permanent hire.
- Butler (selecting official for the temporary position) rated applicants’ experience; Oberle (Shelley’s supervisor) provided a negative reference she later contested.
- Marsh, a younger GS-14, was selected for the 120-day position and later for the permanent Chief of Contracting role; panelists evaluated four criteria: technical competency, management, leadership, and teamwork.
- The permanent-position panel (five members) interviewed six finalists, including Marsh and Shelley; Shelley was not interviewed due to a disputed panel score change.
- Shelley alleged age discrimination in the failure to interview for the permanent position and in not being selected for the 120-day position, timely exhausting administrative remedies.
- District court granted summary judgment for the Corps; the appeal reversed and remanded for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shelley exhausted administrative remedies timely | Shelley timely initiated EEO process within 45 days | Corps argues untimely for 120-day action and separate issue | Timely exhaustion established across two-step hiring process |
| Prima facie showing of age discrimination | Shelley met age, qualification, denial, and younger replacement elements | Marsh was better qualified and younger; age not decisive | Shelley established a prima facie case under ADEA framework |
| Applicability of McDonnell Douglas framework to ADEA at summary judgment | McDonnell Douglas framework should apply to ADEA at summary judgment | Gross controls but does not overrule; McDonnell Douglas remains applicable at summary judgment | McDonnell Douglas framework used for ADEA at summary judgment; not overruled by Gross |
| Whether the Corps’ proffered reason was pretextual | Direct and indirect evidence show pretext; age bias inferred | Non-discriminatory reasons borne from qualifications and role requirements | Evidence sufficient to create a factual dispute on pretext; summary judgment reversed |
Key Cases Cited
- Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039 (9th Cir. 2009) (regulatory exhaustion impact on discrimination claims)
- Greenlaw v. Garrett, 59 F.3d 994 (9th Cir. 1995) (exhaustion and related EEOC inquiry standards)
- Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (U.S. 2009) (but-for causation governs ADEA; framework guidance at summary judgment)
- Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000) (prima facie framework for ADEA; shifts burden to employer)
- O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (U.S. 1996) (prima facie elements for ADEA failure-to-promote)