John France v. Jeh Johnson
2015 U.S. App. LEXIS 13487
| 9th Cir. | 2015Background
- France, age 54, was a border patrol agent at GS-14 prior to the pilot program.
- In March 2007, Architecture for Success split ACPAs into administration (GS-14) and operations (GS-15).
- In January 2008 a vacancy for four GS-15 ACPA positions was posted; 24 applicants, ages 38–54, applied; France was the oldest.
- The interview panel (Gilbert, Vitiello, Fisher) selected six finalists; France was not promoted; the four selected ranged from 44 to 48.
- Gilbert recommended the four finalists to Aguilar, who in turn recommended them to Deputy Commissioner Ahern; France sued in September 2010 alleging ADEA age discrimination.
- The district court granted summary judgment for DHS on the discrimination claim; France appeals, focusing on the prima facie case and pretext.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prima facie case based on age difference | France argues eight-year average gap is substantial enough. | Agency relies on presumptively insubstantial under ten-year rule. | France established a prima facie case despite <10-year gap. |
| Legitimacy of nondiscriminatory reasons | Reasons are pretextual due to bias and selective considerations. | Reasons such as leadership, judgment, and interview performance are legitimate. | Agency gave legitimate nondiscriminatory reasons. |
| Pretext evidence sufficiency | Direct and circumstantial evidence show age bias and pretext. | Evidence insufficient to show pretext when viewed with McDonnell Douglas framework. | Material factual dispute as to pretext remains. |
| Influence of Gilbert in decisionmaking (cat’s paw) | Gilbert substantially influenced hiring despite not being final decisionmaker. | Gilbert had limited role per district court. | Genuine dispute on whether Gilbert influenced the GS-15 decision. |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishes burden-shifting framework for discrimination claims)
- Shelley v. Geren, 666 F.3d 599 (9th Cir. 2012) (treats direct and circumstantial evidence under pretext framework)
- Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802 (9th Cir. 2004) (direct evidence may defeat summary judgment; circumstantial evidence considered too)
- Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (direct and circumstantial evidence treated on equal footing)
- Poland v. Chertoff, 494 F.3d 1174 (9th Cir. 2007) (cat’s paw theory; biased subordinate can influence decisionmaking)
- Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115 (9th Cir. 2000) (requires triable issues of fact for pretext)
- Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201 (9th Cir. 2008) (ten-year age-gap presumptions discussions)
- Hartley v. Wisconsin Bell, 124 F.3d 887 (7th Cir. 1997) (ten-year rule discussion on prima facie case)
- Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185 (9th Cir. 2003) (-equal footing of direct/circumstantial evidence)