France v. Johnson: Plaintiff Raises Genuine Issue in Age Discrimination Case by Introducing Evidence that Person Involved in Promotion Decision Made Discriminatory Statements and Repeatedly Raised Question of Retirement with Him

In France v. Johnson, ___ F.3d ___ (8/3/15), a border patrol agent sued the Secretary of the Department of Homeland Security (DHS), alleging that DHS violated the Age Discrimination in Employment Act (ADEA) by refusing to promote him because of his age. 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 dispute of material fact on the agency's nondiscriminatory reasons for not promoting him. France appealed, and the Ninth Circuit reversed, holding as follows:

Where a plaintiff introduces direct evidence of a discriminatory motive, the McDonnell Douglas burden-shifting analysis does not apply on summary judgment. Although France introduced "some direct evidence and some circumstantial evidence" of discriminatory intent, the Court found it "most appropriate" to use McDonnell Douglas. 

In a failure-to-promote case, a plaintiff may establish a prima facie case of discrimination in violation of the ADEA by producing evidence that he or she was (1) at least forty years old, (2) qualified for the position for which an application was submitted, (3) denied the position, and (4) the promotion was given to a substantially younger person. 

To determine whether the person promoted is "substantially younger" than the plaintiff, an age difference of ten or more years is presumed substantial, and an age difference of less than ten years is presumed insubstantial. A plaintiff can rebut the presumption by showing that the employer considered his or her age to be "significant." Evidence, inter alia, that one of the decisionmakers expressed a preference for younger employees was sufficient to rebut the presumption. France established a prima facie case of discrimination.

DHS established legitimate business reasons for rejecting France, so the Court turned to the final element of the test: the plaintiff's obligation to raise a genuine dispute of material fact as to pretext.

Because "the ultimate question is one that can only be resolved through a searching inquiry—one that is most appropriately conducted by a factfinder, upon a full record," "it should not take much for a plaintiff in a discrimination case to overcome a summary judgment motion." France raised genuine issues sufficient to defeat summary judgment by introducing evidence that one of the decisionmakers - even if not the chief decisionmaker - made discriminatory statements and repeatedly raised the issue of retirement with him. 

The opinion is available here.