ADEA: Age Difference Less Than 10 Years Can Fly

I like cases when a summary judgment is overturned on appeal. In this case, the Ninth Circuit Court of Appeals recently concluded that an age discrimination case filed under the Age Discrimination in Employment Act (ADEA) can proceed, even though the plaintiff was less than ten years older than his replacement.

This Arizona case involved the Department of Homeland Security and a border patrol agent who alleged he was not promoted because he was too old. Plaintiff was 54 years old, the oldest applicant for the promotion, and the four candidates chosen were 44, 45, 47 and 48 years old.

Plaintiff alleged that the Tucson Sector Chief Patrol Agent, Robert Gilbert, who made the recommendations for the promotions, said he preferred “young, dynamic agents.” Plaintiff also said that Gilbert had repeated retirement discussions with him. When plaintiff told Gilbert he wanted to apply for the promotion, Gilbert said that if he were in plaintiff’s position, he would retire as soon as possible.

The interesting issue in this case is the age difference between the promoted agents and plaintiff—it was less than ten years. The court noted that other circuits held that an age difference of less than ten years is insufficient to make a prima facie case of age discrimination, citing Grosjean v. First Energy Corp., 349 F.3d 332 (6th Cir. 2003), a case which discusses similar holdings from other circuits.

But the Seventh Circuit, an apparent outlier circuit, held that an age difference of less than ten years creates a rebuttable presumption that the age difference is insubstantial. Hartley v. Wisc. Bell, 124 F.3d 887 (7th Cir. 1997). Being sometimes considered an outlier itself, the Ninth Circuit adopted the Seventh Circuit’s rule.

So the new rule in the Ninth Circuit is this: An average age difference of ten years or more between the plaintiff and the replacements will be presumptively substantial, whereas an age difference of less than ten years will be presumptively insubstantial.

One can overcome presumptions with evidence, as the plaintiff here did.

Even though this is a federal ADEA case and this is a FEHA blog, the California Courts often look to decisions under the ADEA in federal courts for guidance when the relevant language of the FEHA and federal statutes are similar. Williams v. Chino Valley Independent Fire District, 61 Cal.4th 07 (2015). The problem here is, in California part of the plaintiff’s prima facie case is to show that he or she was replaced by a “significantly younger person.” Hersant v. California Dept. of Social Services, 57 Cal. App. 4th 997, 1002-1003 (1997). Must also read that huge case that we all know, Guz v Bechtel Nat. Inc., 24 Cal. 4th 317 (2000).

In certain FEHA age discrimination cases, this decision may win the day for the plaintiff.

France v. Johnson
Ninth Circuit Court of Appeals
No. 13-15534, October 14, 2015.


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