France v. Johnson, 2015 WL 4604730 (9th Cir. 2015)

John France, a border patrol agent assigned to the Tucson Sector Border Patrol, applied for a promotion to Assistant Chief Patrol Agent (GS-15 pay grade). Of the 24 eligible candidates, France was the oldest (age 54). Although France was among the top 12 candidates invited for interviews in Washington, DC, he was not among the top six who received final consideration for the position. In response, France sued the U.S. Department of Homeland Security for age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). Although the district court found that France had established a prima facie case of age discrimination, he did not demonstrate a genuine issue of material fact with respect to the agency’s proffered nondiscriminatory reasons for not promoting him. The United States Court of Appeals for the Ninth Circuit reversed, holding that less than an average 10-year age difference between France and the four selected candidates created a rebuttable presumption that the age difference was insubstantial but that France had rebutted that presumption with evidence of his supervisor’s expression of a preference for “young, dynamic agents” and his repeated discussions with France about retirement (despite France’s “clear indication that he did not want to retire”). The Court further held there was a genuine dispute of material fact as to whether France’s supervisor influenced or was involved in the promotion decisions (even though he was not the final decisionmaker). In addition, the supervisor’s repeated discussions about retirement suggested the nondiscriminatory reasons offered by the agency may have been pretextual.