John M. France v. Jeh Johnson

John France appeals the district court’s entry of summary

judgment in favor of the United States Department of

Homeland Security in this action alleging violation of the

FRANCE V. JOHNSON 5

Age Discrimination in Employment Act (“ADEA”).1 We

review a grant of summary judgment de novo. See Pac.

Shore Props., LLC v. City of Newport Beach, 730 F.3d 1142,

1156 (9th Cir. 2013). Viewing the evidence in the light most

favorable to France, the non-moving party, we must decide

whether there are any genuine disputes of material fact and

whether the district court correctly applied the substantive

law. See Olsen v. Idaho St. Bd. of Med., 363 F.3d 916, 922

(9th Cir. 2004). Because there are genuine disputes of

material fact and the district court erred in applying our

precedents, we reverse and remand for further proceedings.

I

France is a border patrol agent assigned to the Tucson

Sector of Border Patrol, an agency of the United States

Department of Homeland Security. In March 2007, the

newly appointed Tucson Sector Chief Patrol Agent, Robert

Gilbert, established a pilot program named “Architecture for

Success,” which split Assistant Chief Patrol Agents

(“ACPA”) into two categories: operations and administration.

ACPAs in administration would be assigned a pay grade of

GS-14, and ACPAs in operations a pay grade of GS-15.

Before the pilot program, all ACPAs, including France, were

at the GS-14 pay grade.

Four GS-15 ACPA positions were created as a result of

the pilot program, and a vacancy announcement for these

positions was posted in January 2008. Twenty-four eligible

candidates applied. The applicants’ ages ranged from 38 to

1 The district court entered summary judgment on France’s age

discrimination and retaliation claims, but France only appeals the

judgment on his age discrimination claim.

6 FRANCE V. JOHNSON

54 years, and France, 54 years old at the time, was the oldest.

The selection process commenced by ranking the applicants

by their scores from the Border Patrol Agent Competency

Based Promotional Assessments. Gilbert then invited twelve

candidates for interviews in Washington, D.C.

The panel of interviewers consisted of Chief Patrol

Agents Gilbert, Vitiello, and Fisher. After the interviews, the

panel selected six top-ranked candidates for final

consideration; France was not selected. Gilbert

recommended four of the six to Chief Border Patrol Agent

David Aguilar, who in turn recommended the same four

candidates to Deputy Commissioner Jayson Ahern. When the

selection was made, France was 54 years old, and the four

selected candidates, all of whom were in the top-ranked

group, were 44, 45, 47, and 48 years old.

In September 2010, France sued the agency, alleging that

the agency’s decision to not promote him was age

discrimination in violation of the ADEA. After discovery, the

agency moved for summary judgment and offered

nondiscriminatory reasons for not promoting France. Gilbert

said that France lacked the leadership and judgment for the

GS-15 positions. Aguilar gave six reasons why he did not

recommend promoting France, including France’s lack of

leadership, flexibility, and innovation.

In opposition to the agency’s motion for summary

judgment, France produced evidence to show that the

agency’s nondiscriminatory reasons were pretexts of

discrimination. The salient evidence was both direct and

circumstantial: First, France declared under the penalty of

perjury that in a staff meeting, Gilbert expressed his

preference for “young, dynamic agents” to staff the GS-15

FRANCE V. JOHNSON 7

positions. ACPA Alfred Salacup confirmed that he had heard

this comment from Gilbert. Second, France declared that

Gilbert had repeated retirement discussions with him, despite

France’s clear indications that he did not want to retire. For

example, during a meeting in June 2007, Gilbert asked if

France was interested in teaching firearms as a “rehired

annuitant” after retirement, but France said he did not want to

retire. A few months later, Gilbert again asked what France

wanted to do, and France said that he “was not going to retire

and that [he] was going to apply for the GS15 positions.”

France recalled that Gilbert had responded that if he were in

France’s position, he would retire as soon as possible. Third,

France offered testimony from ACPAs Nicley and Salacup

about Chief Border Patrol Agent Aguilar’s preference to

promote younger, less experienced agents.

The district court concluded that although France

established a prima facie case of age discrimination, he did

not demonstrate a genuine dispute of material fact on the

agency’s nondiscriminatory reasons for not selecting him.

The district court granted summary judgment in favor of the

agency. France timely appeals.

II

The ADEA makes it unlawful for an employer to

discriminate “because of [an] individual’s age.” 29 U.S.C.

§ 623(a)(1). The ADEA protects federal employees and

applicants for federal employment who are at least 40 years

of age. See id. §§ 631(a), 633a(a). In deciding a motion for

summary judgment, a court should not weigh the evidence or

determine the truth of the matter; it should only determine

whether there is a genuine dispute of fact for trial. See Abdul-

Jabbar v. Gen. Motors Corp., 85 F.3d 407, 410 (9th Cir.

8 FRANCE V. JOHNSON

1996). Summary judgment is improper if a reasonable fact

finder could find by a preponderance of the evidence that

France is entitled to a verdict in his favor. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

When a plaintiff opposing summary judgment presents

direct evidence of a discriminatory motive, we do not assess

the direct evidence in the burden-shifting framework set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). See Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d

802, 812 (9th Cir. 2004). “Direct evidence, in the context of

an ADEA claim, is defined as evidence of conduct or

statements by persons involved in the decision-making

process that may be viewed as directly reflecting the alleged

discriminatory attitude . . . sufficient to permit the fact finder

to infer that that attitude was more likely than not a

motivating factor in the employer’s decision.” Id. (internal

quotation marks omitted). Direct evidence, which standing

alone can defeat summary judgment, must be evidence

directly tied to the adverse employment decision. See, e.g.,

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121

(1985) (finding direct evidence of age discrimination when

the method of transfer available to a disqualified captain

depends on his age); Ezell v. Potter, 400 F.3d 1041, 1051 (7th

Cir. 2005) (finding direct evidence when the employer told a

new hire that they intended “to get rid of older carriers and

replace them with younger, faster carriers”); Enlow, 389 F.3d

at 812 (finding direct evidence of age discrimination when a

taxi driver 73 years old was terminated because the

company’s insurance policy did not cover employees older

than the age of 70); Am. Ass’n of Retired Persons v. Farmers

Grp., Inc., 943 F.2d 996, 1000 n.7 (9th Cir. 1991) (noting that

the McDonnell Douglas framework is inapplicable “when a

[pension plan] provision is discriminatory on its face”). In

FRANCE V. JOHNSON 9

contrast, stray remarks not directly tied to the decisionmaking

process are not direct evidence capable of defeating

summary judgment. See Merrick v. Farmers Ins. Grp.,

892 F.2d 1434, 1438 (9th Cir. 1990).

The district court concluded that France did not present

direct evidence to establish an inference of age

discrimination. This is a close question. Gilbert’s repeated

retirement discussions with France are not direct evidence

showing that Gilbert would not consider France for the GS-15

position, but rather circumstantial evidence showing Gilbert’s

bias in his decisionmaking process. On the other hand, the

statement by Gilbert about his preference for “young,

dynamic agents” to staff the GS-15 positions probably goes

beyond a stray remark, see Ezell, 400 F.3d at 1051, although

standing alone this evidence would be thin support to create

a genuine dispute of material fact. In this case where France

presented both some direct evidence and some circumstantial

evidence, it is most appropriate to consider the propriety of

summary judgment under the McDonnell Douglas

framework. See Shelley v. Geren, 666 F.3d 599, 607 (9th Cir.

2012); Enlow, 389 F.3d at 812.

III

A

Under the McDonnell Douglas framework, a plaintiff

must carry the initial burden to establish a prima facie case

that creates an inference of discrimination. McDonnell

Douglas, 411 U.S. at 802. If the employee establishes a

prima facie case, an inference of discrimination arises and the

burden shifts to the employer to produce a legitimate,

nondiscriminatory reason for its employment action. Id. If

10 FRANCE V. JOHNSON

the employer does so, the burden shifts back to the employee

to prove that the employer’s explanation is a pretext for

discrimination. Id.

We first address whether France has established a prima

facie case of age discrimination. “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.” Shelley, 666 F.3d

at 608. The agency does not dispute that the first three

prongs were shown, but contends that the fourth prong was

not satisfied because the selected ACPAs were not

substantially younger than France.

At the time of the promotion decisions, France was 54

years old and the four selected ACPAs were 44, 45, 47, and

48 years old, so the average age difference between France

and the selected ACPAs was eight years. Were the eight-year

age difference all the evidence before us, it would not be

sufficient to satisfy the fourth prong. A majority of circuit

courts interpreting the fourth prong have held that an age

difference of less than ten years, without more evidence, is

insufficient to make a prima facie case of age discrimination.

See Grosjean v. First Energy Corp., 349 F.3d 332, 338–39

(6th Cir. 2003) (collecting cases from various circuits). The

Seventh Circuit has 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, 893 (7th Cir. 1997).

FRANCE V. JOHNSON 11

We agree that it is a reasonable and workable rule, so we

adopt the Seventh Circuit’s rebuttable presumption approach.

We hold that 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.2 Id. Here,

the average age difference between France and the selected

ACPAs is eight years, which is presumptively insubstantial.

But our analysis does not end there. A plaintiff who is

not ten years or more older than his or her replacements can

rebut the presumption by producing additional evidence to

show that the employer considered his or her age to be

significant. Id. The plaintiff can produce either direct or

circumstantial evidence to show that the employer considered

age to be a significant factor.

France declared under penalty of perjury that Chief

Gilbert explicitly expressed a preference for promoting

younger agents. ACPAs Nicley and Salacup also testified

that Chief Border Patrol Agent Aguilar preferred to promote

“younger, less experienced agents.” France further declared

that Chief Gilbert had repeated retirement discussions with

him soon before the posting of the GS-15 positions, in spite

of France’s personal inclination not to retire. In the total

circumstances presented opposing summary judgment, we

conclude that France, although less than ten years older than

his replacements, has established a prima facie case of age

2 We have previously applied this presumption and concluded that a 9.5

years’ average age difference between the workers hired and those laid off

was insufficient to establish a prima facie case of age discrimination. Diaz

v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1209 (9th Cir. 2008) (citing

Hartley, 124 F.3d at 893).

12 FRANCE V. JOHNSON

discrimination by showing that the agency considered age in

general to be significant in making its promotion decisions,

and that Gilbert considered France’s age specifically to be

pertinent in considering France’s promotion.

B

The agency contends that it decided not to promote

France because France’s qualifications did not meet the

leadership and judgment required for the GS-15 positions.

Gilbert stated that France had a big mouth and did not know

“when to turn it on or off,” and these weaknesses caused him

to fail the interview. Aguilar gave six reasons why he did not

recommend France to Chief Ahern, including France’s lack

of leadership, flexibility, and innovation. France did not

challenge the legitimacy of the agency’s nondiscriminatory

reasons in his opening brief, and arguments not raised in the

opening brief are waived. Smith v. Marsh, 194 F.3d 1045,

1052 (9th Cir. 1999). We agree with the district court’s

conclusion that the agency has articulated legitimate,

nondiscriminatory reasons for not selecting France.

C

We come to the crux of this case. Once the agency has

articulated legitimate, nondiscriminatory reasons for its

decision, as it did here, the burden shifted to France to raise

a genuine dispute of material fact as to pretext to avoid

summary judgment. See Wallis v. J.R. Simplot Co., 26 F.3d

885, 890 (9th Cir. 1994). A plaintiff asserting age

discrimination can “demonstrate pretext in either of two

ways: (1) directly, by showing that unlawful discrimination

more likely than not motivated the employer; or

(2) indirectly, by showing that the employer’s proffered

FRANCE V. JOHNSON 13

explanation is unworthy of credence because it is internally

inconsistent or otherwise not believable.” Earl v. Nielsen

Media Research, Inc., 658 F.3d 1108, 1112–13 (9th Cir.

2011). France’s direct evidence, standing alone, is

insufficient to defeat the agency’s motion for summary

judgment. When the plaintiff has some direct evidence but

also must rely on circumstantial evidence to show pretext, we

treat direct and circumstantial evidence alike, Desert Palace,

Inc. v. Costa, 539 U.S. 90, 100 (2003), and we consider both

types of evidence cumulatively, Raad v. Fairbanks N. Star

Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003).

We have said that the circumstantial evidence relied on by

the plaintiff must be “specific” and “substantial.” See

Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.

1998). There is some question whether that distinction for

circumstantial evidence is valid after the Supreme Court’s

Costa decision which placed direct and circumstantial

evidence on an equal footing. See Costa, 539 U.S. at 100;

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,

1029–30 (9th Cir. 2006). Indeed, this “specific and

substantial” standard “is tempered by our observation that a

plaintiff’s burden to raise a triable issue of pretext is hardly

an onerous one.” Earl, 658 F.3d at 1113 (internal citations

and quotation marks omitted). We have repeatedly held that

it should not take much for a plaintiff in a discrimination case

to overcome a summary judgment motion. See, e.g., Nigro v.

Sears, Roebuck & Co., 784 F.3d 495, 499 (9th Cir. 2015);

Diaz, 521 F.3d at 1207; Davis v. Team Elec. Co., 520 F.3d

1080, 1089 (9th Cir. 2008); Metoyer v. Chassman, 504 F.3d

919, 939 (9th Cir. 2007); Dominguez-Curry v. Nev. Transp.

Dep’t, 424 F.3d 1027, 1042 (9th Cir. 2005); Chuang v. Univ.

of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir.

2000). “This is because the ultimate question is one that can

14 FRANCE V. JOHNSON

only be resolved through a searching inquiry—one that is

most appropriately conducted by a factfinder, upon a full

record.” Chuang, 225 F.3d at 1124 (internal quotation marks

omitted).

The district court concluded that Gilbert’s discriminatory

statements were insufficient to create a genuine dispute of

material fact because Gilbert had a limited role in the ultimate

hiring decision. The district court erred in two respects.

First, as a matter of law, to create a genuine dispute of

material fact on pretext, a speaker of discriminatory

statements need not be the final decisionmaker of an

employment decision. See, e.g., Poland v. Chertoff, 494 F.3d

1174, 1182 (9th Cir. 2007); Dominguez-Curry, 424 F.3d at

1039–40; Mondero v. Salt River Project, 400 F.3d 1207, 1213

(9th Cir. 2005).

In Poland, referring to the “cat’s paw metaphor,” we held

that even if a subordinate employee with bias was not the

final decisionmaker, the plaintiff can establish a causal link

by proving that “the biased subordinate influenced or was

involved in the decision or decisionmaking process.”

494 F.3d at 1182. Here, France produced evidence showing

Gilbert’s influence and substantial involvement in the hiring

decisions, including (1) that Gilbert was the person who

created the GS-15 positions in the first place; (2) that other

interviewers deferred to Gilbert because he will be

supervising the promoted ACPAs; and (3) that Gilbert

recommended the four finalists to Chief Aguilar, who then

recommended the same people to Deputy Commissioner

Ahern. Even though Aguilar and Ahern had the authority to

change the finalists recommended by Gilbert, they did not do

so, and in the total circumstances Gilbert’s recommendations

had substantial influence on the decision made, because both

FRANCE V. JOHNSON 15

Aguilar and Ahern deferred to Gilbert’s recommendation. A

reasonable fact finder could infer that Gilbert—the

subordinate employee with a discriminatory animus—was

involved in and influenced the hiring decisions.3 We

conclude that there is a genuine dispute of material fact as to

whether Chief Gilbert influenced or was involved in the

hiring decisions of the GS-15 positions, despite that he was

not the final decisionmaker.

Second, the district court erred in concluding that Gilbert

had a limited role in the hiring decision. Gilbert was the

person who established the Architecture for Success pilot

program and who created the GS-15 positions for which

France applied. Also, Vitiello, one of the three interviewers,

said that he deferred to Gilbert at the interview because

Gilbert would be supervising the selectees in the Tucson

Sector. Although Aguilar had the authority to change the

finalists selected by Gilbert, Aguilar did not change them and

deferred to Gilbert’s selection. A reasonable fact finder could

infer that Gilbert’s role in the decisionmaking process was

significant and influential. The district court should view the

evidence and draw all inferences in the light most favorable

to France, the non-moving party; the finding of fact, to the

extent it runs contrary to the inferences that could have been

drawn in favor of France, is inappropriate. See Zweig v.

Hearst Corp., 594 F.2d 1261, 1264 n.3 (9th Cir. 1979). We

conclude that the district court erred in finding that Gilbert

had a limited role in the decisionmaking process.

3 In Poland, 494 F.3d at 1182, the higher level decisionmaker was not

biased; only the subordinate was biased. The circumstances here are

stronger for France because the higher level decisionmaker, Aguilar, was

also shown to have some ageist bias. ACPAs Nicley and Salacup testified

that Aguilar preferred to promote younger, less experienced agents.

16 FRANCE V. JOHNSON

Also, the district court did not consider Gilbert’s repeated

retirement discussions with France in assessing whether

Gilbert’s articulated nondiscriminatory reasons were

pretextual. Although these retirement discussions standing

alone are insufficient direct evidence of discrimination, the

district court erred in disregarding this evidence, which was

presented with circumstantial evidence, for the purpose of

determining the agency’s pretext. The timing of the

retirement discussions is significant: The retirement talks

occurred from June to November 2007; the GS-15 positions

were posted a couple of months later in January 2008 and the

promotion decisions were made in June 2008. The close

proximity in time could allow a reasonable fact finder to find

by a preponderance of the evidence that France’s nonselection

based on grounds other than age was pretextual.

The district court may not weigh the evidence at the summary

judgment stage but should focus on whether there are any

triable issues of fact. See Taybron v. City & Cnty. of S.F.,

341 F.3d 957, 959 n.2 (9th Cir. 2003). The district court

erred in granting summary judgment resting on an erroneous

application of our precedents and in finding that France did

not show a genuine dispute of material fact on whether the

agency’s nondiscriminatory reasons were pretextual.

REVERSED and REMANDED.