France v. Johnson

• Decision Date: 03 August 2015
• Docket Number: No. 13–15534.,13–15534.
• Parties: John M. FRANCE, Plaintiff–Appellant, v. Jeh JOHNSON,Secretary, Department of Homeland Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

795 F.3d 1170

John M. FRANCE, Plaintiff–Appellant

v.Jeh JOHNSON^* Secretary, Department of Homeland Security, Defendant–Appellee.

No. 13–15534.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2015.

Filed Aug. 3, 2015.

As Amended on Rehearing Oct. 14, 2015.

Jeffrey H. Jacobson (argued), Jacobson Law Firm, Tucson, AZ, for Plaintiff–Appellant.

Robert L. Miskell (argued), Assistant United States Attorney, Appellate Chief, John S. Leonardo, United States Attorney, District of Arizona, Tucson, AZ, for Defendant–Appellee.

Appeal from the United States District Court for the District of Arizona, Jennifer G. Zipps, District Judge, Presiding. D.C. No. 4:10–cv–00574–JGZ.

Before: BARRY G. SILVERMAN, RONALD M. GOULD, and ANDREW D. HURWITZ, Circuit Judges.

OPINION

GOULD, Circuit Judge:

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 Age Discrimination in Employment Act (“ADEA”).¹ We review a grant of summary judgment de novo. See Pac. Shores 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 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 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.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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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, 105 S.Ct. 613, 83 L.Ed.2d 523 (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 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, 93 S.Ct. 1817. 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 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...