The Plaintiff applied for a 120 day temporary position with the United States Army Corps of Engineers as a Chief of Contracting. ?He was 54 years old at the time of the application.? ?His application was rejected in favor of a 42 year old candidate.?? ?The explanation given for the selection was that the Plaintiff, Shelley, received a bad reference from a former supervisor.?? But that ?supervisor ?denied ?giving? a ?bad ?reference. One of the decision-makers knew that Shelley was in his 50s. ?That same decision maker stated that he had previously worked with the 42 year old candidate that was given the position, and that turned out to be false.
Shortly before it was announced that the younger candidate ?got ?the ?temporary? position, ?a permanent job for the same position was posted. Shelley applied for that position as well. ?Prior to the decision for the permanent position, two decision ?makers ?inquired ?about ?the? projected dates of retirement for all employees in their district and regions. ?Although some of that data did ?not ?include? names ?of ?employees, ?it ?did include sufficient information from which their names and positions were readily discernible. After? ?all? ?the? ?applicants? ?for?? the? ?permanent position were evaluated, Shelly was not given an interview. ?The position was given to the same 42 year old employee who had been given the temporary position.
After exhausting internal EEO administrative remedies, Shelley filed suit alleging a violation of the? ?Age? ?Discrimination? ?Employment? ?Act,? ?29 U.S.C. Section 623(a)(1).? ?The District Court granted summary judgment and the Plaintiff appealed.? The Ninth Circuit reversed.
In Gross v. FBL Financial Services, the Court decided that the ?mixed motive? analysis did not apply? to ?the ?ADEA ?within ?the ?context ?of ?a proposed jury instruction. ?A Plaintiff is required to show that ?but for? age the adverse action would not have happened. ?129 S.Ct. at 2349. ?The Court specifically declined to decide whether the McDonnell Douglas framework applied. ?Id. ?The Ninth Circuit now has ruled that it does apply.
The Court found that the plaintiff had established pretext? based? upon? the ?evidence that ?a decision maker inquired about projected dates of retirement, and? ?that? ?person? ?could? ?have?? influenced? ?other decision makers on the hiring panel.?? The Court also ruled that a fact finder could have concluded that the Plaintiff had superior qualifications than the selected younger candidate and ?[e]vidence of a plaintiff?s superior qualifications, standing alone, may be sufficient to prove pretext.??? The Court concluded that the failure to hire Plaintiff for the temporary 120 day position was clearly a causative factor in the denial of the permanent position. Judge Bybee dissented.
Shelley v. Geren, 666 F.3d 599 (1/12/12) (Wilken (N.D. Cal), B. Fletcher, Bybee)