The 9th Circuit’s decision in Caldrone v. Circle K Stores Inc. demonstrates why it is risky for employers not to post a job opening, even if there is an internal employee who would be perfect for the job.
Factual Background:
Three plaintiffs, who were employed by Circle K as Dealer Business Managers, alleged that Circle K illegally denied them the opportunity to apply for a promotion to the position of West Coast Regional Director at the company because of their age. The plaintiffs each had received strong performance reviews and earned awards for their work, which, in theory, put them in line to be promoted to the regional director level. When the West Coast Regional Director role became available, all three plaintiffs expressed interest in the job. Without posting the job or soliciting applications, however, the company chose another employee, who had previously served as the Southeast Regional Director.
The three Dealer Business Managers who did not get the promotion filed suit against Circle K asserting claims of age discrimination under Federal and California law. The three plaintiffs were 54, 55, and 56 years old and the employee who was placed in the role was 45 years old. Their claims were premised on the theory that Circle K declined to accept applications for the West Coast Regional Director role because it wanted to handpick a younger candidate. Circle K took the position that there was no need to post the role internally or externally because moving the employee who had previously been the Southeast Regional Director laterally into the West Coast regional director position was a move that made sense for the business.
The district court granted the employer’s motion for summary judgment, concluding that the plaintiffs failed to establish a prima facie case of age discrimination because they did not apply for the regional director position. The plaintiffs presented evidence that Circle K had a policy of soliciting applications internally but did not follow it for this position and therefore they could not have applied. The District Court rejected the plaintiffs’ argument, concluding that there was no evidence that Circle K’s deviation from the policy in this instance was motivated by ageist animus.
On appeal, the Ninth Circuit explained that in failure-to-promote cases, establishing a prima facie case of age discrimination requires the plaintiffs to demonstrate that:
- they were at least 40 years old at the time;
- they were qualified for the position they sought;
- they were denied the position; and
- the promotion was given to a substantially younger person.
The Court explained that in many instances, it is reasonable to infer that a plaintiff who fails to put himself in the running has that failure – and not any protected characteristic – to blame for not being promoted. The Court concluded that “it makes little sense to require plaintiffs to demonstrate that they submitted an application when an employer declines to solicit applications and does not announce that a position is available.” The Court explained that while the ADEA does not require an employer to solicit applications or use any specific process in deciding which employee to promote, if the plaintiffs had no way to submit an application, their failure to do so does not weaken any inference of age discrimination. As a result, Circle K’s decision not to accept applications meant that the plaintiffs met the second element of a prima facie case of age discrimination even though they did not apply for the job.
The Court also explained that although 10 years is the presumptive threshold for a substantial age difference, a plaintiff can overcome that presumption by producing additional evidence to show that the employer considered his or her age to be significant. All three plaintiffs presented evidence that leaders at the company made ageist comments about each of the plaintiffs, such as: he was “out of touch” and “too old for this business” and that the company “wanted only younger people with MBAs.” As a result of these comments, the Court concluded that all three plaintiffs had established the fourth element of the prima facie case despite the fact that one of them was less than 10 years older than the employee who was selected.
What Does This Mean for Employers?
Promoting or even laterally moving an internal candidate into a role without giving other employees the opportunity to “put their name in the hat,” can create risk of a discrimination claim. It is therefore best practice to post all jobs internally and externally for at least some period.
Employers should have a policy or standard operating procedure that provides guidelines for when positions must be posted and for how long before a hiring decision can be made. The policy must be consistently implemented. If the company decides not to post a role, there needs to be clear documentation reflecting a non-discriminatory reason for doing so.
Additionally, do not assume that because you have hired someone who is over the age of forty or if the other candidates were not that much older than the selected candidate, you are no longer at risk of an age discrimination claim. If there is evidence that age played any role in the hiring decision, the candidate who was not selected may be able to establish a prima facie case of age discrimination.
If you have questions about this decision or would like guidance on updating your hiring and promotion practices, please contact our Labor & Employment attorneys Beth Spain (BRS@kjk.com; 216.736.7208), Dave Campbell (JDC@kjk.com; 614.427.5742), Daniel Walsh (DJW@kjk.com; 614.427.5744) or Emily Vaisa (EOV@kjk.com; 216.736.7257).