In Caldrone v. Circle K Stores Inc., 2025 WL 2811320 (9th Cir. Oct. 3, 2025), the U.S. Court of Appeals for the 9th Circuit reversed and remanded the lower court’s award of summary judgment dismissing plaintiffs’ allegations of age discrimination (failure to promote) under the Age Discrimination in Employment Act (ADEA).
The court proceeded to apply the McDonnell Douglas 3-step burden-shifting framework. As to the first step – the prima facie case – the court explained:
Plaintiffs’ theory of the case is that Circle K declined to accept applications for the West Coast regional-director position because it wanted to handpick a younger candidate. Circle K concedes that it did not seek applications, asserting that it “decided there was no need to open the [role] for applications, internally or externally, because Angeles laterally moving into the West Coast Regional Director position was a decision that made business sense for Circle K.” As in Reed, Circle K’s decision not to accept applications obviated plaintiffs’ obligation to submit them.
Contrary to the district court’s understanding, it does not matter why Circle K did not open the West Coast regional-director position to applications. Plaintiffs need not show that Circle K somehow acted improperly in not soliciting applications. The ADEA does not require an employer to solicit applications, or, indeed, to use any specific process in deciding which employees to promote. At the first step of the McDonnell Douglas inquiry, the question is simply whether the plaintiff has established that the employer took actions that, if inadequately explained, give rise to an inference of age discrimination. See EEOC v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir. 1990); White v. City of San Diego, 605 F.2d 455, 458 (9th Cir. 1979). And if plaintiffs had no way to submit an application—whatever the reason—their failure to do so does nothing to weaken any inference of age discrimination that the other elements of the prima facie case create. Because there is no dispute that Circle K did not give plaintiffs the opportunity to apply for the West Coast regional-director position, plaintiffs have established the second component of a prima facie case.
Although the parties agree that Celusta and Staats established the fourth component of a prima facie case, the district court held that Caldrone could not do so because Angeles is only 9.3 years younger than Caldrone and therefore is not “substantially younger” than him. O’Connor, 517 U.S. at 313, 116 S.Ct. 1307; France, 795 F.3d at 1174. In France, we held 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.” 795 F.3d at 1174.
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.” France, 795 F.3d at 1174; accord Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 893 (7th Cir. 1997) (“Ten years is a reasonable threshold …. Yet the line we draw is not so bright as to exclude cases where the gap is smaller but evidence nevertheless reveals the employer’s decision to be motivated by the plaintiff’s age.”). In France, the plaintiff successfully rebutted the presumption with evidence that the hiring manager “explicitly expressed a preference for promoting younger [employees]” and “had repeated retirement discussions with [the plaintiff] soon before the posting of the [vacancy], in spite of [the plaintiff’s] personal inclination not to retire.” 795 F.3d at 1174. That evidence, we concluded, sufficed to show that the employer “considered age in general to be significant in making its promotion decisions, and that [the hiring manager] considered [the plaintiff’s] age specifically to be pertinent in considering [the plaintiff’s] promotion.” Id.
Caldrone produced similar evidence. Celusta declared that George Wilkins—the Circle K executive who plaintiffs assert chose Angeles—told him that he was “out of touch” and “too old for this business” after he told Wilkins that he was 56. Wilkins also encouraged Celusta to “start thinking about retiring.” Thomas Maloney, who previously served as the Midwest regional director, declared that Gerardo Valencia—Wilkins’s boss—“press[ed] [him] to remove older employees for no business reasons.” And Staats declared that Maloney told her that Valencia and Wilkins “wanted only younger people with MBAs.” That evidence may or may not convince a jury that the ultimate promotion decision was based on age, but for purposes of establishing a prima facie case, it creates an issue of fact about whether Circle K “considered age in general to be significant in making its promotion decisions.” France, 795 F.3d at 1174.
We recognize that, unlike the plaintiff in France, Caldrone has not offered evidence that Circle K “considered [his] age specifically to be pertinent in considering [his] promotion.” France, 795 F.3d at 1174. In France, however, we did not consider whether such plaintiff-specific evidence is required to overcome the presumption, much less hold that it is. Id. Rather, we explained that “[t]he plaintiff can produce either direct or circumstantial evidence to show that the employer considered age to be a significant factor,” and we described the nature of the evidence that the plaintiff presented to explain our conclusion that his evidence was sufficient. Id. In any event, Circle K has not argued that France requires evidence at that level of particularity. Instead, its position appears to be that Caldrone has not provided any admissible evidence to overcome the presumption that his 9.3-year age gap is insignificant. As demonstrated above, that is incorrect. We therefore conclude that Caldrone has established a prima facie case of age discrimination.
The court next turned to the second step of the analysis, finding that defendant articulated a “legitimate, nondiscriminatory reason” for the failure to promote, namely, “that it selected Angeles because he was the only person to express interest in the position and because his prior experience as the Southeast regional director made him uniquely suited for the role.”
Finally, the court turned to the last step of the analysis, which required plaintiffs to raise a triable issue of fact “whether a facially legitimate rationale was pretextual.”
The court held that plaintiffs indeed did so:
Plaintiffs have presented enough evidence to create a triable issue on pretext. First, there is the evidence, recounted above, that Wilkins made ageist comments to older employees, expressed a desire to promote younger candidates, and encouraged older employees to retire. The district court deemed that evidence irrelevant because it believed that plaintiffs had not produced any admissible evidence showing that Wilkins was involved in the selection of Angeles.
That was error. Maloney declared that it was Circle K’s policy for the vice president to whom the regional director would report to select that regional director. When Angeles was selected to be the West Coast regional director, Wilkins was the vice president to whom the new West Coast regional director was to report. A jury crediting that evidence could reasonably infer that Circle K followed its internal policy in this instance, which would mean that Wilkins selected Angeles. And if the jury also credited the evidence about Wilkins’s ageist animus, it could reasonably infer that he denied plaintiffs the opportunity to seek the West Coast regional-director position because of their age.
Second, plaintiffs offered evidence that casts doubt on the quality of Angeles’s experience at Circle K. Maloney declared that Angeles’s performance as the Southeast regional director was woefully subpar. According to Maloney’s declaration, Angeles was responsible for 231 dealers as the Southeast regional director but managed to meet with only 10. And although regional directors are expected to visit each State in their region at least quarterly, Angeles traveled to Florida and North Carolina only once in more than a year. The situation, in Maloney’s telling, became so bad that he was “forced to assist [Angeles] with management of his region by managing some of his DBMs.”
Nor does it appear to be undisputed that Angeles produced a record as a DBM that was worthy of promotion. Maloney declared that as his direct report, Angeles was “timid and lacking confidence, … interpersonal skills, industry knowledge, … entrepreneurial vision, [and] general leadership skills.” Angeles’s productivity scores put him in the 30th percentile of his DBM peer group. So extreme was Angeles’s underperformance that Maloney declared that he ought to have been disqualified from promotion under Circle K’s policies. The district court dismissed this evidence in a footnote, characterizing it as nothing more than Maloney’s “opinion.” Even so, that opinion was based on objective performance metrics—metrics that a jury could infer that Circle K management likely knew about.
Third, plaintiffs have produced evidence suggesting that Circle K’s decision not to advertise the West Coast regional-director position to its employees was a deviation from its standard policy. Plaintiffs presented four declarations stating that when a position became available, Circle K would inform its employees of the vacancy either through email or its intranet. Because it is undisputed that Circle K knew about plaintiffs’ interest in a promotion, a jury could infer that this deviation was an attempt to prevent plaintiffs from applying for the role. That would undercut Circle K’s explanation that it chose Angeles because he was the only person to express interest in the position.
The district court concluded that the declarations were inadmissible hearsay. Under Federal Rule of Evidence 801, hearsay is an out-of-court statement offered “to prove the truth of the matter asserted in the statement.” Plaintiffs’ declarations were not offered to establish the truth of any out-of-court statements but merely to establish Circle K’s pattern of conduct—namely, its prior practice of announcing vacancies. Although the declarations arguably refer to out-of-court statements—the job listings themselves—plaintiffs are not offering those statements for their truth because they are not attempting to show that the positions at issue in the prior announcements actually were available. All that matters is that the statements were made and that they provide evidence of a policy of posting job openings internally. The declarations are not hearsay.
The district court also determined that, even if Circle K had a policy of posting jobs internally at some point before 2020, there was no evidence that its deviation from that policy in this instance was motivated by ageist animus. But that is what a jury could infer if plaintiffs succeed in proving that Circle K’s decision not to post the vacancy was a deviation from its normal policy, made with knowledge of plaintiffs’ interest in a promotion.
Accordingly, the court held that plaintiffs thus “raised a material dispute of fact as to whether Circle K’s proffered explanation for selecting Angeles was pretext for illegal discrimination, making summary judgment inappropriate.”