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Shelley v. Geren, No. 10-35014 (9th Cir. Jan. 12, 2012)

The Ninth Circuit holds (2-1) that a federal-sector promotion process that weeds out a well-qualified older candidate for promotion, which then awards the job to the youngest applicant, and that was possibly influenced by data about the employees' projected retirement dates, presents a genuine issue of material fact about age discrimination under the ADEA.

Shelley v. Geren, No. 10-35014 (9th Cir. Jan. 12, 2012): Plaintiff Shelley complained that he was bypassed for promotion to a permanent Chief of Contracting position because of his age (then 54). The agency sought to fill a GS-14 Supervisory Procurement Analyst position, and proposed to do so by filling an opening for a 120-day temporary position, and then announcing a formal process to hire a permanent chief. Shelley applied for the 120-day position. Out of nine applicants, the commanding major (named Butler) reviewed the resumes, conducted a brief investigation and then selected a 42-year-old applicant named Marsh.

The agency then conducted a more formal process to make the permanent hire, with five panelists making the decision.  Thirty-three people (including Shelley and March) applied, but Shelley did not survive the first round of the process and was not interviewed. While all of the six finalists were protected-age employees, Marsh was the youngest of all them. Marsh ultimately won the job.

The panel reverses summary judgment, remanding for trial, and makes several useful observations, especially in light of the intervening Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009).

1. The plaintiff administratively exhausted his claim under 29 C.F.R. §§ 1614.103 and 1614.105(a)(1). Although some of the events making up the claim - the temporary-hiring phase - occurred more than 45 days before Shelley finally complained to an EEO counselor, as required for federal-sector employees, "the decisions were not discrete employment actions, but were part of a single, two-step, hiring process." Moreover, by complaining about the later, permanent-hiring phase, Shelley preserved the like-or-related earlier temporary-hiring claim. "Because of the close relationship between the two positions and the temporally-overlapping hiring processes for them, an EEO investigation into the hiring process for the permanent position would necessarily have led to the investigation of the hiring process for the temporary position."

2. The district court erred in holding that Gross abrogated the standard for proving age discrimination and imposed a higher standard of causation. Instead, the panel affirms, consistent with every other circuit to consider the issue, that an employee can still avoid summary judgment by resort to the burden-shifting method of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).

3. Having met the prima facie McDonnell Douglas standard - Shelley "was fifty-four at the relevant time, he was qualified for both the temporary and the permanent positions, he was denied both positions, and both went to a substantially younger candidate" - to proceed to trial, the plaintiff merely needed to raise a genuine issue of material fact that the agency's reason for preferring Marsh over Shelley was a pretext for age discrimination.

The panel considered, as direct evidence of bias, that two panel members "inquired about the projected retirement dates for employees in the contracting divisions during the hiring period for the 120-day and permanent positions. A fact-finder could infer from this that they considered age and projected retirement relevant to the hiring decision."

Moreover, there was creditable indirect evidence that Shelley was clearly more qualified than Marsh:

"A comparison of Shelley's and Marsh's resumes gives rise to a factual dispute as to whether Shelley was better qualified for the position than Marsh. Compared to Marsh, Shelley had significantly more years of work experience related to contracting, and more experience employed in the Corps. As of October 2005, Shelley had twenty-nine years of experience in contracting, whereas Marsh had twenty years. Unlike Marsh, Shelley spent most of his career in the Corps. Shelley had been an employee of the Corps for over nineteen years, Marsh for five and a half years.

The panel also regarded Shelley's experience in procurement, supervisory and educational background to be clearly superior. Indeed, the only factor that appeared to favor Marsh was his higher GS ranking. But "that Shelley was a GS-13 employee, while Marsh was a GS-14, was relevant only as to the 120-day position. Had Shelley been given that position, he would have become a GS-14 and his move to the permanent position would have been lateral, like Marsh's."

The panel majority also found a disputed fact issue presented by the agency's defense that the five other finalists for the permanent position were also protected-age employees:

"Stacking the interview pool with older candidates does not immunize the decision to hire a younger one. Of the five panelists who selected the interviewees, [three] had all participated in the hiring decision for the 120-day position. Shelley received a top score from three of the five panelists. It was only the alteration of one unidentified panelist's score for Shelley from mid to bottom that cost Shelley an interview and disqualified him for the permanent position."

Dissenting, Judge Bybee views the record - particularly the circumstance that all of the finalists for the job were in the protected-age group - as clearly pointing in favor of the government. Though agreeing with the majority that the intervening Gross decision did not change the basic standard of liability, he would hold that the process could not have been driven by age as a matter of law: "Since the Corps interviewed similarly situated candidates, but not Shelley, the only plausible conclusion from this set of facts is that some reason other than age caused the selection committee to decide not to interview Shelley. And if the committee had some reason other than age-indeed, if it had any other reason-then Shelley cannot satisfy Gross's 'but-for' test."

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