It’s not enough for employers to make nondiscriminatory promotion decisions. They also must prevent their managers from making comments that create a perception that discrimination is in play. Recently, the U.S. Court of Appeals for the Ninth Circuit considered whether a trial court had erred in ruling against an employee who claimed that age discrimination prevented his promotion.

Candidate calls foul

The plaintiff, a federal employee, brought a suit against his employer, the Tucson Sector of Border Patrol (an agency of the U.S. Department of Homeland Security). He alleged that, in violation of the Age Discrimination in Employment Act, the agency decided not to promote him to a new assignment because of his age.

Twenty-four eligible candidates applied for four new border patrol assignments that came with pay increases. The applicants were between 38 and 54 years old, with the plaintiff being the oldest candidate. The agency chose 12 candidates to interview based on assessment scores. Thereafter, the interviewers, a panel of three Chief Patrol Agents, selected six candidates for final consideration. One of the agents recommended four of the six to the Chief Border Patrol Agent who, in turn, recommended the four candidates to the Deputy Commissioner. The four selected candidates were between 44 and 48 years old.

Pretext for preference

The plaintiff wasn’t selected for final consideration. The agent who interviewed and recommended the final four candidates stated that the plaintiff wasn’t promoted because he lacked the leadership and judgment for the position as well as flexibility and innovation.

The plaintiff presented as evidence of pretext for age discrimination his claim that, at a staff meeting, the agent had expressed his preference for “young, dynamic agents” for the new position. This statement was confirmed by a co-worker. The plaintiff also claimed that the agent had conducted repeated retirement discussions with him — even though the plaintiff had made clear he didn’t want to retire. Additionally, two co-workers testified that the Chief Border Patrol Agent showed a preference for promoting younger, less experienced agents.

The trial court granted summary judgment in favor of the defendant because the agent had only a limited role in the ultimate hiring decision. The plaintiff appealed.

Reverse and remand

A plaintiff asserting age discrimination can demonstrate pretext indirectly by showing that the employer’s proffered explanation isn’t credible because it’s inconsistent or otherwise unbelievable. The appeals court held that the trial court had erred because it failed to take into account the cat’s paw theory.

Under the cat’s paw theory, the speaker of a discriminatory statement doesn’t need to be the final decision maker if the plaintiff can establish that the speaker influenced or was involved in the decision or decision-making process. The court held that, in this case, there were genuine issues of material fact as to whether the agent — who had allegedly stated a preference for promoting younger agents and had conducted retirement discussions with the plaintiff — was involved in the hiring decision for the new position.

The plaintiff had produced evidence that the agent was the person who created the new positions. Other chief patrol officers who interviewed the job candidates deferred to that agent because he would be supervising the candidates. In addition, the agent recommended four candidates to the Chief Border Patrol Agent, who then passed that recommendation to the Deputy Commissioner.

The court felt that the agent had substantial influence on the promotion decision because his superiors deferred to his recommendation. Therefore, it held that a genuine dispute existed as to the agent’s influence or involvement. Accordingly, the appeals court reversed the ruling and remanded the case back to the trial court for further consideration.

Watch your employees’ words

This case should serve as a warning to employers that discriminatory statements made by employees could lead to a discrimination case — even if the speaker doesn’t make final decisions that lead to an adverse action. It’s enough that a speaker influences or is involved with a decision. 

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