In Braaten v. Newmont USA Ltd., No. 17-15394 (Feb. 15, 2018), the Ninth Circuit affirmed the district court's determination that John Braaten failed to establish a prima facie case of age discrimination when he was fired, because his replacement was less than 10 years younger.
This case illustrates a peculiarity about a claim of age discrimination. Ordinarily, if a plaintiff is trying to raise an inference of discrimination, he need only point to a similarly situated individual outside his protected class. For example, if an African American alleges that he was not hired because of his race, he can point to a white individual in order to raise an inference of race discrimination. But if a 55-year-old wants to show that he was not hired because of his age, can he point to a 54-year-old who was not hired? Although a 54-year-old comparator would obviously be younger, common sense tells us that a decisionmaker is unlikely to treat a 55-year-old worse than a 54-year-old because of a one-year age difference. Therefore, the mere fact that the favored individual is younger is not enough by itself to raise an inference of age discrimination. As a result, courts require that the comparator be "substantially" younger. Exactly what it means to be "substantially" younger is a subjective determination that is largely open to debate. However, the Ninth and the Seventh Circuits have concluded that a 10-year age difference is presumptively substantial.
The converse is that an age difference of less than 10 years is presumptively insubstantial, though this presumption can be overcome through other evidence that the employer was motivated by age discrimination. In France v. Johnson, 795 F.3d 1170 (9th Cir. 2015), John France, who was a 54-year-old border patrol agent when he was denied a promotion, alleged that he had established a prima facie case of age discrimination where the defendant had promoted four younger comparators. Although the comparators were an average of only 8 years younger than France, he had also presented evidence that the employer had explicitly expressed a preference for promoting younger agents and that an official had repeated retirement discussions with him shortly before the positions were advertised, even though France was not personally inclined to retire. Thus, although the 8-year age gap was presumptively insubstantial, France overcame that presumption.
By contrast, in the instant case, the court concluded that Braaten did not overcome the presumption that his comparator was not substantially younger "'by producing additional evidence to show that the employer considered his . . . age to be significant.' Instead, he admitted that Newmont never discriminated against him before his termination; that no one involved in his termination made any age-related comments; and that he did not make an internal complaint of age discrimination during his termination, even though he knew he could."
Interestingly, the individual who replaced Braaten was 9.5 years younger. Although less than 10 years, it's pretty close, and it seems really unlikely to me that a decisionmaker would engage in age discrimination if a comparator is 10 years younger but not if he is 9.5 years younger. Of course, you could further reason that if 9.5 years is enough, then so is 9 years; if 9 years is enough, then so is 8.5 years, and so on. (See this discussion of the sorites paradox.) Rather than stop at the prima facie case, however, the court also determined that Braaten failed to establish that the employer's asserted reason for firing him was pretextual. So even if the individual who replaced Braaten was "substantially younger," there was still insufficient evidence to establish unlawful age discrimination.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.