The panel reversed the district court’s grant of summary judgment in favor of Circle K Stores, Inc., and remanded, in an employment discrimination action brought under the Age Discrimination in Employment Act and the California Fair Employment and Housing Act.

Three plaintiffs alleged that Circle K illegally denied them the opportunity to apply for, and ultimately secure, a promotion to West Coast regional director because of their age. Applying the McDonnell Douglas three-step burden-shifting framework, the district court concluded that plaintiffs failed to establish a prima facie case giving rise to an inference of discrimination because they did not apply for the regional director position. The district court concluded, alternatively, that at step two of the McDonnell Douglas analysis, Circle K offered a legitimate, nondiscriminatory justification for its decision, and at step three, plaintiffs did not establish a triable issue whether the proffered reason was a pretext for discrimination.

To establish a prima facie case of age discrimination, plaintiffs must demonstrate that (1) they were at least 40 years old, (2) they were qualified for the position they sought, (3) they were denied the position, and (4) the promotion was given to a substantially younger person. The panel held that to establish the second component, plaintiffs are not required to demonstrate that they submitted an application when, as here, their employer declines to solicit applications and does not announce that a position is available. The panel also held that, although ten 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.

Because all three plaintiffs therefore established a prima facie case, the panel proceeded to steps two and three of the McDonnell Douglas analysis. At step two, Circle K articulated a legitimate, nondiscriminatory reason for selecting another candidate to be West Coast regional director by asserting that he was the only person to express interest in the position, and his prior experience as the Southeast regional director made him uniquely suited for the role. At step three, however, plaintiffs presented enough evidence to create a triable issue on pretext, making summary judgment inappropriate.

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/10/03/24-1432.pdf