On October 3, 2025, the Ninth Circuit issued an opinion reversing the district court’s decision granting summary judgment on an age discrimination lawsuit filed by three plaintiffs against Circle K. Circle K had won the case on summary judgment, with the district court’s opinion based largely on the fact that the three plaintiffs had not applied for the director position at issue and thus could not establish a prima facie case of age discrimination, because a necessary element of an age discrimination case of this kind is that the plaintiff must have applied for the position in question and had their applications rejected in favor of a substantially younger applicant. The Ninth Circuit rejected this reasoning, holding that the plaintiffs could not have applied for the position because it was never posted. If the failure to post was caused by age discrimination, then it would be illegal. The plaintiffs claimed that it was a departure from Circle K policy to fail to post the position before awarding an internal promotion. Because the Ninth Circuit concluded there was sufficient evidence that a jury might reasonably conclude that this was the case, it held that summary judgment for Circle K had been improper.
An interesting aspect of this case is that the age difference between the plaintiffs and the employee selected for the director role was less than 10 years. In the Ninth Circuit, an age difference of less than a decade is presumed to be insubstantial, but if there is additional evidence that age was a consideration in the employment decision at issue, then this presumption can be overcome. Here, each of the three plaintiffs signed a declaration attesting that they had personal knowledge of ageist statements by Circle K leadership they believed to be involved in the promotion of the younger employee. So far as the Ninth Circuit’s opinion shows, there was no evidence of ageist statements except the allegations of the plaintiffs themselves.
Employers should take note that plaintiffs can potentially get before a jury on a discrimination claim based on a younger employee’s promotion by arguing that their employer’s failure to post that position prior to awarding the promotion was discriminatory. Even if the employee awarded the position is only slightly younger, the claim may still survive if there is any evidence—whether generated solely by the plaintiff’s testimony or otherwise—of ageist tendencies related to the promotion.
Practical Takeaways
- Employers should evaluate their promotion practices and associated policies to determine whether the policies accurately reflect the actual promotion practices of the employer and are applied evenhandedly.
- If not, employers should determine whether their policies, practices or both should be amended.
- Employers should renew their efforts to document accurately and thoroughly the basis for employment decisions and for any departure from standard policy.
If you have any questions about this topic or would like additional information, please contact:
- Brian Sabey at (720) 282-2025 or bsabey@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
