“... it makes little sense to require plaintiffs to demonstrate that they submitted an application when an employer declines to solicit applications and does not announce that a position is available.”
Reversing summary judgment against the ADEA and FEHA claims of three former Circle K employees who alleged they were not given the opportunity to apply for a regional director position because of their age, the Ninth Circuit explained that their failure to submit an application where there was no opportunity to do so did not weaken any inference of age discrimination. The court also found sufficient evidence of pretext to rebut the company’s assertion it selected the younger candidate because he was the only person to express interest in the job and his prior experience made him uniquely suited for the role (Caldrone v. Circle K Stores Inc., No. 24-1432 (9th Cir. Oct. 3, 2025)).
As dealer business managers (DBMs) for Circle K, the three employees, among other things, assisted fuel station operators by providing advice on pricing, customer service, and station appearance. All three received strong performance reviews and earned company awards for their work and all three were in line for a promotion to a regional director position in which they had all expressed interest.
No applications solicited. When a position became available in 2020, however, the company, rather than solicit applications, instead chose an individual who had previously served as a regional director and,...
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