Workers Passed Over for Unadvertised Jobs Allege Age Bias

Takeaway: While employers are not required to advertise positions, failure to do so could create an inference of discrimination.

Employers that fail to advertise positions might face legal challenges when employees are passed over for promotion, as demonstrated by a 9th U.S. Circuit Court of Appeals ruling allowing an age discrimination case against Circle K Stores to proceed to trial.

Before 2020, the plaintiffs were employed as dealer business managers (DBMs) at Circle K Stores, a chain of convenience stores and fuel stations with nearly 10,000 North American locations. Among other responsibilities, DBMs assist fuel station operators by providing advice on pricing, customer service, and station appearance. DBMs report to regional directors who oversee particular geographic areas.

The plaintiffs were, by all accounts, exemplary DBMs. They received strong performance reviews and earned company awards for their work. Their performance put them in line for promotion to the regional director level, an opportunity in which they all expressed interest. At the time, the plaintiffs were 54, nearly 56, and about 57 years old, respectively.

Around January 2020, the position of West Coast regional director became available. Despite their impressive track records and indications of interest in promotion, the plaintiffs were not given a chance to apply for the position. Instead, without soliciting applications, Circle K chose a younger individual for the role. The selectee was 45 years old and had previously served as a southeast regional director and, before that, as a DBM.

The plaintiffs sued Circle K in state court for employment discrimination, claiming that Circle K denied them a promotion because of their age. Circle K removed the case to federal district court and moved to dismiss. Two claims survived Circle K's motion to dismiss: one under the federal Age Discrimination in Employment Act and one for age discrimination under the California Fair Employment and Housing Act.

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Circle K moved for summary judgment and the district court granted the motion. The district court held that establishing a "prima facie" case required the plaintiffs to show that they applied for the West Coast regional director position. Because they conceded that they did not apply, the district court determined that their claims failed. 

The district court also concluded that the plaintiffs could not establish a case because one of the plaintiffs was less than 10 years older than the selectee, which is an age gap too small to give rise to a presumption of discrimination.

The plaintiffs appealed to the 9th Circuit. 

On appeal, the court reasoned that it made little sense to require plaintiffs to demonstrate that they applied for a promotion when an employer declined to solicit applications and did not announce that a position was available. 

The court noted that the plaintiffs did not need to show that Circle K acted improperly in not soliciting applications. They only had to show that the employer took actions that, if inadequately explained, could give rise to an inference of age discrimination.

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Regarding the relatively small age gap, the 9th Circuit noted that 10 years is the presumptive threshold for a substantial age difference to be established. However, the court reasoned that a plaintiff could overcome that presumption by producing additional evidence to show that the employer considered age to be significant. 

In this case, the two older plaintiffs had submitted evidence of ageist statements by the Circle K executive who they alleged had chosen the selectee for promotion. Therefore, this evidence could overcome the presumption that an age difference of less than 10 years is not significant.

The court further noted that the plaintiffs produced evidence suggesting that Circle K’s decision not to advertise the West Coast regional director position was a deviation from a standard policy and that the selectee had a record that was not worthy of further promotion. According to the selectee’s supervisor, who provided a sworn declaration for the plaintiffs, the selectee had been a poor performer as a DBM and regional director. The supervisor also noted that the selectee failed to visit each state in his region at least quarterly. The 9th Circuit found that this declaration was admissible and not hearsay as ruled by the district court.

As a result, the 9th Circuit overturned the district court’s dismissal of the case at summary judgment and required the case to proceed to trial.

Caldrone v. Circle K Stores Inc., 9th Cir., No. 24-1432 (Oct. 3, 2025).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.