Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—9th Cir.: Circle K employees who allege company handpicked younger candidate revive age bias claims, (Oct 6, 2025)

By Kathleen Kapusta, J.D.

“... 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, before that, as a DBM. At that time, the employees were 54.4, 55.8, and 56.9 years old and the selectee was 45.2 years old.

Lower court proceedings. Alleging age discrimination, the employees sued Circle K under the ADEA and FEHA and the district court granted summary judgment to their employer.

Qualified for the position. Addressing on appeal the district court’s conclusion that the employees could not show they were qualified for the regional director position because they did not apply for it, the Ninth Circuit acknowledged that “the language in some of our cases suggests that the plaintiff must apply for the position in question.” But while that makes sense in many cases, the court observed, “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.”

Here, observed the court, the employees contended that Circle K did not accept applications for the regional director position because it wanted to handpick a younger candidate. Moreover, Circle K conceded that it did not seek applications, arguing instead that there was no need to because the selectee’s unilateral move was a “decision that made perfect business sense” for it.

Explaining that it did not matter why Circle K did not open the position to applications, the court pointed out that the ADEA does not require that an employer solicit applications or use any specific process in deciding whom to promote.

Rather, at the first step of the McDonnell Douglas inquiry, the court observed, “the question is simply whether the plaintiff has established that the employer took actions that, if inadequately explained, give rise to an inference of age discrimination.” If a plaintiff had no way to submit an application, the failure to do so does not weaken any inference of age discrimination created by the other elements. Because Circle K did not give the employees an opportunity to apply for the job, they established that they were qualified for that position.

Substantially younger. Circle K next argued that because the youngest employees was only 9.3 years younger than the selectee, he was not substantially younger for purposes of establishing the fourth component of the prima facie case. Although the court acknowledged that 10 years is the presumptive threshold for a substantial age difference, it noted that a plaintiff can overcome that presumption by “producing additional evidence to show that the employer considered his or her age to be significant.”

And here, said the court, one of the employees claimed that the executive who allegedly chose the selectee told him he was “out of touch” and “too old for this business” after the employee told the executive he was 56. That executive also allegedly encouraged the employee to think about retiring. There was also evidence another individual, who had previously served as a regional director, stated that the executive’s boss “press[ed] [him] to remove older employees for no business reasons.”

In addition, according to another of the employees, that same individual told her the executive’s boss and the executive ‘wanted only younger people with MBAs.” This evidence, said the court was sufficient to create a fact issue as to whether Circle K considered age in general to be significant in making promotion decisions and thus the employee established a prima facie case of age discrimination.

Pretext. The court also found a triable fact issue as to whether Circle K’s proffered reason for choosing the selectee was pretextual—he was the only person to express interest and was uniquely suited for the role. First, said the court, there was evidence the executive who allegedly chose the selectee made ageist comments to older employees, expressed a desire to promote younger candidates, and encouraged older employees to retire. While the district court determined that the employees failed to show the executive was involved in choosing the selectee, the appeals court pointed to evidence it was Circle K’s policy for the vice president to whom the regional director would report to select that regional director and when the selectee was chosen, the executive was the VP to whom the selectee would report.

Performance. In addition, there was evidence sufficient to cast doubt on the quality of the selectee’s work performance at Circle K, including the declaration from the former regional director that the selectee’s performance in that role was woefully subpar, that he met with only 10 of the 231 DBMs in his region, and that while regional directors are expected to visit each state in their region at least quarterly, he traveled to two of the states in his region only once in more than a year.

The former regional director also stated that the selectee, who had been his direct report, was “timid and lacking confidence,... interpersonal skills, industry knowledge,... entrepreneurial vision, [and] general leadership skills,” that his productivity scores put him in the 30th percentile of his DBM peer group, and that based on his performance, he should have been disqualified from promotion under the company’s policies. While the district court dismissed this evidence as nothing more than the former regional director’s opinion, “that opinion,” said the appeals court, “was based on objective performance metrics—metrics that a jury could infer that Circle K management likely knew about.”

Policy deviation. Finally, the court noted evidence Circle K deviated from policy when it decided not to advertise the position including four declarations stating that when a position became available, Circle K would inform its employees of the vacancy either through email or its intranet. Because it was undisputed Circle K knew about the employees’ interest in a promotion, a jury could infer that this deviation was an attempt to prevent them from applying for the role, said the court, finding that this would undercut the company’s explanation for choosing the selectee. Accordingly, the court reversed the lower court’s grant of summary judgment to Circle K.

The case is No. 24-1432.

Judge: Miller, E.

Attorneys: Joseph S. Klapach (Klapach & Klapach) and Shelly D. McMillan (McMillan & Herrell) for Brian Caldrone, Joseph Celusta, and Kathleen Staats. Maria C. Rodriguez (McDermott Will and Emery) for Circle K Stores Inc. and Cross America Partners, LP.

Companies: Circle K Stores, Inc.; Cross America Partners, LP

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