F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O H N M. F R A N C E , Plaintiff-Appellant
,

v

.

J E H J O H N S O N , * Secretary
, Department of Homeland Security
,

Defendant-Appellee

. N o. 13-15534

D.C. No. 4:10-cv-00574- J GZ

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na J ennifer G. Z ipps, District J udg e, Presiding

Arg ued and Submitted J une 9, 2015—San F rancisco, California

F iled Aug ust 3, 2015

B efore: B arry

G. Silverman, Ronald M. Gould, and Andrew D. Hurwitz
, Circuit J udg es.

O pinion by

J udg e Gould

* Jeh J o h n so n is su

b stitu ted f o r h is p red ecesso r, J an et Nap o litan o , as Secretary o f th e Dep artm en t o f Ho m elan d Secu rity
, p u rsu an t to Fed eral Ru le o f A pp ellate P ro ced u re 4 3 (c).F R A N C E V

. J O H

N S O N 2

SUMMARY * *

Age Discrim ination in Em ploym ent Act

The panel reversed the district court’s summary judg ment in favor of the United States Department o f Homeland S ecurity in a

n action by a border patrol ag ent al l e gi n g violation of the Ag e Dis crimination in Employ ment A ct (“ADEA”).

The p laintiff a l l e g ed that the ag e ncy ’s decision to not promote him w as ag e d iscrimination in violation of the ADEA.

The panel held that the plaintiff established a p rima facie

case o f ag e d iscrimination. Specifically
, the panel adopted
t h e Seventh Circuit’s approach which held that an age difference of less than ten y ears between the p laintiff and the replacements creates a rebuttable presumption that the ag e difference was insubstantial. The panel co n cluded that the plaintiff, althoug h l e s s t h an ten y ears o lder than his replacements, established a pri m a f acie case of ag e discrimination by showing that the ag ency considered ag e in
g eneral to be sig nifican t i n making its promotion d ecisions, and that the T ucson Chief Patrol Ag ent considered plaintiff’s
ag e specifically to be pe rt i n ent in considering plaintiff’s promotion.

The panel ag reed with the district c o u rt’s conclusion that the ag ency

articulated leg itimate, n ondiscriminatory reasons

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.F R A N C E V

. J O H

N S O N 3

for not selecting plaintiff, namely
, that plaintiff’s qualificatio n s did not meet the leadership a nd judg ment required of the GS-15 positions.

T h e p a nel held that the district court erred in g rant i n g summary judg ment, and in finding that plaintiff did n ot show

a g enuine dispute of material fact on whether the a g e ncy ’s nondiscriminatory reasons were pretex tual. Specifically
, the panel held that there was a g enuine dispute of material fact a s to whether the Chief Patrol Ag e nt influenced or was involved in the hiring decisions o f the GS-15 positions, d espite that he

was n ot the final decisionmaker. The p anel also held that the district court e rred in finding that the Chief Patrol Ag ent h ad

a limited role in the decisionmaking process. F inally
, t he panel held that the district court erred in not considering the Chief Patrol Ag ent’s retirement discussions with plaintiff in assessing whether the articulated nondiscriminat ory reasons were pretex tual.

COUNSEL

J e f f r ey H. J acobson (arg

ued), J acobson L aw F irm, Tucson, Ariz ona, for Plaintiff-Appellant.

Robert L

. Miskell (arg

ued), Assistant United States Attorney
, Appellate Chief, J ohn S. L eonardo, Uni t e d States Attorney
, District o f Ar iz o na, Tucson, Ariz ona, for D efendantAppellee.F R A N C E V

. J O H

N S O N 4

OP INION

GOUL D, Circuit J udg e :

J ohn F rance appeals the district c ourt’s entry of summary judg ment in favor of the United States Department o f Homeland Security in this a c tion alleg ing violation of the Ag e Disc rimination in Employ ment Act (“ADEA”). 1 W e review a g r ant of summary judg ment de novo

. See Pac. Shore Props., LLC v

. City of Newport B e ach
, 730 F .3d 1142, 1156 (9th Cir. 2013). V iewing the evidence in the lig h t most favorable to F rance, the non-mo v i ng party , we must decide

w h ether there are any g enuine disputes of material fact a nd whether the d i s t rict court correctly applied the substantive l a w

. See Olsen v. Idaho St. Bd. of Med.
, 363 F .3d 916
, 9 2 2 (9th Cir. 2 004). B ecause t h ere are g enuine disputes o f material f

act and the district court e rred in apply ing our precedents, we reverse and remand for further proceeding s.

I

F rance is a border patrol ag ent assig ned to the T u cson Sector o f B order Patrol, an ag ency o f the United States Department of H o meland Security

. I n March 2007, the

n e w l y appointed Tucson Sector Chief Patrol Ag ent, Robert Gilbert, established a p ilot prog ram named “Architecture for Success,” which split Ass i stant Chief Patrol Ag ents (“ A C P A ” ) i n t o two categ ories: operations and administration. ACPAs in a dmi n istration w ould be assig ned a pay g rade o f GS-14, and ACPAs in o perations a pay g rade of GS-15.

1 T h e d istrict co u rt en te r e d s u m m ary j u d g m en t o n Fran ce’ s ag e d iscrim in atio n an d retaliatio n claim s, b u t Fran ce o n ly ap peals th e j u d g m en t o n

h is ag e d iscrim in atio n

claim

.F R A N C E V

. J O H

N S O N 5

B efore the pilot prog r am, all ACPAs, including F rance, were at the GS-14 pay

g rade.

F our G S-15 ACPA positions w e r e c reated as a result o f the pilot prog ram, and a v a c a n c y a nnouncement for these positions was posted i n J anuary 2008. Twenty -four elig ible candidates a

pplied. T h e applicants’ ag es rang ed from 38 to 54 y ears, and F rance, 54 y e ars o ld at the time, w as the oldest. The selection process commenced by ranking the applicants b y t heir scores from the B order Patrol Ag ent Compete n c y B ased Promotional Assessments. G ilbert then invited twelve candidates for interviews in W ashing ton, D.C.

The panel of interviewers consisted of Chief Patrol Ag ents Gilbert, Vitiello, and F isher. After the interviews, the panel selected six top-ranked candidates f o r f inal

c o n s i d e r a t i o n ; Fr a n c e wa s n o t s e l e c t e d

. G i l b er t recommended four of the six to Chief B order Patrol Ag ent David Ag uil ar , w ho in turn recommended the same four candidates to Deputy Commissioner J ay son Ahern. W hen the selection was made, F rance was 54 y ears o ld, and the four

se l e c t e d candidates, all of whom were in the top-ranked
g roup, were 44, 45, 47, and 48 y ears old.

I n September 2010, F rance sued the ag ency , alleg ing that the ag e ncy ’ s decision to not promote him was ag e discrimination in violation of the ADEA. After discovery
, the
age n c y moved for summary judg ment and offered nondiscriminatory reasons for not promoting F rance. Gilbert said that Fr a n ce lacked the leadership and judg ment for the GS-15 positions. Ag u ilar g ave six reasons why he d i d not recommend promoting F rance, in c l u ding F rance’s lack o f leadership, flex ibility , and innovation.F R A N C E V

. J O H

N S O N 6

I n o pposition to the ag ency ’s motion for summary judg me nt, F rance produced evidence to show that the
ag ency ’s nondiscrim i n atory reasons were pretex ts o f discrimination. The sa l i ent e vidence w as both d irect a nd

c ircumstantial: F irst, F r a n ce declared under the penalty o f perjury th a t i n a staff meeting
, Gilbert ex pressed his preference for “y oung , d y n amic ag e n ts” to staff the G S-15 positions. ACPA Alfred Salacup c onfirmed that he had heard this comm ent from G ilbert. Second, F rance declared that Gilbert had repeated r etirement discussions with h im, despite F rance’s clear indications that he did n ot want to retire. F o r

ex a mple, during a m e eting in J une 2007, Gilbert asked if F rance was interested i n teaching firearms as a “rehired annuitant” after retirement, but F rance said he did not want to retire. A few months later, Gilbert ag ain asked what F rance wanted to d o, and F rance said that he “was not g oing to retire and that [he] w as g oing to apply for t h e G S 1 5 positions.” F rance recalled that Gilbert had responded that if he were in F rance’s position, he would r etire a s soon as possible. T h ird, Fr a nce offered testimony from ACPAs Nicley and Salacup about Chief B order Patrol Ag e nt Ag uilar’s preference t o promote y oung er, less ex perienced ag ents.

The district c ourt concluded that althou g h F rance established a prima facie c ase of ag e d iscrimination, he did
not demonstrate a g e nuine dispute of material f a ct o n the
ag ency ’s nondiscriminatory reasons for not sel e c ting him. The district court g ranted summary judg ment in favor of the
ag ency . F rance timely appeals.

II

The A DEA makes it unlawful for a n emp l oy er to discriminate “because o f [ an] individual’s ag e.” 29 U .S.C.F R A N C E V

. J O H

N S O N 7

§ 6 23(a)(1). The ADEA protects federal employ ees a n d applicants for federal employ ment w h o a r e at least 40 y ears of ag e. S ee id. §§ 631(a), 633a(a). I n deciding a motion for
summary judg ment, a c ourt should n o t weig h the e vidence o r determine the truth o f th e m a t t e r; it should o n ly determine whether there is a g enuine d ispute o f fact for trial. See AbdulJabbar v. Gen. Motors Corp.
, 8 5 F

. 3d 4 0 7, 410 (9th Cir. 1996). Summary judg ment is i m p roper if a reasonable jury could find by

a preponderance of the evidence that F rance is entitled to a verdict in h is fav o r. S ee Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986).

W h en a plaintiff opposing summary judg ment pres ents direct evidence of a discriminatory motive, we do not assess the direct evidence in the b urden-shifting framework set forth in McDonnell Douglas Corp. v. Green
, 411 U .S. 7 92, 802 (1973). See Enlow v

. Salem-Keizer Y ellow Cab Co.
, 389 F .3d 802, 812 (9th Cir. 2004). “Direct e vidence, in the contex t o f

an ADEA claim, is defin e d as evidence of conduct o r statements by p ersons involved in the decision-making process that may

be viewed as directly

reflecting

the alleg ed discriminatory attitude

. . . sufficient to permit the fact finder
to infer that that at t i t u de was more likely than not a motivating factor i n the employ e r ’s decision.” Id. (internal quotation marks omitted). D irect evidence, which standing alone can de f

e a t summary judg ment, must be evidence d i r ectly tied to the adverse employ ment decision. See, e.g

. , Trans W orld Airlines, Inc. v. Thurston
, 469 U.S. 111, 121 (1985) ( finding direct eviden ce of a g e discrimination when the method of transfer avail a b l e to a disqualified captain depends o n his ag e); E

zell v

. P otter , 400 F .3d 1041, 1051 (7th Cir. 2 005) (finding direct evidence when the employ er told a

new hire that the y intended “to g et rid of o lder carriers a nd replace them with y oung er, faster carriers”); Enlow
, 389 F .3dF R A N C E V

. J O H

N S O N 8

at 812 (finding direct evidence of ag e discrimination when a
tax i d r i v e r 73 y ears old was terminated because the
company ’s insurance policy did not cover employ ee s o lder than the ag e of 70); Am. Ass’n of Retired Persons v

. Farmers Grp., I nc. , 943 F .2d 9 9 6, 1000 n.7 (9th Cir. 1 991) (noting that the McDonnell Douglas framework i s i napplicable “when a [ pension plan] p r ovision is discriminatory on its face”). I n contrast, stray remarks not directly tied to the d ecisionmaking proces s ar e not direct evidence capable of d efeating
summary judg ment

. S

e e Merrick v

. Farmers I ns. Grp.
, 892 F .2d 1434, 1438 (9th Cir. 1990).

The district court co n c l u d ed that F rance did n ot present direct evidence to e stab l i s h a n inference of ag e discrimination. This is a c lose q ues t i o n

. Gilbert’s repeated retirement discussions with F rance are not d i rect evidence showing that Gilbert w ould not consider F rance for the G S-15 position, b u t r a

t h e r c i r cumstantial evidence showing Gilbert’s bias in h is decisionmaking process. On th e o t h e r h and, the
statement b y Gilbert about his preference for “y oung , dy namic ag ents” to staff the GS-15 po s i tions probably g oes bey ond a stray remark, see Ezell
, 400 F

. 3d at 1051, althoug h standing alone this evidence would be thin support to c reate

a g enuine dispute of material fact. I n this case where F rance presented both some direct evidence and some circumstantial evide n c e , it is most appropriate to c onsider the propriety o f
summary judg ment under the Mc D o n n e l l Do u g l a s framework. See Shelley v. Geren
, 6 66 F .3d 599, 607 ( 9th Cir. 2012); Enlow , 389 F .3d at 812.F R A N C E V

. J O H

N S O N 9

III

A

Under the McDonnell Douglas f r a mework, a p laintiff
must carry the initial b urden to establish a prima facie case that creates an inference o f discrimi n a t ion. McDonnell Dougla s , 411 U.S. at 802. I f the employ ee establishes a prima f acie case, an inference of discrimination arises a nd the burden shifts to the employ er to p rodu ce a leg itimate, nondiscriminatory reason for its employ ment a ction. Id. I f the employ e r does so, the burden shifts back to the employ ee to prove that the employ er’s ex planation is a pretex t for discrimination. I

d

.

W e first address whether F rance has established a p rima facie case of ag e discrimination. “I n a failure

- t o-promote
case, a p laintiff may establish a prima facie case o f discriminat i o n i n violation o f the A DEA by producing evidence that he or she w as (1) a t leas t forty y e ars old, (2) qualified for the position for w hich an application was submitted, (3) denied the position, and (4) the promotion was g iven to a substantially y o ung er person.” Shelley
, 666 F .3d
at 608. T he ag ency does not dispute that t h e first three
prong s were shown, but contends that the fou r t h prong was not satisfied because the selected ACPAs were not substantially

y oung er than F r ance.

At the time o f the promotion decisions, F rance was 54
y ears old and the four selec t ed A C P As were 44, 45, 4 7, a nd 48 y ears old, so the a verag e a g e difference between F rance and the selected ACPAs was eig ht y ears. W ere the eig ht-y e ar ag e difference all the ev i d e n c e before us, it would not be sufficient to satisfy the f

ourth prong

. A majority o f c i r c uitF R A N C E V

. J O H

N S O N 10

courts interpreting the fourth prong have held that a n age difference o f less than ten y ears, without more evidence, is insufficient to make a p rima facie case of ag e discrimination. S ee Grosjean v. First Energy Corp.
, 349 F .3d 332, 3 3 8

– 3 9 (6th Cir. 2003) (collecting cases from various circuits). The Seventh Circuit has held that an ag e d ifference of l e s s t h an ten y ears creates a rebuttable presum p t ion that the ag e differenc e i s insubstantial. H artley v. W

isc. Bell
, 124 F .3d 887, 893 (7th Cir. 1997).

W e ag ree that it is a r easonable and workable rule, so we adopt the Seventh Circuit’s rebuttable p resumption approach. W e h o ld that an averag e ag e difference of ten y ears or more between the plaintiff and the replacements will be
presump t i vely substantial, whereas an ag e difference of less than ten y ears will b e presumptively insubstantial. 2 Id. Here, the averag e ag e difference b e tween F rance and the selected ACPAs is eig ht y ears, w hich is p resumptively i n substantial.

B u t our a naly sis does n ot end there. A pl aintiff w ho is
not ten y ears or more older than his or h er replacements can rebut the p resumption by producing additi o nal evidence to show that the employ e r c o nsidered his o r her ag e to be sig nificant. Id. T h e plaintiff can produce either direct o r circumstantial evidence to show that the employ er considered
ag e to be a sig nificant factor.

2 W e h av e p rev io u sly ap p lied th is p resu m p tio n an d co n clu d ed th at a 9 .5
y ears’ av erag e ag e d if

f eren ce b etw een t

h e w o rk ers h ired an d th o se laid o f f

w as in su f f i cien t to estab lish a prim a f acie case o f ag e d iscrim in atio n

. Dia z

v. Ea g le Pro d

u ce Ltd

. P’sh ip
, 5 2 1 F.3 d 1 2 0 1, 1 2 09 (9 th C ir. 2 0 0 8 ) (citin g Ha rtley , 1 24 F.3 d at 8 9 3 ).F R A N C E V

. J O H

N S O N 11

F rance declared under penalty of perjury that Chief Gilbert ex pl i c i tly ex pressed a preference for promoting
y oung er ag ents. ACPAs Nicley a n d Salacup also t es t i fied that Chief B order Patrol Ag ent Ag uilar preferred to promote “y oung er, less ex perienced ag ents.” F rance further declared that Chief Gilbert had r e peated retirement discussions with him soon before the posting of the G S-15 positi o n s , in spite of F r ance ’ s p e r sonal inclination not to retire. I n the total circumstances presented o pposing summary judg ment, we conclude that F rance, althoug h less than ten y ears older than his rep l a c e m ents, has e stablished a prima facie case of ag e discrimination by showing that the ag e n c y considered ag e in
g eneral to be sign i f

i cant in making its promotion d ecisions,

a nd that Gilbert considered F rance’s ag e specifically to b e pertinent in considering

F rance’s promotion.

B

The ag e ncy contends that it decided n o t t o promote F rance because F rance’s qualifications did not meet the leadership and judg ment required for the G S -1 5 p ositions. Gilbert stated that F rance had a big mouth and did not know “when to turn it on or off,” and these weaknesses c aused him
to f ail the interview. Ag uilar g a v e six reasons why he did not

r e c o mmend F rance to Chief Ahern, including F rance’s lack of leadership, flex ib i l i t y , and innovation. F rance d id not challeng e the leg itimacy of the ag ency ’s nondiscriminatory reasons in his opening brief, and arg uments not raised in the opening brief are waived. Smith v. Marsh
, 194 F. 3 d 1 0 4 5
, 1052 (9th Cir. 1 999). W e ag ree w ith the district court’s conclusion that the ag e ncy h as a rticulated leg itimate, nondiscriminatory

reasons for not selecting

F rance.F R A N C E V

. J O H

N S O N 12

C

W e come to the c r

ux of this case. Once the ag ency has articulated leg itimate, n ondiscriminatory reasons for its decision, as it did here, the burden sh i f t e d t o F rance to raise

a g enuine dispute of mate r i a l fact as to pretex t to avoid
summary judg ment. See W allis v. J.R. S

implot Co.
, 26 F .3d 885, 890 (9th Cir. 1994). A plaintiff asserti n g a ge discrimination can “demonstrate pretex t in either of two way s: (1) d i r e ctly
, by showing that unlawful discrimination

more likely than n o t motivated the employ er; o r (2) indirectly
, by s h o w ing that the employ e r’s p roffered

ex p lanation is unworthy of credence because it is internally inconsistent or otherwise not believable.” Earl v

. Niels en Media Research, Inc

. , 658 F .3d 1108, 1112–13 (9th Cir. 2011). F rance’s direct eviden c e, standing alone, is insufficient to defeat the a g ency ’ s m otion for summary judg ment. W hen the plaintiff has some d irect evidence but also must rely o n circumstantial evidence to show pretex t, we treat direct and circumstantial evidence alike, Desert Palace, Inc. v. Costa
, 539 U.S. 90, 100 (2003), a nd we consider both ty pes of evidence cumulatively
, Raad v. F a i r b anks N. Star Borough Sch. Dist. , 323 F .3d 1185, 1194 (9th Cir. 2003).

W e have said that the c ircumstantial evidence relied on b y the p l a i n tiff must be “ specific” and “substantial.” See Goodwin v. Hunt W

esson, Inc.
, 150 F .3d 1217, 1222 (9th Cir. 1998). T here i s s ome question whether that distinction for circumstantial evidence is va l id after the Supreme Court’s Costa decision which placed direct and circumst antial evidence on a

n equal footin g

. S

e e Costa
, 539 U.S. at 100; Cornwell v. Electra Cent. Cred i t Union
, 439 F .3d 1018, 1029–30 ( 9 t h Cir. 2006). I ndeed, this “specific a nd substantial” standard “is temper e d b y our observation that aF R A N C E V

. J O H

N S O N 13

p l a i n tiff’s burden to raise a triable issue of pretex t is hardly

an onerous o n e. ” Earl
, 6 58 F .3d at 1 1 13 (internal citations and quotation marks omitted). W e h ave repeatedly h e ld that it should not take much for a plaintiff in a discrimination case to overcome a summary judg ment motion. See, e.g. , Nigro v

. S e a r s , R oebuck & Co.
, 7 84 F .3d 495, 499 (9th Cir. 2015); Diaz
, 521 F .3d a t 1207; Da v i s v. Team Elec. Co.
, 520 F .3d 1080, 1089 (9th Cir. 2008); Metoyer v. Chassman , 504 F .3d 919, 939 (9th Cir. 2007); Do m i n g u e z-Curry v. Nev. Transp. Dep’t
, 424 F .3d 1 027, 1042 (9th Cir. 2005); Chuang v. U niv. of Cal. Davis, Bd. of Trustees
, 225 F .3d 1115, 1124 (9th Cir. 2000). “ This is because the ultimate question is one that can only be r esolved thro u gh a searching inquiry —one that is
most appropriately conducted b y a f a c tfinder, upon a full record.” Chuang
, 225 F .3d a t 1124 (internal quotation marks omitted).

The district court concluded that Gilbert’s discriminatory
statements were insufficient to create a ge n u ine d ispute o f material f act because Gilbert had a limited role in the ultimate hiring decision. The district court erred in two r espects. F irst, as a matter of law, to create a g e n u i n e dispute o f material fact on pretex t, a speaker o f d i s criminatory
statements need not be the f inal d ecisionmaker of an employ ment decision. See, e.g. , Poland v. Chertoff
, 494 F .3d 1174
, 1 1 8 2 (9th Cir. 2 0 07); Dominguez-Curry
, 424 F .3d at 1039–40; Mondero v. Salt R iver Project
, 400 F .3d 1207, 1213 (9th Cir. 2005).

I n Poland
, referring to the “cat’s paw metaphor,” we h eld that even if a subordinate employ ee with bias was n ot the final de c i s i onmaker, the plaintiff c an establish a causal link by proving that “the biased subordinate influenced o r was involved in the deci s ion or decisionmaking process.”F R A N C E V

. J O H

N S O N 14

494 F .3d a t 1182. Here, F rance produced evidence showing Gilbert’s influence and substantial involvement in the hiring decisions, including (1) that Gilbert was the p erson w ho created the G S

- 1 5 p ositions in the f irst place; (2) that other interviewers deferred to Gilbert b ecause he wi l l be supervising the promoted ACPAs; and (3) that Gilbert recommended the f

our final ists to Chief Ag uilar, who then recommended the same p eople to D eputy Commissioner Ahern. Even thoug h Ag u ilar and Ahern had the authority to chang e the finalists recommended by Gilbert, they did not do
so, and in the total circumstances G ilbert’s recommendations had substantial influence on the decision made, because both Ag uilar and Ahern deferred to Gilbert’s r ecommendation. A reasonable jury could in f e r that Gilbert—the subordinate employ e e with a d iscriminatory ani m u s

— w a s involved in a

nd influenced the hiring decisions. 3 W e conclude that there is a ge n u ine dispute of material f act as to whether Chief Gilb er t influenced or was involved in the hiring decisions of the GS15 positions, despite that he was not the final d e cisionmaker.

Second, the district court erred in c oncluding that Gilbert had a limited role in the hiring d e ci s i o n

. Gilbert was the
person who established the Architecture fo r Success pilot
prog r am and who created the GS-15 positions f o r which F rance a pplied. Also, Vitiello, one of the three interviewers, said that he deferred to G ilbert at the inter v i ew because Gilbert w o u l d be supervising the selectees in the T u cson Sector. Althoug h Ag u ilar h ad the authority to chang e the

3 In Po la n d
, 4 94 F.3 d at 1 1 8 2
, th e h ig h er lev el d ecisio n m ak er w as n o t b iased ; o n ly th e su

bo rd in ate w as b ia s e d

. T h e circu m stan ces h ere are stro n g er f o r Fran ce b ecau se th e h ig h er lev el d ecisio n m ak er, A g u ilar, w as also sh ow n to h av e so m e ag eist bias. A C P A s N icley an d Salacu p testif ied th at A g u ilar p ref

erred to p ro m o te y o u n g er, less ex p erien ced ag en ts.F R A N C E V

. J O H

N S O N 15

finalists selected by Gilbert, Ag uilar did n ot chang e them a nd deferred to Gilbert’s selection. A reasonable jury could infer that Gilbert’s r o l e i n the decisionmaking process was sig nificant a

nd influential. The district c ourt should v iew the

e v i dence and draw all inferences in the lig ht most favora b l e to F rance, the non-moving party ; the finding of fact, to the

ex tent it runs c ontrary to the inferences that c ould have been drawn in f

avor of F rance, i s i n a p p r opriate. S e e Zweig v

. Hearst Corp. , 594 F

. 2d 1261, 1264 n.3 (9th Cir. 1979). W e conclude that the di s t rict court erred in finding that Gilbert had a limited role in the decisionmaking process.

Also, the d istrict court did not c onsider Gilbert’s repeated retirement discus s i o n s with F r ance in assessing whether Gilbert’s articulat e d n ondiscriminatory reasons were pretex tual. Althoug h these retirement discussions s t a nding alone a re insufficient direct evidence of discrimination, the d i s t r i ct court erred in disreg arding this e vidence, which was presented with circumstantial evidence, f o r the purpose o f determining the a g ency ’ s pretex t. The timing o f the retirement d iscussions is sig nificant: The retirement talks occurred from J une to November 2007; the GS-15 positions

were posted a couple of months later in J anuary 2 008 and the promotion decisions were mad e i n J u ne 2008. The close
prox imity in time could allow a reasonable jury to find by a preponderance of the evidence that F rance’s n o n -selection based on g rounds other than ag e was pretex tual. The district
court may n o t weig h the evidence at the summary judg ment stag e but should focus on whether there are any triable issues

o f fact. See Taybron v. City & Cnty. of S.F.
, 3 41 F. 3 d 9 5 7
, 959 n.2 (9th Cir. 2 0 0 3). The d istrict c ourt erred in g ranting
summary judg ment resting on an erroneous application o f our precedents a

nd in finding that F rance did not show a g enuineF R A N C E V

. J O H

N S O N 16

dispute of materi al fact on w hether the ag e ncy ’s nondiscriminatory

reasons were pretex tual.

REVERSED and REMANDED.