A job applicant who was allegedly told by a company official that he was “trying to find somebody younger” can pursue an age discrimination claim, a federal appeals court ruled Monday, overturning a lower court decision.
Elwyn Robinson, who was 60 at the time, unsuccessfully applied for a production supervisor position at Pittsburgh, Pennsylvania-based PPG Industries Inc.’s Mojave, California, facility, according to court papers in Elwyn Robinson v. PPG Industries Inc. and David Sebold.
Mr. Robinson sued paint supplier PPG in U.S. District Court in Pasadena for age discrimination and retaliation under California’s Fair Employment and Housing Act. The district court granted the company summary judgment and was partially overturned by a three-judge appeals court panel.
David Sebold allegedly told Mr. Robinson he was “trying to find somebody younger that he could develop into a role,” according to Monday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco.
“Viewed in the light most favorable to Robinson,” that statement “constitutes direct evidence of discrimination and creates a triable issue of fact as to whether ‘discriminatory animus’ affected the hiring decision,” the ruling said.
Mr. Robinson was also told by a third-party recruiter that Mr. Sebold was concerned about his being “too senior” for the role, the panel said.
“California courts have ruled that references to seniority do not necessarily mean age,” it said. “But in this case the phrase ‘too senior’ does not stand alone; there is other evidence in the record from which a trier of fact could conclude that Sebold actually meant too old,’” it said.
This includes an e-mail from the recruiter that suggests Mr. Sebold also consulted with PPG’s human resources office about Mr. Robinson being “too senior,” it said.
The panel affirmed the dismissal of Mr. Robinson’s retaliation charge, stating he could not show he was engaged in activities protected by the FEHA.
Attorneys in the case did not respond to requests for comment.
