Caldrone v. Circle K Stores Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN CALDRONE, an individual; No. 24-1432

JOSEPH CELUSTA, an individual;

D.C. No.

KATHLEEN STAATS, an

5:21-cv-00749-

individual,

GW-kk

Plaintiffs - Appellants,

OPINION

v.

CIRCLE K STORES INC., a Texas

Corporation,

Defendant - Appellee,

and

CROSS AMERICA PARTNERS,

LP, a Delaware Limited Partnership,

Defendant.

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted June 6, 2025

Pasadena, California

2 CALDRONE V. CIRCLE K STORES INC.

Filed October 3, 2025

Before: Andrew D. Hurwitz, Eric D. Miller, and Jennifer

Sung, Circuit Judges.

Opinion by Judge Miller

SUMMARY *

Employment Discrimination

The panel reversed the district court’s grant of summary

judgment in favor of Circle K Stores, Inc., and remanded, in

an employment discrimination action brought under the Age

Discrimination in Employment Act and the California Fair

Employment and Housing Act.

Three plaintiffs alleged that Circle K illegally denied

them the opportunity to apply for, and ultimately secure, a

promotion to West Coast regional director because of their

age. Applying the McDonnell Douglas three-step burden-

shifting framework, the district court concluded that

plaintiffs failed to establish a prima facie case giving rise to

an inference of discrimination because they did not apply for

the regional director position. The district court concluded,

alternatively, that at step two of the McDonnell Douglas

analysis, Circle K offered a legitimate, nondiscriminatory

justification for its decision, and at step three, plaintiffs did

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CALDRONE V. CIRCLE K STORES INC. 3

not establish a triable issue whether the proffered reason was

a pretext for discrimination.

To establish a prima facie case of age discrimination,

plaintiffs must demonstrate that (1) they were at least 40

years old, (2) they were qualified for the position they

sought, (3) they were denied the position, and (4) the

promotion was given to a substantially younger person. The

panel held that to establish the second component, plaintiffs

are not required to demonstrate that they submitted an

application when, as here, their employer declines to solicit

applications and does not announce that a position is

available. The panel also held that, although ten years is the

presumptive threshold for a substantial age difference, a

plaintiff can overcome that presumption by producing

additional evidence to show that the employer considered his

or her age to be significant.

Because all three plaintiffs therefore established a prima

facie case, the panel proceeded to steps two and three of the

McDonnell Douglas analysis. At step two, Circle K

articulated a legitimate, nondiscriminatory reason for

selecting another candidate to be West Coast regional

director by asserting that he was the only person to express

interest in the position, and his prior experience as the

Southeast regional director made him uniquely suited for the

role. At step three, however, plaintiffs presented enough

evidence to create a triable issue on pretext, making

summary judgment inappropriate.

4 CALDRONE V. CIRCLE K STORES INC.

COUNSEL

Joseph S. Klapach (argued), Klapach & Klapach PC,

Sherman Oaks, California; Shelly D. McMillan, McMillan

& Herrell, Los Angeles, California; for Plaintiffs-

Appellants.

Maria C. Rodriguez (argued), Amanda D. Murray,

Christopher A. Braham, and Elvira R. Kras, McDermott Will

and Emery LLP, Los Angeles, California; for Defendant-

Appellee.

OPINION

MILLER, Circuit Judge:

Plaintiffs Brian Caldrone, Joseph Celusta, and Kathleen

Staats are former employees of Circle K Stores, a chain of

convenience stores and fuel stations with nearly 10,000

North American locations. Plaintiffs sued Circle K for

employment discrimination, alleging that Circle K denied

them a promotion because of their age. The district court

granted summary judgment to Circle K. We reverse and

remand.

I

Before 2020, plaintiffs were employed at Circle K as

Dealer Business Managers (DBMs). 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.

CALDRONE V. CIRCLE K STORES INC. 5

Plaintiffs were, by all accounts, exemplary DBMs. They

each 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.

Around January 2020, the position of West Coast

regional director became available. Despite their impressive

track records and indications of interest in promotion,

plaintiffs were not given a chance to apply for the position.

Instead, without soliciting applications, Circle K chose Miko

Angeles for the role. Angeles had previously served as the

Southeast regional director and, before that, as a DBM. At

the time, Caldrone, Celusta, and Staats were 54.4, 55.8, and

56.9 years old, respectively. Angeles was 45.2 years old.

Plaintiffs sued Circle K in California state court. 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 of 1967 (ADEA), Pub. L. No. 90-202, 81

Stat. 602 (29 U.S.C. §§ 621 et seq.), and one for age

discrimination under the California Fair Employment and

Housing Act (FEHA), Cal. Gov’t Code §§ 12900 et seq.

Both claims were premised on the theory that Circle K

illegally denied plaintiffs the opportunity to apply for, and

ultimately secure, the promotion to West Coast regional

director because of their age. (As plaintiffs acknowledge,

there is only one position at issue here, so all three plaintiffs

could not have been promoted to it. That fact may affect the

jury’s determination of liability and any award of damages,

but it is not relevant to the issues before us.)

Circle K moved for summary judgment, and the district

court applied the three-step burden-shifting framework

6 CALDRONE V. CIRCLE K STORES INC.

established in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Under that framework, the plaintiff has the

initial burden of establishing a prima facie case giving rise

to an inference of discrimination. Id. at 802. If the plaintiff

carries that burden, the burden shifts to the employer to

proffer a legitimate, nondiscriminatory reason for its

decision. Id. If the employer does so, the burden shifts back

to the plaintiff to prove that the proffered reason is a pretext

for discrimination. Id. at 804.

The district court held that establishing a prima facie

case required plaintiffs to show that they applied for the

West Coast regional-director position. Because plaintiffs

conceded that they did not apply for the position, the district

court determined that their claims failed at step one. In doing

so, the district court rejected plaintiffs’ asserted justification

for their failure to apply: that Circle K did not call for

applications, as it had in the past. It concluded that plaintiffs’

evidence demonstrating that Circle K had a policy of

soliciting applications internally was inadmissible hearsay

and that, even if such a policy existed, there was no evidence

that Circle K’s deviation from that policy in this instance was

motivated by ageist animus. In addition, the district court

concluded that Caldrone could not establish a prima facie

case because he is only 9.3 years older than Angeles, an age

gap too small to give rise to a presumption of discrimination.

See France v. Johnson, 795 F.3d 1170, 1174 (9th Cir. 2015).

Although the district court’s step-one determinations

resolved plaintiffs’ claims, the district court also presented

an alternative analysis under the remaining steps of the

McDonnell Douglas framework. At step two, the district

court held that Circle K had offered a legitimate,

nondiscriminatory justification for its decision: that Angeles

was the only one to express interest in the position and that

CALDRONE V. CIRCLE K STORES INC. 7

his prior experience as the Southeast regional director made

him uniquely qualified.

The district court thus proceeded to the final step of the

McDonnell Douglas framework. To show pretext, plaintiffs

first pointed to evidence that George Wilkins, the Circle K

executive who they claim selected Angeles to be a regional

director, exhibited animus by disparaging older employees

because of their age and pushing them to retire. But the

district court dismissed that evidence as irrelevant because it

concluded that the evidence showing that Wilkins selected

Angeles was inadmissible hearsay.

Plaintiffs also attempted to show pretext by offering

declarations explaining that Angeles performed poorly as the

Southeast regional director and, before that, as a DBM,

which—if credited—would undermine Circle K’s

explanation that Angeles was uniquely qualified for the role.

The district court dismissed that evidence too, concluding

that it merely reflected the declarants’ “opinion” about

Angeles’s performance and was too speculative to create a

triable issue on pretext.

The district court entered judgment for Circle K, and

plaintiffs appealed. “We review a district court’s grant of

summary judgment de novo and, viewing the evidence in the

light most favorable to the non-movant, determine whether

there are any genuine issues of material fact and whether the

district court correctly applied the relevant substantive law.”

Teradata Corp. v. SAP SE, 124 F.4th 555, 572 (9th Cir.

2024) (quoting Honey Bum, LLC v. Fashion Nova, Inc., 63

F.4th 813, 819 (9th Cir. 2023)).

8 CALDRONE V. CIRCLE K STORES INC.

II

The ADEA makes it unlawful for an employer to

“discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of

employment, because of such individual’s age.” 29 U.S.C.

§ 623(a)(1). To show that an employer took an adverse

action “because of” age, “a plaintiff must prove that age was

the ‘but-for’ cause of the employer’s adverse decision.”

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). A

plaintiff can make such a showing using the three-part

burden-shifting framework established in McDonnell

Douglas. See O’Connor v. Consolidated Coin Caterers

Corp., 517 U.S. 308, 311 (1996); France, 795 F.3d at 1173.

A similar analysis applies to the FEHA claim. See Guz v.

Bechtel Nat’l, Inc., 8 P.3d 1089, 1113 (Cal. 2000)

(explaining that “[b]ecause of the similarity between state

and federal employment discrimination laws, California

courts look to pertinent federal precedent,” including

McDonnell Douglas, in FEHA age-discrimination cases).

Like the district court, we begin by assessing whether

plaintiffs established a prima facie case of age

discrimination. See McDonnell Douglas, 411 U.S. at 802. In

failure-to-promote cases, we have held that establishing a

prima facie case requires plaintiffs to demonstrate that

(1) they were at least 40 years old at the time, (2) they were

qualified for the position they sought, (3) they were denied

the position, and (4) the promotion was given to a

substantially younger person. See France, 795 F.3d at 1174;

Shelley v. Geren, 666 F.3d 599, 608 (9th Cir. 2012); see also

29 U.S.C. § 631(a) (limiting the protections of the ADEA “to

individuals who are at least 40 years of age”). There is no

dispute that the plaintiffs established the first and third

components.

CALDRONE V. CIRCLE K STORES INC. 9

The district court concluded that plaintiffs could not

establish the second component because they did not apply

for the West Coast regional-director position. We

acknowledge that the language of some of our cases suggests

that the plaintiff must apply for the position in question. For

instance, in Shelley, we articulated the second component as

requiring the plaintiff to show that he was “qualified for the

position for which an application was submitted.” 666 F.3d

at 608 (emphasis added). And in Steckl v. Motorola, Inc., we

held that a plaintiff established a prima facie case because

“[h]e was clearly within the protected class, had applied for

an available position for which he was qualified, and was

denied a promotion which was given to a younger person.”

703 F.2d 392, 393 (9th Cir. 1983) (emphasis added).

That requirement makes sense in many cases. If an

employer selects a candidate for promotion from a pool of

applicants, it is reasonable to infer that a plaintiff who fails

to put himself in the running has that failure—and not any

protected characteristic—to blame for not being promoted.

But the Supreme Court has explained that “the specification

. . . of the prima facie proof required from [a plaintiff] is not

necessarily applicable in every respect to differing factual

situations.” McDonnell Douglas, 411 U.S. at 802 n.13; see

also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575

(1978) (explaining, in a racial-discrimination case, that the

four-part prima facie case “was not intended to be an

inflexible rule”). And 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.

That is the lesson of Reed v. Lockheed Aircraft Corp.,

613 F.2d 757 (9th Cir. 1980). There, we reviewed the district

court’s grant of summary judgment to an employer in a sex-

10 CALDRONE V. CIRCLE K STORES INC.

discrimination case under Title VII of the Civil Rights Act

of 1964. See id. at 758–59. Reed brought a failure-to-

promote claim, alleging that Lockheed favored men when

evaluating candidates for promotion and selection for

training programs. See id. at 761. Lockheed argued that Reed

could not state a claim under Title VII because she “never

was personally denied admission to a training program or

denied promotion.” Id. at 761. But we described that as

“immaterial” because Reed alleged that employees at

Lockheed “did not apply for training or for promotion but

instead had to be sought out.” Id. We declined to penalize

Reed for failing to submit an application because

Lockheed’s system of promotion denied her “notice of an

opening.” Id.

So too here. Plaintiffs’ theory of the case is that Circle K

declined to accept applications for the West Coast regional-

director position because it wanted to handpick a younger

candidate. Circle K concedes that it did not seek

applications, asserting that it “decided there was no need to

open the [role] for applications, internally or externally,

because Angeles laterally moving into the West Coast

Regional Director position was a decision that made

business sense for Circle K.” As in Reed, Circle K’s decision

not to accept applications obviated plaintiffs’ obligation to

submit them.

Contrary to the district court’s understanding, it does not

matter why Circle K did not open the West Coast regional-

director position to applications. Plaintiffs need not show

that Circle K somehow acted improperly in not soliciting

applications. The ADEA does not require an employer to

solicit applications, or, indeed, to use any specific process in

deciding which employees to promote. At the first step of the

McDonnell Douglas inquiry, the question is simply whether

CALDRONE V. CIRCLE K STORES INC. 11

the plaintiff has established that the employer took actions

that, if inadequately explained, give rise to an inference of

age discrimination. See EEOC v. Metal Serv. Co., 892 F.2d

341, 348 (3d Cir. 1990); White v. City of San Diego, 605 F.2d

455, 458 (9th Cir. 1979). And if plaintiffs had no way to

submit an application—whatever the reason—their failure to

do so does nothing to weaken any inference of age

discrimination that the other elements of the prima facie case

create. Because there is no dispute that Circle K did not give

plaintiffs the opportunity to apply for the West Coast

regional-director position, plaintiffs have established the

second component of a prima facie case.

Although the parties agree that Celusta and Staats

established the fourth component of a prima facie case, the

district court held that Caldrone could not do so because

Angeles is only 9.3 years younger than Caldrone and

therefore is not “substantially younger” than him. O’Connor,

517 U.S. at 313; France, 795 F.3d at 1174. In France, we

held that “an average age difference of ten years or more

between the plaintiff and the replacements will be

presumptively substantial, whereas an age difference of less

than ten years will be presumptively insubstantial.” 795 F.3d

at 1174.

Although 10 years is the presumptive threshold for a

substantial age difference, a plaintiff can overcome that

presumption by “producing additional evidence to show that

the employer considered his or her age to be significant.”

France, 795 F.3d at 1174; accord Hartley v. Wisconsin Bell,

Inc., 124 F.3d 887, 893 (7th Cir. 1997) (“Ten years is a

reasonable threshold . . . . Yet the line we draw is not so

bright as to exclude cases where the gap is smaller but

evidence nevertheless reveals the employer’s decision to be

motivated by the plaintiff’s age.”). In France, the plaintiff

12 CALDRONE V. CIRCLE K STORES INC.

successfully rebutted the presumption with evidence that the

hiring manager “explicitly expressed a preference for

promoting younger [employees]” and “had repeated

retirement discussions with [the plaintiff] soon before the

posting of the [vacancy], in spite of [the plaintiff’s] personal

inclination not to retire.” 795 F.3d at 1174. That evidence,

we concluded, sufficed to show that the employer

“considered age in general to be significant in making its

promotion decisions, and that [the hiring manager]

considered [the plaintiff’s] age specifically to be pertinent in

considering [the plaintiff’s] promotion.” Id.

Caldrone produced similar evidence. Celusta declared

that George Wilkins—the Circle K executive who plaintiffs

assert chose Angeles—told him that he was “out of touch”

and “too old for this business” after he told Wilkins that he

was 56. Wilkins also encouraged Celusta to “start thinking

about retiring.” Thomas Maloney, who previously served as

the Midwest regional director, declared that Gerardo

Valencia—Wilkins’s boss—“press[ed] [him] to remove

older employees for no business reasons.” And Staats

declared that Maloney told her that Valencia and Wilkins

“wanted only younger people with MBAs.” That evidence

may or may not convince a jury that the ultimate promotion

decision was based on age, but for purposes of establishing

a prima facie case, it creates an issue of fact about whether

Circle K “considered age in general to be significant in

making its promotion decisions.” France, 795 F.3d at 1174.

We recognize that, unlike the plaintiff in France,

Caldrone has not offered evidence that Circle K “considered

[his] age specifically to be pertinent in considering [his]

promotion.” France, 795 F.3d at 1174. In France, however,

we did not consider whether such plaintiff-specific evidence

is required to overcome the presumption, much less hold that

CALDRONE V. CIRCLE K STORES INC. 13

it is. Id. Rather, we explained that “[t]he plaintiff can

produce either direct or circumstantial evidence to show that

the employer considered age to be a significant factor,” and

we described the nature of the evidence that the plaintiff

presented to explain our conclusion that his evidence was

sufficient. Id. In any event, Circle K has not argued that

France requires evidence at that level of particularity.

Instead, its position appears to be that Caldrone has not

provided any admissible evidence to overcome the

presumption that his 9.3-year age gap is insignificant. As

demonstrated above, that is incorrect. We therefore conclude

that Caldrone has established a prima facie case of age

discrimination.

Because all three plaintiffs established a prima facie

case, we proceed to step two of the McDonnell Douglas

framework, which requires Circle K to articulate a

legitimate, nondiscriminatory reason for selecting Angeles

to be the West Coast regional director. See 411 U.S. at 802–

03. As noted, Circle K asserts that it selected Angeles

because he was the only person to express interest in the

position and because his prior experience as the Southeast

regional director made him uniquely suited for the role.

Those are legitimate, nondiscriminatory rationales.

We therefore move to the final step of the McDonnell

Douglas framework, which requires plaintiffs to raise a

triable issue of fact whether a facially legitimate rationale

was pretextual. See 411 U.S. at 804. Plaintiffs may do so

“either directly by persuading the court that a discriminatory

reason likely motivated [the employer] or indirectly by

showing that [the employer’s] proffered explanation is

unworthy of credence.” Diaz v. Eagle Produce Ltd. P’ship,

521 F.3d 1201, 1212 (9th Cir. 2008) (quoting Snead v.

14 CALDRONE V. CIRCLE K STORES INC.

Metropolitan Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093–

94 (9th Cir. 2001)).

Plaintiffs have presented enough evidence to create a

triable issue on pretext. First, there is the evidence, recounted

above, that Wilkins made ageist comments to older

employees, expressed a desire to promote younger

candidates, and encouraged older employees to retire. The

district court deemed that evidence irrelevant because it

believed that plaintiffs had not produced any admissible

evidence showing that Wilkins was involved in the selection

of Angeles.

That was error. Maloney declared that it was Circle K’s

policy for the vice president to whom the regional director

would report to select that regional director. When Angeles

was selected to be the West Coast regional director, Wilkins

was the vice president to whom the new West Coast regional

director was to report. A jury crediting that evidence could

reasonably infer that Circle K followed its internal policy in

this instance, which would mean that Wilkins selected

Angeles. And if the jury also credited the evidence about

Wilkins’s ageist animus, it could reasonably infer that he

denied plaintiffs the opportunity to seek the West Coast

regional-director position because of their age.

Second, plaintiffs offered evidence that casts doubt on

the quality of Angeles’s experience at Circle K. Maloney

declared that Angeles’s performance as the Southeast

regional director was woefully subpar. According to

Maloney’s declaration, Angeles was responsible for 231

dealers as the Southeast regional director but managed to

meet with only 10. And although regional directors are

expected to visit each State in their region at least quarterly,

Angeles traveled to Florida and North Carolina only once in

CALDRONE V. CIRCLE K STORES INC. 15

more than a year. The situation, in Maloney’s telling,

became so bad that he was “forced to assist [Angeles] with

management of his region by managing some of his DBMs.”

Nor does it appear to be undisputed that Angeles

produced a record as a DBM that was worthy of promotion.

Maloney declared that as his direct report, Angeles was

“timid and lacking confidence, . . . interpersonal skills,

industry knowledge, . . . entrepreneurial vision, [and] general

leadership skills.” Angeles’s productivity scores put him in

the 30th percentile of his DBM peer group. So extreme was

Angeles’s underperformance that Maloney declared that he

ought to have been disqualified from promotion under Circle

K’s policies. The district court dismissed this evidence in a

footnote, characterizing it as nothing more than Maloney’s

“opinion.” Even so, that opinion was based on objective

performance metrics—metrics that a jury could infer that

Circle K management likely knew about.

Third, plaintiffs have produced evidence suggesting that

Circle K’s decision not to advertise the West Coast regional-

director position to its employees was a deviation from its

standard policy. Plaintiffs presented 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 is undisputed that Circle K knew

about plaintiffs’ interest in a promotion, a jury could infer

that this deviation was an attempt to prevent plaintiffs from

applying for the role. That would undercut Circle K’s

explanation that it chose Angeles because he was the only

person to express interest in the position.

The district court concluded that the declarations were

inadmissible hearsay. Under Federal Rule of Evidence 801,

hearsay is an out-of-court statement offered “to prove the

16 CALDRONE V. CIRCLE K STORES INC.

truth of the matter asserted in the statement.” Plaintiffs’

declarations were not offered to establish the truth of any

out-of-court statements but merely to establish Circle K’s

pattern of conduct—namely, its prior practice of announcing

vacancies. Although the declarations arguably refer to out-

of-court statements—the job listings themselves—plaintiffs

are not offering those statements for their truth because they

are not attempting to show that the positions at issue in the

prior announcements actually were available. All that

matters is that the statements were made and that they

provide evidence of a policy of posting job openings

internally. The declarations are not hearsay.

The district court also determined that, even if Circle K

had a policy of posting jobs internally at some point before

2020, there was no evidence that its deviation from that

policy in this instance was motivated by ageist animus. But

that is what a jury could infer if plaintiffs succeed in proving

that Circle K’s decision not to post the vacancy was a

deviation from its normal policy, made with knowledge of

plaintiffs’ interest in a promotion. Plaintiffs have thus raised

a material dispute of fact as to whether Circle K’s proffered

explanation for selecting Angeles was pretext for illegal

discrimination, making summary judgment inappropriate.

REVERSED and REMANDED.