Employee Survival Guide® - How A Secret Promotion Became An Age Bias Lawsuit

Episode Date: March 20, 2026

Comment on the Show by Sending Mark a Text Message.Promotions feel fair when there’s a posting, a process, and a record of how the decision got made. But what happens when the biggest career moves happen off the books, with no announcement and no way to even raise your hand? We dig into Caldrone v. Circle K Stores Inc., a multi-year legal fight that turns the “quiet tap on the shoulder” into a central question of age discrimination law and workplace fairness. We walk through the world of wholesale fuels and the Dealer Business Manager role, then zoom out to the corporate upheaval of asset exchanges and shifting management lines. Against that backdrop, the plaintiffs allege an ageist culture at the top, retaliation against veteran employees who complained, and a pattern of sidelining older workers during restructuring. We also break down whistleblowing allegations involving environmental reporting obligations, dealer pricing practices, and charity fundraising, and we contrast those claims with Circle K’s aggressive denials and affirmative defenses built around legitimate business reasons and management discretion. The heart of the case is a powerful promotion opportunity in Corona, California that was never posted and was quietly filled by a younger manager. A district judge initially tossed the core age discrimination claims for a blunt reason: the plaintiffs did not apply. The Ninth Circuit flips that logic, holding that requiring an application makes little sense when the employer doesn’t announce the opening, and it revives the path to trial by addressing evidence rules, pretext, and the “substantially younger” age-gap debate. If you’ve ever wondered whether succession planning crosses a line into discrimination, this story shows where courts may draw it. Subscribe, share this with a coworker, and leave a review with the most “secret” hiring practice you’ve seen at work. If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, X and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts and Spotify. Leaving a review will help other employees find the Employee Survival Guide.  For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.Disclaimer:  For educational use only, not intended to be legal advice. 

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide, where I tell you, as always, what your employer does definitely not want you to know about. And a lot more. Usually when we talk about getting a corporate promotion, there's, you know, an expectation of a procedure. Right, a certain established rhythm to the whole thing. Exactly. You know the drill. You see a job posting pop up on the company internet.

You polish up your resume. You go through that grueling round of interviews. Yeah. And then eventually someone from human research. sources sends out a polite little email announcing the final decision. It's a very visible documented process. I mean, it feels fair. Or at least it has the basic architecture of fairness built into it. But then you step into the reality of the executive level and suddenly that architecture just, well, it vanishes. We're looking at a promotional

landscape today that is entirely invisible. Yeah. The formal application disappears completely and it's replaced by the quiet tap on the shoulder. Right. But what happens when that quiet tap on the shoulder consistently bypasses highly qualified veteran employees, you know, in favor of younger, much less experienced ones. I mean, that is the absolute definition of the hidden job market. And when it operates in the dark like that, it raises some massive legal questions. Which is exactly what we are tackling in today's deep dive. Welcome in, by the way.

We've got a fascinating stack of primary sources to guide you through this today. It's a wild ride. We are looking at a multi-year legal saga. Yeah, driven by a collection of really explosive documents. We have the initial civil complaint filed by the plaintiffs, which started in California State Court before being bumped up to federal court. We also have the corporate answer, you know, with a capital A from the defendant, Circle Case Stores, Inc, where they aggressively push back on basically everything.

And then we've got a district court summary judgment ruling from 2023 that nearly killed the entire case. Followed by a brand new, completely game-changing decision from the Ninth Circuit Court of appeals. That one is dated October 3, 2025. Yeah, and that appeals decision blew this whole thing wide open. It really is incredibly rare that we get to see the entire life cycle of a high-stakes discrimination lawsuit laid out so clearly in the raw documents like this. Absolutely. And just to be super clear up front, our mission today isn't to play judge or jury. We aren't here to declare who is definitively right or wrong. Right, because a lot of this hasn't gone to a jury yet. Exactly.

Our goal is to trace the anatomy of this major age discrimination lawsuit. It's known as Caldron v. Circle Case Stores, Inc. So we're going to unpack the exact facts alleged in these documents, the fierce corporate defenses raised against them, and explore how the Court of Appeals ultimately revived this case. Deciding that these allegations absolutely must go to a trial. We'll be exploring that super messy intersection of corporate policy, age discrimination law, and the strict, almost mathematical legal tests that courts use. Tests designed to separate, you know, standard business decisions from unlawful prejudice. So let's just unpack this. That's good.

Before we can even begin to understand the lawsuit itself, you really have to understand the world these employees worked in. Yeah, context is everything here. We need to move from the broad, abstract concept of corporate promotions into the specific, high stakes and frankly, incredibly complex environment of wholesale fuels. It is a very unique ecosystem. And to understand the friction that ignited this lawsuit, we really need to look at the specific people involved. Okay, let's introduce our plaintiffs. We have four individuals, Brian Caldron, Joseph Salusta, Kathleen Stats, and Galea Williams. And according to the complaint, at the time the events of this lawsuit kicked off, they were all in their mid to late 50s.

Right. And we are not talking about rookies here either. Far from it. I mean, the documents detail these extensive decades-long careers. Yeah, Caldron had 30 years of experience. in the service station and wholesale fuel industry. Stitts also had over 30 years of experience and it held multiple managerial roles. So Lusta brought 28 years of experience to the table. And Williams had basically a lifetime of work in the California Petroleum Market. So these were deeply entrenched, highly experienced veterans of their field.

Right. And their job title was dealer business manager or DBM for Circle K. Now, I'll admit, when I hear the word manager in a corporate context, You picture a cubicle. I do. I picture someone in a cubicle approving PTO requests and like pushing spreadsheets around. But reading through these documents, that is not what a DPM does at all, is it? Not even close.

A DBM is really the crucial physical link between the massive corporate entity, in this case, Circle K, and the individual independent station operators. Okay. If you own a franchise gas station, your DBM is your lifeline. They are your business consultant, your office. your auditor, your compliance officer, all rolled into one. So they aren't just sitting at a desk all day. No, they are road warriors.

The complaint outlines their duties, and it's a massive list. They counsel station operators on competitive pricing. They monitor customer service. They check the physical appearance of the retail facility. Yeah. They make sure the station is complying with environmental record keeping, which is huge. They help operators improve their bottom lines, evaluate market trends, and even provide support for building out convenience stores and car washes.

So if we connect this to the bigger picture, a DBM is essentially running a whole portfolio of small businesses on behalf of the corporate parent. Wow. Okay. They are responsible for the profitability and the legal compliance of multiple locations across a massive geographic territory. That's a ton of responsibility. Think about the environmental aspect alone. Yeah. You have underground storage tanks holding thousands of gallons of highly flammable toxic liquid. Right, right.

Managing the compliance on that requires deep industry knowledge. It requires financial acumen and honestly, incredibly strong interpersonal skills to get independent, often stubborn franchise operators to actually comply with corporate mandates. Right. So we have these four highly experienced veterans doing this crucial boots on the ground work. But the ground beneath their feet is shifting dramatically at this time. Very dramatically. The documents detail a massive corporate upheaval occurring between 2017 and 2020. This is the macro environment that sets the stage for the whole conflict.

So Circle K is a Texas corporation, but it's owned by a massive Canadian multinational convenience store operator called Alimentation Couchthard. CoochTard, which honestly sounds like a sleeping pill, but there are an absolute global behemoth in the retail space. They really are. And in 2017, Couchtard acquired full ownership of another entity called Cross America Partners LP, or CAP. Yeah. CAPL is a wholesale distributer of motor fuels and a real estate lesser for gas stations. Following this acquisition, the complaint alleges that Kuchtard began this massive asset exchange. Meaning what exactly?

Meaning Circle K and CAPL basically shuffled the ownership of roughly 265 different gas station sites between each other. Wow. And then just to make things even more complicated, in November 2019, Kichhardt sells its interest in CAPL to another group, triggering even more asset exchanges. Right. It's a giant corporate shell game. So we have hundreds of gas stations, fuel supply agreements, and employees being bounced back and forth between these corporate entities over a three-year period.

Exactly. Why do companies even do this? I mean, beyond just the sheer accounting headache, what's the strategic value of shuffling hundreds of gas stations between subsidiaries? Well, usually it comes down to maximizing tax advantages, real estate value, and operational synergies. Synergies, the classic buzzword. Always. By grouping certain assets. under a master limited partnership like CAPL, a parent company can often realize significant tax

benefits. Gotcha. But for the employees on the ground, the strategic financial engineering just looks like utter chaos. I can imagine. You have employees receiving paychecks from one entity while being managed by executives from another. Territories are being redrawn overnight. Management structures are entirely in flux.

Which brings us to the core allegation of the entire lawsuit. The plaintiffs claim that this chaotic, years-long corporate transition period wasn't just messy. They say it was weaponized. They allege it was used as a deliberate smoke screen to execute a long simmering plan to force out, demote, or fire the older

DBMs and replace them with a cheaper, younger workforce. They're alleging that the asset exchange was essentially the cover story for a systematic purge of older workers. You know, it reminds me of a magician's misdirection. Oh, how so? Well, the magician makes a bunch of loud noises,

flashes some lights, shuffles the deck of cards incredibly fast, creating all this visual chaos, right? Right. And because you're so distracted by the shuffling, you completely miss the fact that they just slipped four specific cards right out of the deck and into their sleeve. That's a great way to look at it. The corporate merger is the flashing lights. The termination of the older workers is the sleight of hand. That is a very apt analogy. And it's exactly why corporate restructurings, mergers, and asset exchanges are so frequently the battleground for employment discrimination claims. Because it's easy to hide things.

Exactly. Think about it. When a company is in a steady state and business is just normal, firing a top performing employee with 30 years of experience raises immediate red flags. HR is going to ask some serious questions. Right. But during a merger, the company can just claim, oh, it's a redundancy, or their territory was absorbed,

or we're restructuring the management hierarchy to find synergies. provides a built-in, seemingly neutral excuse for getting rid of people. Precisely. Which is why in these types of legal cases, the courts can't just look at the broad corporate strategy. They have to look incredibly closely at the actual mechanics of the transition. Who specifically gets kept? Who gets let go? Who gets promoted in the chaos and who gets sidelined. The devil is entirely in the details of the execution. And the details alleged in this complaint are absolutely staggering. So let's zoom in here. How does a general feeling of being unwanted during a messy corporate merger turn into a federal lawsuit?

Because you can't sue your boss just for giving you a bad vibe. Right. You can't. So how does it cross that line? It manifests through behavior and communication. The plaintiffs in this case didn't just allege a vague feeling of ageism. They documented specific overt statements allegedly made by upper management. And here's where it gets really interesting. The complaint outlines what they describe as a deeply agist culture driven from the top down. Yeah. They specifically point the finger at a guy named George Wilkins, who was the vice president

of operations for CAPL, and later became Circle K's director of national wholesale fuels for California. And the quotes attributed to him in the complaint are not subtle. Not at all. According to the documents, Wilkins allegedly would constantly complain to Joseph Salushta, saying things like, you are old and we are out of date with the business styles today. Just explicitly saying you are old. Yeah, but it gets worse.

In the summer of 2019, Wilkins allegedly asked Solista point blank, Joe, how old are you? And Solista replied that he was 56. Right. And the alleged response from Wilkins is critical here from a legal perspective. It really is. Wilkins allegedly replied, Joe, you should really start thinking about retiring. You're out of touch. We no longer take care of business the old way.

And it wasn't just Solista. The complaint alleges that another executive, Joe Topper, told Kathleen's stats, well, I assume you're not 21 since you worked for Shell many years, but you don't sound 60 either. How old are you? Oh, man. I just have to stop here for a second. Who actually says that out loud in a modern corporate environment? It feels almost cartoonish. It does sound incredibly brazen.

But what's fascinating here is the directness of these alleged comments. Right. In employment law, there is a massive distinction between circumstantial evidence and direct evidence. How so? Well, circumstantial evidence requires the court to make an inference. For example, if a company fires 10 people during a merger and nine of them happen to be over 50, you might infer ageism. But the company could just argue it was a statistical anomaly based on salaries or whatever. Exactly.

But direct evidence proves the fact of discriminatory animus without any need for presumption. Okay, I see. If a vice president explicitly tells an employee you are old and should retire, that is direct evidence of age-based animus. It skips the inference entirely. It's the smoking gun. But the age's comments are really only half of the toxic environment alleged in this complaint. The plaintiffs weren't just complaining about age discrimination. No, they weren't.

They alleged they were actively blowing the whistle on massive corporate misconduct and that they were targeted because they refused to play along with the new regime. The whistleblowing elements add a tremendous amount of weight and complexity to the plaintiff's narrative here. It really paints a wild picture. They are painting a picture of a corporate culture that was not only agist but fundamentally unethical, and they were the veterans trying to hold the line. Let's look at the specifics of these whistleblowing claims because they are incredibly detailed. Let's start with Joseph Solista. In August 2019, he allegedly discovered a 3,000 gallon diesel spill in Gilman, Illinois.

3,000 gallons is a significant environmental hazard. Huge. And Circle K owned the underground tanks. Yeah. Salusta claims he verified the spill through tank monitoring systems and private contractors. He demanded they start cleaning it up immediately. As he should. But according to the complaint, Circle K waited a month.

And because they waited, the contaminants allegedly traveled into the groundwater and contaminated the main well water source for the town of Gilman. That is a nightmare scenario. Wait, hold on, though. A 3,000 gallon spill. Why wouldn't a massive corporate entity just pay the fine? hire a remediation crew and clean it up immediately. That seems like a massive, unnecessary risk to take. It comes down to liability and the very complex nature of environmental law, specifically regarding underground storage tanks or USTs.

Okay. The legal reporting requirement for a spill of that magnitude is mediate. You have to notify the Environmental Protection Agency and state environmental regulators right away. Makes sense. But once you report it, you are on the hook for the full remediation, which can cost millions of dollars. especially if groundwater is impacted. And remember that corporate shell game we talked about earlier.

The acid exchanges, the shuffling of the deck. Exactly. Solista alleges that Circle K deliberately chose not to report the incident to the EPA, violating multiple federal regulations. Wow. Instead, he claims they explicitly told him their plan was to cover up the spill until July 2021. Why that date? Because that is when their ownership of those specific tanks would expire

and essentially become someone else's problem. My gosh. If you can hide the spill until the lease transfers, you shift millions in environmental liability off your balance sheet. If true, that is not just an HR issue. That's a severe violation of federal environmental law. Absolutely. Then we have Brian Caldron. He alleges he uncovered a massive pricing scheme, basically a classic bait and switch.

Right. He observed that Circle K was allegedly charging independent dealers the higher Exxon blended price for fuel, which was about $0.9.5 per gallon, but secretly delivering cheaper, unbranded fuel. And to understand why that matters, you have to understand fuel margins. They're small, right? Razor thin. In the wholesale fuel business, the margins at the pump are tiny. Gas stations often only make a few pennies of profit per gallon.

Wow. The real money is made on the volume. So if a corporate distributor is secretly overcharging by nine cents a gallon on thousands of gallons delivered weekly. And that adds up fast. That is an astronomical amount of money being ciphered. away. It's pure profit stolen directly from the independent dealers. Yes. Caldron says he complained to his superiors, pointing out that dealers were essentially being defrauded. He claims he was

completely ignored, isolated, and told the intention was just to correct the math. And then what happened? 30 days after he escalated the complaint, he was terminated. Just incredible timing. Yeah. And we can't forget Kathleen States' allegations regarding the charity funds. This one is just heartbreak. It really is. In 2019, States was assigned to chair a program to solicit charitable donations from the dealers for Big Brothers, Big Sisters of America. A great cost. She did a great job, too. She successfully raised $94,636 and $4.4 from the independent dealers. That's a lot of money.

But she alleges that from December 2019 through August 2020, she kept noticing that this money, nearly 100 grand, was never actually handed over to the charity. It was just kept by the company. According to her, yeah. She complained repeatedly about this failure to donate the collected funds. So if we synthesize all these allegations, the plaintiffs are constructing a very specific narrative here. Right. They're arguing that they were experienced, highly competent managers who knew the laws, knew the environmental regulations, and knew the pricing contracts. You knew how things were supposed to work.

Exactly. And because they were experienced veterans, they were a roadblock to a new younger management team that allegedly, wanted to play fast and loose with the rules to maximize profits during this chaotic merger. But of course, a lawsuit is a two-way street. We can't just take the complaint as absolute truth. We have to look at how the corporation responded. We do. And Circle K did not just roll over. They filed a formal answer to the complaint. And the corporate answer is a fascinating legal document in its own right. Its primary function is to serve as a shield, right? Absolutely. I read through their answer and it's almost dizzying. It's page after page of

defendant denies the allegations contained in this paragraph over and over. Standard Defense Playbook. They essentially deny every single substantive claim made by the plaintiffs. They deny the agist quotes. They deny the environmental cover-up. They deny the bait and switch. But they don't just stop at denial. They assert what are called affirmative defenses.

Now, affirmative defenses are legally crucial, right? Very much so. Affirmative defense essentially says, even if the plaintiff can prove, prove some of their facts, we still win because of this overriding legal reason. Circle K listed dozens of them. They invoked management discretion, stating that any actions they took were just and proper exercises of business judgment. They argued that their decisions were made in good faith based on legitimate business reasons. And crucially, they asserted that they would have taken the exact same actions regarding these employees regardless of their

ages. A very strong shield. They even threw in a defense called imparidilicta. What exactly does that mean? In Peri DeLicco is a Latin phrase meaning in equal fault. Oh, okay. It's a legal doctrine suggesting that a plaintiff cannot recover damages if they were equally at fault for the wrongdoing they are complaining about. Wait, equal fault. Are they arguing that if there was an environmental cover up or a pricing scheme, the whistleblowers were actually the ones covering it up? That's exactly what they are signaling.

Wow. In a corporate answer, defense attorneys will typically throw the kitchen sink, at the plaintiffs. All right. It's a scorched earth defense strategy. How are your bases? Right. You deny everything and you preserve every possible legal shield.

By claiming in peri delicto, Circle K is laying the groundwork to argue later, hey, if these bad things happened, these managers were the ones in charge of those territories, so they are to blame, not us. So if you're sitting there trying to wrap your head around this, you have a classic, he said, she said situation. Very much so. The plaintiffs list these incredible. specific, shocking quotes and detailed accounts of 3,000 gallon spills and $94,000 in missing charity money.

And the corporation simply replies, denied legitimate business decision. And even if it did happen, it's your fault. Yeah. How does a court even begin to handle that kind of total contradiction? This raises an important point about the nature of the legal process itself. What you're describing is the pleading stage. Okay. The complaint is the plaintiff's opening salvo. It's their version of the world. The answer is the defense, his initial wall. At this stage, the truth hasn't been proven. No witnesses have been cross-examined under oath. No hard drives have been subpoenaed. But the court's job right now isn't to decide who was telling the truth. Right. They just have to figure out if there's enough smoke there to even warrant sending in the fire trucks. Exactly. The court looks at the complaint and says,

if we assume just for a moment that the plaintiff's allegations are true, does this constitute a violation of the law. And if it does? If the answer is yes, the case moves forward into the discovery phase. That's where both sides have to actually prove their claims with emails, memos, and sworn depositions. Okay. If the plaintiffs could eventually back up those shocking quotes with the paper trail, it transforms from a he said, she said, into actionable evidence. Okay, so the battle lines are drawn.

We have the toxic environment alleged, and we have the blanket corporate denial. But a massive lawsuit usually needs a spark, a specific triggering item that sets the whole legal machine into motion. And in this case, it all revolves around a single job opening in California. Yes, the Corona position. This is the absolute focal point of the entire legal dispute regarding the age discrimination. Let's set the scene here. It's January 2020. A man named Mike Bonert, who is in his late 50s, decides to voluntarily resign from his job. Okay.

He's the director of wholesale fuels for the West Coast region based out of Circle K's office in Corona, California. This is a massive role. The West Coast market in the petroleum industry is incredibly lucrative and highly regulated. I bet. Being the regional director means this person oversees all the dealer business managers on the West Coast. Which means, for our plaintiffs, Caldron, Solista, Stats, and Williams, this represents a major logical promotion opportunity. Exactly. It's exactly the kind of upward.

mobility a highly experienced DBM would be aiming for to cap off their career. It's the brass ring. But here's the catch. The job is never posted. Never posted at all. There's no email sent out to the team. There's no listing on the company intranet. There's no formal application process. It is a completely silent fill. So instead of a search, a man named Miko Angeles is laterally moved into the corona position from another region. Let's look at the demographics of this move because the numbers are the foundation of the legal claim here. Numbers are key. Miko Angeles, the man who got the unposted job, is 45.2 years old. The plaintiffs, who are shut out of the opportunity, are all older.

Let's hear the breakdown. Caldron is 54.4. Salusta is 55.8. Stats is 56.9. And Williams is 53.5. So you have a highly coveted regional director position suddenly filled by someone significantly younger than the veteran staff. And without any competitive process whatsoever. The justification Circle K gives for this is fascinating. What do they say? Marcella Simonelli, the head of wholesale fuels, submits a sworn declaration. He states that after Bundert resigned, Mikaelis was the only person who came to him and expressed a specific interest in the job. Wait, really?

Yeah. Simali essentially says, hey, none of the plaintiffs approached me to ask for the job, but Miko did, and he already had experience as a director in the Southeast region, so I gave it to him. Wow. And to bolster this, Circle K's director of human resources, suburb. Smith's evidence stating that prior to May 2021, which is over a year after this event, Circle K simply did not have an informal or formal policy requiring job openings to be posted. They argue there was no rule saying they had to advertise the job internally. This reminds me of a secret menu at a fast food restaurant.

Like an In-N-Out burger. Yes. Like ordering an animal-style burger at In-N-N-Out. It's not on the board above the register. The only way you can order it is if you already know it exists. That's very true. How on earth can you panelize employees for not applying for a job or expressing interest in a job if the company never tells them the job is available? That analogy perfectly captures the crux of the legal debate here.

In the corporate world, is an employer legally obligated to post every single job opening on a public bulletin board. I mean, I guess not. No. There is no federal law mandating job postings. Companies make lateral moves and promote from within informally all the time. It's often called succession planning. But there has to be a limit, right? There is.

If a company utilizes a secret menu process, specifically to hide opportunities from older workers, or to circumvent a competitive process so they can handpick a younger employee while keeping older employees in the dark. That crosses the line. That crosses the line into illegal disparate treatment. The lack of a posting isn't illegal on its own, but it can be powerful evidence of a discriminatory method. And the plot thickens because we have to talk about what happened to Galia Williams immediately after Miko Angeles took over this secret West Coast director job. This brings us to the retaliation claim. Yes, Williams is furious about the situation.

She believes she was bypassed due to age discrimination. And she actually goes and files a formal complaint with the California Department of Fair Employment and Housing, the DFEH. Which is a protected activity under employment law. Right. You cannot be legally punished for filing a good fee. faith discrimination claim with a government agency. That's the bedrock of whistleblower protection. Well, the documents allege she was punished, severely. How so? Weeks after she files that state complaint, her annual performance review happens. Historically,

Williams was a top performer. The previous year, she had a 100% rating. That's literally perfect. But suddenly, Miko Angeles, who has only been her boss for about three months, gives her a devastating 65% rating. A massive, completely uncharacteristic, She alleges that Angelus invented new goals and metrics after the fiscal year had already ended and then retroactively punished her for failing to meet these secret post-dated goals. That's incredibly underhanded is true. And it didn't stop with the review. Angelus then orchestrates a massive reassignment of the gas stations. Shuffling the deck again.

Yeah. He strips Williams of her high-performing profitable gas stations and replaces them with lower-ranked stations, often located in high-crime area. Which severely impacts her ability to hit her performance bonuses. Exactly. It's a textbook description of a constructive demotion and retaliation. Constructive demotion. Right. They aren't firing her outright, which would look too obvious right after she filed the complaint.

But they are allegedly altering the terms and conditions of her employment so drastically and making her working life so miserable that she will either fail out on metrics or simply quit out of frustration. But here's the reality of the American legal system. You can have all the explosive quotes and missing charity money in the world, but before a jury ever hears a word of it, you have to get past the judge's gatekeeping. You do. And in 2023, Circle K asked the judge to slam that gate shut. In August, 2023, Judge George H. Wu of the Central District of California, issues a ruling on Circle K's motion for summary judgment. A massive moment for the case. Can you translate that into plain English for

us? What is Circle K actually asking the judge to do here? A motion for summary judgment is essentially the defendant Circle K going to the judge and saying, your honor, even if you look at all the evidence the plaintiffs have gathered in the light most favorable to them, there is no genuine dispute of material fact here. So they're saying there's no real case. Right. They're saying their case is legally so weak that a reasonable jury could not possibly rule in their favor. So please throw the case out right now and save us the time and money of a full trial. It's the ultimate block. They have nothing dismiss it. Yes. And to figure out if the plaintiffs actually have nothing, the judge applies a very specific, famous legal test called the McDonald-Douglas framework. Where does that come from?

It was established by the Supreme Court in 1973 in a case called McDonnell Douglas-Corvey-Green. Okay. To understand why this test exists, you have to look at the history of civil rights law. In the 1960s and 70s, as anti-discrimination laws took effect, companies stopped putting up signs saying, we don't hire older workers, or we don't hire older workers. or we don't hire minorities. Right. They couldn't be overt about it anymore. Exactly. The discrimination went underground.

The Supreme Court realized that plaintiffs almost never have a signed memo tubing racism or ageism. So they created this framework as a way to analyze circumstantial evidence. A way to infer what's happening. Yes. It's a three-step dance designed to smoke out hidden biases. Okay, so the judge uses this 1970s legal framework. Walk me through how this three-step bans actually works in a courtroom today. Step one. The plaintiff has the initial burden to establish a prima facie case. This is Latin for at first sight.

Okay, at first sight. They have to show four basic things to prove they even have a right to be in the courtroom. One, they're over 40, meaning they're a member of the protected class. Got it. Two, they were qualified to the position. Three, they suffered an adverse action, like being denied a promotion. And four, the promotion was given to someone substantially younger. It sounds like a pretty basic checklist. If they managed to check all four boxes in step one, what happens next? Then the burden shifts to the employer for step two. The employer has to articulate a legitimate non-discriminatory reason for what they did. Okay.

Now, this is important. They don't have to prove it was a brilliant business decision or even a fair one. They just have to prove it wasn't based on illegal discrimination. So like Circle K saying, we hired Michelangels because he had regional director experience and was the only one who asked for the job. Exactly. That easily satisfies step two. And if the employer does that, the burden shifts back to the plaintiff for the third and final step, proving pretext.

Pretext, meaning it's a cover up. Right. The plaintiff must show evidence that the employer's so-called legitimate reason is actually a lie. A cover story specifically designed to hide true discriminatory motives. That sounds like a grueling test. And in 2023, Judge Woodrow. Wu looks at the plaintiff's age discrimination claims regarding that secret corona position, applies the McDonnell Douglas test, and throws the claims out.

He does. He kills the age discrimination part of the lawsuit right there. And his reasoning is entirely focused on a very strict literal interpretation of step one. Let's break down his logic, because as a layperson reading this, it made my head skip. That's very rigid. Judge Wu rules that the plaintiffs fail step one because they did not apply for the corona position. He says, essentially, you cannot claim you were illegally denied a promotion if you never actually submitted an application for the job. Yep, that was his ruling.

But we just talked about the secret menu. How do you apply for a secret? The company admitted they didn't post it. I completely validate your frustration, and it highlights a major tension in the legal system. It just feels so backwards. Lower district courts are often bound by very rigid interpretations of precedent. Judge Wu noted that Circle K submitted evidence showing they had no formal policy requiring job postings. Okay.

The precedent for a failure to promote claim typically lists applied for the position as a strict required element. Because it was undisputed that none of the plaintiffs handed in a physical application or sent an email asking for the Corona job before Angela Scott it, the judge ruled they failed the test. Wow. Without proof of a violated policy, the simple fact remained. They didn't apply so they can't complain they were. rejected. It feels like a catch-22 designed to protect corporate secrecy. They keep the job secret so you can't apply, and then the judge says you can't sue because you didn't apply. It's a very frustrating loop for plaintiffs. But Judge Wu didn't stop there. He also attacked the fourth

element of the Pramaphacy case, specifically regarding plaintiff Brian Caldron. The substantially younger requirement. Right. Remember the edges. Caldron was 54.4 years old. The man who got the job, Nico Angeles was 45.2. That is a difference of roughly 9.3 years. And Judge Wu points to a 9th Circuit precedent, a case called France v. Johnson, which establishes a mathematical rule of thumb. A mathematical rule. Yes. It states that an age difference of 10 years or more is presumptively substantial, but an age gap of less than 10 years is presumptively insubstantial. So because Caldron was 9.3 years older, instead of 10.0 years older, the judge says the age gap isn't big enough to even imply discrimination? He missed the cutoff by like eight months. It comes down to decimal

points. That's absurdly precise. Why does the court need a mathematical formula to figure out if someone is younger? Well, the court's realized that if a 50-year-old loses a job to a 49-year-old or a 55-year-old losing out to a 52-year-old, allowing a massive federal discrimination lawsuit every single time would paralyze the economy. Okay, I can see that. There are always going to be minor age gaps in the workforce. The courts had to draw a mathematical line in the sand to separate actual bias from normal, everyday generational shifts. Ten years became that arbitrary but necessary line. And Judge Wu ruled Caldron didn't have enough additional evidence to overcome that under 10-year presumption. So the age discrimination claims are dead in the water. At that level, yes.

However, there is a tiny silver lining in Judge Wu's 2023 ruling. He does not throw out Gahlia Williams's retaliation claim. That's a crucial distinction. Retaliation is analyzed slightly differently than an initial discrimination. Judge Wu looks at what happened to Williams, the fact that she had historically excellent reviews, and then mere weeks after she files a formal state complaint, she gets her first ever devastating review from a guy who barely knows her. It looks highly suspicious. Furthermore, the judge notes that the metrics used to fail her were apparently altered after the fiscal year ended. The timeline is the key there. The extreme temporal proximity between her protected activity filing the complaint and the sudden adverse action. The terrible review

and losing her good stations creates a strong inference of cause and effect. Judge Wu writes that a reasonable jury could look at that timeline, look at the retroactive metrics, and conclude that Circle K's excuses are unworthy of credence. Which means she gets to proceed. Right. So Williams gets to keep her retaliation claim alive, but the massive age discrimination claims regarding the Corona a job promotion are dismissed. For the plaintiffs, it is a devastating but partial defeat. They are locked out of their primary argument. But in the federal system, a summary judgment ruling is not necessarily the final word. And this is where the entire narrative flips. Yes, it does. The plaintiffs, refusing to give up, appeal Judge Wu's decision to the United States Court of Appeals

for the Ninth Circuit. And on October 3, 2025, a panel of three appellate judges looks at the exact same set of facts, the exact same documents, and comes to a radically different conclusion. A total what 80? The Ninth Circuit blows the district court's ruling completely out of the water. Let's start with the most infuriating part of the lower court ruling, the failure to apply rule. Oh, this is great. The appeals court absolutely dismantles Judge Wu's logic regarding the secret job. They look at the realities of the workplace rather than just a rigid checklist. Exactly. The appeals court cites a previous case, read, v. Lockheed aircraft and states something that feels like profound common sense. 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. Thank you. Finally some logic. It's refreshing, right? It really is. The appeals court essentially says that because Circle K chose to operate a secret menu and handpick Mico Angeles behind closed doors, they completely removed the plaintiff's obligation to apply. You can't be punished for failing to apply for a secret. It's a massive victory for workers' rights. The court is saying that employers cannot use the lack of a formal application process as an impenetrable shield against discrimination claims if they deliberately hid the opportunity. But to prove that Circle K was acting shady,

the plaintiffs needed to show that the company used to post jobs and suddenly stopped for this specific job. Which leads directly to a massive battle over evidence rules. Specifically hearsay. This is legal nerd territory, but it is deeply important to how trials actually work. Okay, let's unpack this. In the lower court, the plaintiffs submitted sworn declarations saying, hey, in the past, Circle K always send out emails or posted on the internet when a regional director job was open. Judge Wu threw those declarations in the trash. He said they were hearsay because the plaintiffs were talking about documents, old job postings, that they didn't physically have in their hands.

Hearsay is generally defined as an out-of-court statement offered to prove the truth of the matter asserted in that statement. Okay. It's a rule designed to keep unreliable rumors out of the courtroom. Judge Wu viewed their memories of old job postings as unreliable rumors. But the appeals court swoops in and corrects them. They say, no, Judge Wu, you applied the rule wrong. Can you explain why those memories weren't hearsay?

Give me an analogy here because truth of the matter asserted, Sounds like word salad? It does. Think of it this way. Let's say we are in a trial, and I testify. John told me it was raining on Tuesday. Okay. John says it's raining.

If I'm offering that testimony to prove that it was actually raining, maybe to prove you needed an umbrella that day, that's hearsay. Yeah. I'm using his statement to prove the truth of the weather. Got it. But what if I'm offering that testimony just to prove that John is capable of speaking English? In that case, it's not hearsay. I don't care if it was actually raining.

I just care that John performed the actual. of speaking. I see. Here, the appeals court clarifies that the plaintiffs were not offering their memories of old job postings to prove that those old jobs were actually available. That would be proving the truth of the matter asserted. They were offering their memories simply to prove that a pattern of conduct existed. They were trying to prove the company performed the act of posting as standard operating procedure. That makes total sense. The court ruled that testifying about a company's historical practice of sending emails is not hearsay. It is admissible evidence of a corporate pattern. And because that evidence is now admissible, a jury can hear it. A jury can hear that Circle

K used to post jobs, knew these older workers wanted a promotion, and then suddenly decided not to post this specific corona job, keeping it secret until a younger guy was slipped into the role. Which leads directly into the third step of the McDonnell-Douglas test, destroying the pretext defense. This is where the appeals court really takes the gloves off. Circle K's defense, their legitimate reason, was that Miko Angeles was uniquely qualified because he had been a regional director in the southeast. But the plaintiffs had submitted evidence regarding Angeles's actual track record, which the lower court had dismissed as mere opinion. The appeals court says, wait a minute, this isn't just an angry co-worker's opinion. These are objective performance

metrics. Exactly. And the metrics are damning. According to the declaration, submissions submitted by the plaintiffs, which, remember, must be assumed true at this stage, when Angelus was a DBM, his productivity scores put him in the bottom 30th percentile of his peer group. And his record as a regional director in the Southeast was allegedly even worse. A former executive declared that as Southeast regional director, Angelus was responsible for 231 independent dealers. At of 231, over the course of an entire year, Angelus allegedly only managed to meet with pen of them. Just 10.

He was supposed to travel to each state quarterly, but allegedly only went to Florida and North Carolina once in over a year. If I'm on a jury hearing that the guy who was secretly handpicked for a massive West Coast promotion was in the bottom 30th percentile of his peers and ignored 220 of his clients, that completely destroys the corporate narrative. That's the essence of pretext. If Sukul K claims he was uniquely qualified and the evidence shows he was actually a terrible manager who barely did the, the job, a jury can reasonably conclude that unique qualifications is a lie. And if it's a lie. And if the stated reason is a lie, the jury is legally permitted to infer that the real hidden reason was age. Pretext is all about showing that the employer's explanation is unworthy of credence. The final nail in the summary judgment coffin relates to Brian Caldron and the 10-year rule. Remember,

he was only 9.3 years older than Angelus, which Judge Wu said was presumptively insubstantial because of the math. The appeals court tackles this head on. They acknowledge the precedent, but they rule that the presumption can be overcome. It's not an ironclad rule if you have other evidence. And what evidence did they have? The direct evidence of animus we discussed earlier. George Wilkins and his quotes. Yes.

The appeals court points to the declarations where Wilkins allegedly told older workers they were out of touch, too old for this business, and pushed them to retire. Right. The court rules that this specific direct evidence of high-level executive ageism is more than enough to overcome. a mathematical 9.3-year presumption. It's a stunning reversal. The appeals court systematically dismantles every roadblock the lower court put up. You really did. The failure to apply rule, gone.

The hearsay exclusion reversed. The pretext offense. Pierceed. The 10-year rule. Overcome. The result is monumental for the plaintiffs. The summary judgment is reversed. The case is remanded back to the district court.

The plaintiffs have finally earned their day in court. They get to present all of this to. a jury. So if you're listening to this, you might be wondering why you should care about the procedural history of Caldron v. Circle K. It's a fair question. Whether you're 25 and just starting your career, or 55 and hoping for that final major promotion, understanding how the law views the hidden job market inside your company is vital. It's about recognizing the mechanisms of corporate power and how they are regulated. This case proves that courts will look at the paper trail or, crucially, the deliberate lack of one. It shows the undocumented policy changes regarding how jobs are posted aren't just

minor HR quirks. Sudden, inexplicable shifts in performance reviews aren't just bad management. And those casual, seemingly off-the-cuff breakroom comments about someone's age or energy level aren't just workplace annoyances. They are the building blocks of federal lawsuits. They're the evidence that separates a standard business restructuring from an illegal discriminatory purge. It empowers employees to understand that the chaotic smoke screen of a corporate merger does not invalidate your civil rights. If we connect this to the bigger picture, it forces us to really examine modern corporate jargon. Think about the concepts of culture fit or succession planning. Sure, very popular terms. Very popular terms in HR right now. But at what point does grooming a specific chosen junior employee for leadership cross the invisible line into systemic discrimination against the veterans who actually build. the department. That's a great question. If a company cannot legally tap someone on the shoulder and give them a job without a public internal posting, does that actually make hiring fairer?

Or does it just force companies to put on a theater of fake interviews for jobs that are in reality already filled in the minds of the executives? Oh, wow. Keep an eye out for how your own company handles its next sudden vacancy. Does the architecture of fairness actually exist, or is it just a facade hiding the magician's sleight of hand. And that brings us right back to where we started. The difference between the clean, visible x-ray of a formal application process and the murky, invisible waters of the corporate tap on the shoulder. When the x-ray machine is broken, sometimes it takes a federal appeals court to finally turn the lights back on. Thanks for taking this deep dive with us. Hey, it's Mark, and thank you for listening to this episode of the Employees' Fava Guide. If you'd like to be

interviewed for our podcast and share your story about what you're going through at work and do so anonymously, please send me an email at M-C-A-R-E-Y at C-A-P-C-C-Law.com. And also, if you like this podcast episode and others like it, please leave us a review. It really does help others find this podcast. So leave a review on Apple or Spotify or wherever you listen to this podcast. Thank you very much. And I'm glad to be a service to you.