Judge William Kuntz
Andretta—at all relevant times 61 years old—worked for the Bureau of Customs and Border Protection, an agency in the Department of Homeland Security. His suit against DHS—and its secretary—alleged violation of the Age Discrimination in Employment Act grounded when he was not selected for a promotion filled by three younger individuals. The Equal Employment Opportunity Commission previously found that Andretta had not been subjected to age discrimination. Applying the McDonnell Douglas burden shifting analysis, the court held that despite stating a prima facie case for discrimination for failure to promote, Andretta failed to show age a "but for" cause for his non-selection. By presenting evidence of a legitimate, merit-based review process—in which applicants’ ages were not considered—resulting in the selection of three qualified candidates, defendants demonstrated a legitimate nondiscriminatory basis for Andretta’s non-selection for promotion. In finding his age not a "but for" cause for non-selection the court noted that, among other things, Andretta did not submit evidence supporting his claim that his longer experience rendered him better qualified than the three selected candidates.