## Facts

- In 2007, Richard M. Villarreal (age 49) applied online for a “Territory Manager” position with R.J. Reynolds Tobacco Company (RJR).
- RJR used a recruiting contractor to screen applicants using written resume-review guidelines supplied by RJR.
- The guidelines described a “targeted candidate” as “2–3 years out of college” and instructed reviewers to “stay away from” applicants with “8–10 years” of sales experience.
- Villarreal’s application was not forwarded to RJR, and he was not notified of rejection; he did not follow up or inquire.
- In 2010, after attorneys contacted him, Villarreal filed an EEOC charge alleging age discrimination in hiring.
- Between 2007 and 2010, he submitted additional applications to RJR and was rejected; he amended his EEOC charge to include those rejections and to add the recruiter as a respondent.
- After receiving right-to-sue notices, Villarreal filed a collective action under the ADEA alleging disparate treatment and disparate impact.

## Issues

1. Whether ADEA § 623(a)(2) permits an outside job applicant to bring a disparate-impact claim challenging an employer’s hiring practices.
2. Whether Villarreal’s disparate-treatment claim was timely under the ADEA’s charge-filing deadline, and if not, whether equitable tolling applied.

## Decision

- The en banc Eleventh Circuit affirmed dismissal of the disparate-impact claim, holding § 623(a)(2) covers only employees, not outside applicants.
- The court affirmed dismissal of the disparate-treatment claim as untimely as to earlier rejections and held equitable tolling was unavailable due to Villarreal’s lack of reasonable diligence.
- The court left a limited, separate timeliness question concerning later application rejections for further proceedings.

## Legal Principles

- ADEA § 623(a)(2) prohibits employer practices that limit or classify “employees” in ways that deprive “any individual” of opportunities or adversely affect “status as an employee”; this text does not create a disparate-impact cause of action for outside job applicants.
- ADEA § 623(a)(1) expressly reaches hiring decisions (“fail or refuse to hire”), supporting disparate-treatment claims by applicants, but that does not expand § 623(a)(2).
- Agency interpretations do not receive controlling deference when the statute is unambiguous; interpretive guidance lacking formal procedures may be rejected as unpersuasive.
- Equitable tolling of the ADEA charge-filing deadline requires reasonable diligence; a claimant’s failure to follow up or act for years defeats tolling.

## Conclusion

The Eleventh Circuit held that outside applicants cannot sue for disparate-impact hiring discrimination under ADEA § 623(a)(2) and that an untimely disparate-treatment claim is not saved by equitable tolling where the applicant did not diligently pursue his rights.


Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 2016) (en banc)