Third Circuit Vacates Order Granting Summary Judgment In ADEA Failure To Hire Case Finding Triable Issue Of Pretext

Executive Summary: Recently, the United States Court of Appeals for the Third Circuit in Bulifant v. Delaware River & Bay Authority, vacated the portion of the district court's order granting summary judgment to the employer on two of the appellants' ADEA claims that alleged age discrimination based on a failure to hire. The Court of Appeals found that the two appellants raised a triable issue on pretext by: (1) showing the employer deviated from its consistently applied ranking system in favor of significantly younger applicants without a documented explanation; (2) pointing to applicant comment sheets which were "overwhelmingly positive" about all of the applicants in question; and (3) showing that the "post-hoc" diversity explanation offered was not supported by the characteristics of all of the applicants selected for hire. However, the Court of Appeals affirmed summary judgment in favor of the employer on the appellants' retaliation claims because they failed to demonstrate a causal connection between their protected activity and the employer's decision not to hire them.

Background of the Case

The Appellants Shawn Bulifant, Gary Hughes, Daniel Loper, James McClintock, and Christopher Vernon were seasonal crew members who had worked for Delaware River & Bay Authority's (DRBA) ferry services at various times for several years. All five applied for full-time positions with DRBA on three occasions. Four of the five Appellants were interviewed each time they applied, but none were selected.

DRBA used a standardized hiring process where the same panel of four employees interviewed each applicant using the same preset questions that focused on four core competencies. Each panelist assigned the applicants a numeric score in each competency, the scores of the panelists were then added, and then the candidates were ranked. These rankings and the panelists' comments on each candidate were presented to human resources and the managing director for the vacant position for consideration.

DRBA's executive director testified that the rankings are an "important guide" in the ultimate selection and are always used. He also testified that while managing directors and human resources can deviate from the rankings to achieve diversity or other goals, deviations from the rankings are documented and explained.

On two of the three occasions when applications were sought and hiring decisions made (February 2012 and January 2013), DRBA strictly applied its...