Bulifant v. Delaware River & Bay Auth., 2017 U.S. App. LEXIS 12157 (3d. Cir. July 7, 2017)

Third Circuit permits age discrimination claims to proceed to trial when the employer deviated from its standard ranking system to the benefit of three significantly younger candidates for employment.

The plaintiffs sought review of the dismissal of their age discrimination claims following the employer’s failure to hire them for full-time positions. In making its hiring decision, the employer utilized a standardized approach in which: (1) the same panel of interviewers were used; (2) the panel used the same preset questions; and (3) each panelist assigned numerical scores across four competencies (and provided comments) for each candidate. The candidates were then ranked and submitted to human resources and the managing director for a final decision. The managing director testified that the rankings are an “important guide,” although human resources and managing directors have the ability to deviate somewhat from the strict numerical rankings in order to achieve other goals, such as diversity. In February 2012, the plaintiffs were not hired in favor of other candidates who scored higher than them, consistent with the employer’s general practice. In September 2012, however, the employer hired the four highest ranked candidates (ages 52, 52, 24 and 52), skipped the plaintiffs (ages 61 and 53, who were ranked fifth and sixth, respectively) and then hired the seventh through ninth ranked candidates (ages 35, 26 and 33). While the managing director previously testified that there would be an explanation when the employer deviated from the numerical ranking, no contemporaneous documentation existed with respect to these hiring decisions. In January 2013, the employer resumed its adherence to the numerical rankings, hiring the two highest-ranking candidates.

In reversing the decision to dismiss the age discrimination lawsuit, the Third Circuit determined that the plaintiffs “[h]ave offered enough competing evidence that a reasonable jury could conclude [that the employer’s] explanations were pretextual.” Specifically, the Third Circuit noted that the plaintiffs pointed to the employer’s “[d]eviation from its ranking system in favor of three significantly younger applicants with no contemporaneously documented explanation.” The court found that this “[e]vidence is compelling, as the [employer] consistently followed its rankings when hiring for the other positions, and has acknowledged that it presumptively follows the rankings—so much so that it has a policy of creating a written record documenting its reasons in the event of a deviation.” Indeed, the Third Circuit further noted, “Three applicants in their twenties and thirties leapfrogging two applicants in their fifties and sixties with no documented explanation as to why—is significant evidence of pretext in itself.” In addition to the deviation argument, the Third Circuit determined that the plaintiffs successfully “undercut the [employer’s] post-hoc explanation that its deviation from its rankings was necessary to promote diversity in its workforce.” Specifically, while that explanation may have been sufficient for the seventh and ninth ranked candidates, the eighth ranked candidate (who was the youngest candidate) was, like the plaintiffs, a white male. Of course, this decision is an important reminder for employers to review their hiring policies and practices to ensure that any standardized procedures are followed and, if the procedures are not followed, that there is an explanation as to why that did not occur.


Case Law Alerts, 4th Quarter, October 2017

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