NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3899
___________
SHAWN BULIFANT; GARY HUGHES;
DANIEL LOPER; JAMES MCCLINTOCK;
CHRISTOPHER VERNON,
Appellants
v.
DELAWARE RIVER & BAY AUTHORITY
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 1-14-cv-07384)
District Judge: Honorable Noel L. Hillman
____________________________________
Submitted under Third Circuit LAR 34.1(a)
on Friday, June 16, 2017
Before: JORDAN, KRAUSE, and GREENBERG, Circuit Judges
(Opinion filed: July 7, 2017)
OPINION*
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
KRAUSE, Circuit Judge.
Shawn Bulifant, Gary Hughes, Daniel Loper, James McClintock, and Christopher
Vernon appeal the District Court’s grant of summary judgment in favor of Appellee, the
Delaware River & Bay Authority (DRBA), related to their claims under the Age
Discrimination in Employment Act (ADEA). For the reasons that follow, we will affirm
in part, vacate in part, and remand for further proceedings on Hughes’s and McClintock’s
age discrimination claims.
I. Background
Appellants are crew members who have worked as seasonal employees for the
DRBA’s ferry services at various points between 2006 and the present. Appellants
applied for full-time positions with the DRBA in response to job postings in February
2012, September 2012, and January 2013. With limited exception,1 Appellants received
interviews each time they applied, but ultimately were not selected for any of these full-
time positions.
In making its hiring decisions for these positions, the DRBA employed a
standardized approach in which the same panel of four DRBA employees interviewed
every candidate for a given position using the same preset questions that focused on four
core competencies—functional and technical skills, safety, customer service, and peer
relationships. Based on the candidates’ answers, each panelist assigned the candidates a
numeric score in each competency. The scores of the four panelists were then added
1
Vernon did not receive an interview for the February 2012 position, and did not
apply for the January 2013 position.
2
together, and the candidates were ranked in order of their total scores.2 These rankings,
as well comments from the panel on each candidate, were then submitted to human
resources and the managing director for the position in question.
Although there is no record of what occurred when the rankings were submitted
for the specific positions at issue in this case, the DRBA’s executive director testified that
the rankings are always used as an “important guide” in the ultimate selection. App. 790.
He also testified that while managing directors and human resources “have … the ability
to deviate somewhat from the strict numerical rankings in order to achieve other goals . . .
such as diversity or other specific goals,” App. 788, “a record is made of why [the
DRBA] picked who [it] picked” and an “explanation” is given when such deviation
occurs, App. 791.
For the February 2012 position, the DRBA followed its rankings to a T, turning
Appellants down in favor of those who ranked above them numerically.3 For the
September 2012 position, however, the DRBA deviated from its standard practice, hiring
the first-through-fourth ranked candidates, ages 52, 52, 24, and 52, but skipping over
Hughes and McClintock, ages 61 and 53, and ranked fifth and sixth, in favor of the
2
The record reflects that the competencies were not given equal weight when
calculating a candidate’s total score but does not disclose how they were weighted.
3
We reference the February 2012 position for its relevance to reviewing the
DRBA’s general hiring practices and not as the basis for a claim in and of itself. The
District Court held that any claims with respect to that position were time barred because
Appellants missed the deadline to file a related charge with the Equal Employment
Opportunity Commission—a prerequisite to filing an age discrimination claim in federal
court, see 29 U.S.C. § 626(d)(1)—and Appellants do not dispute this ruling on appeal.
3
seventh, eighth and ninth-ranked candidates, ages 35, 26, and 33.4 Despite its executive
director’s testimony that he would “be surprised” if a written explanation addressing this
deviation did not exist, App. 792, the DRBA has not produced any contemporaneous
records documenting the rationale behind the decision. Thereafter, for the January 2013
position, the DRBA resumed its strict adherence to its rankings, rejecting Appellants in
favor of the two highest-rated candidates.
Appellants filed suit, asserting that they were not hired for these positions due to
their age in violation of the ADEA.5 In addition, because Appellants submitted
complaints to the DRBA regarding this alleged age discrimination after their first round
of unsuccessful applications, Appellants also asserted they were not hired for the two
later positions in retaliation for their complaints—likewise a violation of the ADEA. The
District Court granted summary judgment in favor of the DRBA on the ground that, even
assuming Appellants had established prima facie cases of discrimination and retaliation
under the ADEA, they had not established that the DRBA’s articulated legitimate reasons
for their hiring decisions were pretextual. This appeal followed.
II. Discussion6
4
The remaining, lower-ranked, Appellants also were not offered a position.
5
In their complaint, Bulifant, Loper and Vernon also assert they were unlawfully
excluded from applying for additional positions in November 2011 and January 2012.
The District Court concluded that these positions, which were open to internal applicants
only, “d[id] not form the basis for [Appellants’] claims,” App. 8 n.3, and Appellants have
not challenged that finding.
6
The District Court had subject-matter jurisdiction pursuant to 28 U.S.C. § 1331,
and we have jurisdiction pursuant to 28 U.S.C. § 1291.
4
We review the District Court’s grant of summary judgment de novo. Faush v.
Tuesday Morning, Inc., 808 F.3d 208, 215 (3d Cir. 2015). Summary judgment is
appropriate where the moving party has established that “there is no genuine dispute as to
any material fact” and, viewing the facts in the light most favorable to the non-moving
party, “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013). Because we conclude that a
dispute of material fact remains only with respect to Hughes’s and McClintock’s age
discrimination claims, we will vacate the District Court’s grant of summary judgment in
the DRBA’s favor on those claims and will affirm on all others.
A. Appellants’ Age Discrimination Claims
To prevail on their ADEA discrimination claims, Appellants must establish by a
preponderance of the evidence that age was the “but-for” cause of the DRBA’s decision
not to hire them. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009). Because
Appellants rely on circumstantial evidence to prove their case, we evaluate their claim
using the three-part McDonnell Douglas burden-shifting framework.7 See Willis v.
UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015). That
7
In addition to arguing that they have carried their burden under McDonnell
Douglas, Appellants also contend that the McDonnell Douglas framework is not
applicable because they have offered “direct evidence” of discrimination—that is,
“evidence which, if believed, would prove the existence of [discrimination] without
inference or presumption.” Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994) (citation
and quotation marks omitted). The District Court carefully parsed Appellants’ allegedly
“direct” evidence, and we agree with its conclusion that none of this evidence proves
discrimination, and much of it, when considered in context, does not even support such
an inference.
5
framework requires a plaintiff opposing summary judgment to satisfy the initial burden of
establishing a prima facie case of discrimination; if he does so, the burden of production
then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its
hiring decision; and if the defendant articulates such a reason, the burden shifts back to
the plaintiff to show by a preponderance of the evidence that the defendant’s proffered
explanation was pretextual. Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009).
If the plaintiff succeeds in “demonstrating sufficient evidence to allow a finder of fact to
discredit the employer’s proffered justification,” summary judgment is not appropriate.
Burton, 707 F.3d at 427.
To state a prima facie case of age discrimination at the first step of the McDonnell
Douglas framework, a plaintiff must demonstrate “(1) the plaintiff is at least forty years
old; (2) the plaintiff suffered an adverse employment decision; (3) the plaintiff was
qualified for the position in question; and (4) the plaintiff was ultimately [not hired in
favor of] another employee who was sufficiently younger so as to support an inference of
a discriminatory motive.” Willis, 808 F.3d at 644. All five Appellants satisfy this initial
burden.8 At the second step of the McDonnell Douglas framework, however, the
rankings establish a legitimate, nondiscriminatory reason for the DRBA’s failure to hire
Bulifant, Loper, and Vernon for any position, and its failure to hire Hughes and
McClintock for the positions other than the one posted in September 2012, as discussed
8
Appellee does not appear to dispute Appellants’ qualifications for the relevant
positions, and the comments accompanying Appellants’ interview rankings generally
reflect that the DRBA considered them to be qualified applicants.
6
further below. We agree with the District Court’s conclusion that, to the extent the
DRBA followed its own rankings system, its process was “formal, open, objective, and
documented,” App. 29, and, thus, Appellants have not demonstrated for these positions
that the DRBA’s strict adherence to this system was a pretext for discrimination.9
The DRBA cannot rely on its rankings, however, to explain its failure to hire
Hughes and McClintock for the September 2012 position. Instead, although no
contemporaneous explanation was documented, the DRBA now offers the non-
discriminatory explanations that (1) the comments accompanying the rankings justified
its hiring decisions; and (2) its hiring of lower-ranked applicants was necessary to
promote diversity in its workforce. Although these explanations were enough to shift the
burden of production back to Appellants, Hughes and McClintock have offered enough
competing evidence that a reasonable jury could conclude these explanations were
pretextual.
9
Appellants contend that the DRBA’s reliance on its rankings is pretextual
because the rankings are “entirely subjective in nature.” Appellants’ Br. 33. While we
have cautioned that “low evaluation scores may be a pretext for discrimination,” Tomasso
v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006), Appellants have offered nothing more
than their own self-serving assessments that they were more qualified than higher-ranked
applicants and an unsubstantiated hearsay statement to support their contention that they
were scored less favorably than other applicants due to their age. Moreover, while
interviewers were given considerable flexibility when making their assessments, the
process was not as opaque as Appellants claim. Each interviewer rated each applicant in
four specific job-related categories, and, unlike the case of Alvarado v. Texas Rangers,
492 F.3d 605 (5th Cir. 2007) on which Appellants rely, the interviewers supported their
numeric rankings with specific comments reflecting their impressions of the strengths
and weaknesses of the individual candidates. See Alvarado, 492 F.3d at 617 (noting
“[Appellant’s] score sheets contain no notes or comments on her interview
performance”).
7
One way an ADEA plaintiff may demonstrate pretext is by “point[ing] to evidence
that would allow a factfinder to disbelieve the employer’s reason for the adverse
employment action.” Willis, 808 F.3d at 644. Such evidence “must indicate such
weaknesses . . . in the employer’s proffered legitimate reasons” that a reasonable fact-
finder could “conclude the employer’s actions could not have been for nondiscriminatory
reasons.” Id. at 644-45 (internal quotation marks omitted).
Hughes and McClintock have met this burden by identifying three significant
weaknesses in the DRBA’s proffered justifications. First, they point to the DRBA’s
deviation from its rankings system in favor of three significantly younger applicants with
no contemporaneously documented explanation.10 This evidence is compelling, as the
DRBA 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. Thus,
what occurred here—with 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.
10
The DRBA asserts that because Hughes and McClintock could not identify at
their depositions the ages and qualifications of the lower-ranked candidates selected
ahead of them, they cannot use these candidates as “comparators” for their discrimination
claims. Appellee’s Br. 24 n. 30. Appellants have consistently identified these younger,
lower-ranked applicants who were hired over them in their briefing, and their inability to
identify their comparators by name and to expound on their backgrounds while being
deposed is immaterial to Appellants’ claims.
8
Second, Hughes and McClintock cast doubt on the DRBA’s supposed reliance on
the comment sheets accompanying the applicants’ numeric rankings. Hughes and
McClintock are correct that the comments sheets are overwhelmingly positive about all
five applicants in question, and thus do little to explain why the three younger applicants
were selected and Hughes and McClintock were not.
Third, Hughes and McClintock undercut the DRBA’s post-hoc explanation that its
deviation from its rankings was necessary to promote diversity in its workforce. While
the seventh and ninth-ranked applicants may provide diversity that Hughes and
McClintock do not, the eighth ranked applicant—the youngest of the five by almost ten
years—is, like Hughes and McClintock, a white male. Moreover, although the DRBA’s
executive director, when deposed as part of this lawsuit, identified diversity as a potential
reason why the DRBA may have deviated from its rankings, he also testified that a
written record explaining that deviation normally would have been generated. As noted
above, no such record was generated here.
The District Court did not explicitly rely on either of these justifications as its
basis for granting summary judgment in the DRBA’s favor, but instead held that because
the first, second, and fourth-ranked applicants who were hired were also over forty, “age
does not appear to the reason why” McClintock and Hughes were not hired. App. 30.
The District Court reasoned that, had age been the reason Hughes and McClintock were
not offered positions, “it would follow” that the DRBA would have “skipped over” these
older applicants as well. App. 29.
9
While we commend the District Court’s careful assessment of the factual record,
we conclude its reasoning misconceives Appellants’ burden under the ADEA. The
ADEA does not require that Appellants prove the DRBA had a blanket policy of not
hiring any crew member over a certain age, but only that Appellants specifically were not
hired because of their age. See El v. SEPTA, 479 F.3d 232, 239–40 (3d Cir. 2007) (“Title
VII operates not primarily to the benefit of racial or minority groups, but to ensure that
individual applicants receive the consideration they are due”); Pivirotto v. Innovative
Sys., Inc., 191 F.3d 344, 353 (3d Cir. 1999) (“Even if the plaintiff was replaced by
someone within her own class, this . . . does not establish that the employer did not fire
the plaintiff on the basis of her protected status.”). Thus, while evidence of the ages of
other hired applicants may be relevant to whether age was the “but-for cause” of the
DRBA’s decision, Gross, 557 U.S. at 178, it does not establish that the DRBA’s
proffered justifications were legitimate, and not pretextual, as a matter of law.
In sum, Hughes and McClintock have offered “sufficient evidence to allow a
finder of fact to discredit the employer’s proffered justification.” Burton, 707 F.3d at
427. Appellants will bear the heavier burden at trial of “convinc[ing] the factfinder that
not only was the employer’s proffered reason false, but the real reason [they were not
hired] was impermissible discrimination.” Willis, 808 F.3d at 645. At this stage,
however, they have offered enough evidence of pretext to put their case before a jury.11
11
The DRBA makes much of the fact that three interviewers on the September
2012 interview panel were older than forty. Even accepting the non-binding opinions
cited by the DRBA for the proposition that the age of the decision-maker is relevant in an
ADEA case, the members of the interview panel were not the relevant decision-makers
10
B. Appellants’ ADEA Retaliation Claim
We also evaluate Appellants’ retaliation claims under the McDonnell Douglas
framework. Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005). To establish a prima
facie case of retaliation, a plaintiff must show “(1) that s/he engaged in a protected
employee activity; (2) that s/he was subject to adverse action by the employer either
subsequent to or contemporaneous with the protected activity; and (3) that there is a
causal connection between the protected activity and the adverse action.” Id.
Appellants have not made this prima facie showing because, even assuming they
satisfied the first and second prongs, they have failed at the third prong to establish a
causal connection between their protected activity and the DRBA’s decision not to hire
them. That is, the DRBA has posited Appellants were not hired due to their lower
rankings, and, apart from Hughes’s and McClintock’s retaliation claims with respect to
the September 2012 position, Appellants have not demonstrated to the contrary.
In contrast to their discrimination claims, however, Hughes and McClintock also
have not demonstrated the “causal connection” necessary to support a retaliation claim
vis-a-vis the September 2012 position. Such a connection is established when the
“proffered evidence, looked at as a whole” supports an inference of causation. Kachmar
v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997). The evidence on which
for purposes of Hughes’s and McClintock’s claims. In fact, it is clear from the record
that the interviewers themselves did not discriminate at all, as they ranked Hughes and
McClintock more favorably than the eventually-hired, younger applicants. Thus, the ages
of the interviewers here do not “mitigate[] any inference of pretext from [the] DRBA’s
bypass of Hughes and McClintock.” Appellee’s Br. 25.
11
Hughes and McClintock rely consists of three documents: (1) a May 29, 2012 letter to the
DRBA’s executive director protesting, among other things, the organization’s prior age
discrimination; (2) a March 25, 2013 EEOC discrimination charge filed by Loper; and (3)
a March 31, 2013 letter to the DRBA’s diversity manager protesting its past age
discrimination. None of this evidence, however, gives rise to an inference of causation.
Two of these documents, the May 29th letter to the DRBA and Loper’s EEOC
charge, fail because Loper is the only signatory to either document, and Hughes and
McClintock have not offered any evidence that reflects the DRBA knew they were
involved in preparing these complaints prior to its decision not to hire them.12 And
although the March 31st letter is signed by all five Appellants, the DRBA, by that date,
had already finalized its hiring for all but one of the September 2012 positions, with the
one remaining hire finalized the following day. Thus, while “temporal proximity”
between a complaint and an adverse action may sometimes create an inference of
retaliation, Kachmar 109 F.3d at 177, the inference from this record, if anything, goes the
other way, as Hughes and McClintock would be hard pressed to show (and indeed, have
offered no evidence) that, in the one-day gap at issue, the DRBA based even that final
adverse decision on Appellants’ letter. Without more, Appellants have not created the
inference of causation necessary to establish a prima facie case of retaliation under the
ADEA.
12
Although all five Appellants testified that they signed a different version of the
May 29th letter, no such letter has been produced by either party, and there is no evidence
that this version was ever received by the DRBA.
12
III. Conclusion
For the foregoing reasons, we will affirm in part, vacate in part, and remand to the
District Court for further proceedings consistent with this opinion.
13