Shawn Bulifant v. Delaware River & Bay Authority
698 F. App'x 660
| 3rd Cir. | 2017Background
- Five seasonal DRBA ferry crew members (Bulifant, Hughes, Loper, McClintock, Vernon) applied for multiple full-time positions in 2012–2013, were interviewed, but not hired.
- DRBA used a standardized interview panel scoring system (four competencies, numeric scores, summed and ranked) that it generally followed when hiring.
- For February 2012 and January 2013 positions, DRBA adhered to rankings; for September 2012 it deviated, hiring three lower-ranked, substantially younger candidates over Hughes (61) and McClintock (53) who were ranked 5th and 6th.
- No contemporaneous written explanation for the September 2012 deviation was produced, though DRBA policy calls for documentation when rankings are bypassed; DRBA later offered post-hoc reasons (comment sheets and diversity goals).
- Plaintiffs sued under the ADEA for age discrimination and retaliation; the District Court granted summary judgment for DRBA, and the plaintiffs appealed.
- The Third Circuit affirmed in part, vacated in part, and remanded: it found triable issues as to Hughes’s and McClintock’s discrimination claims (September 2012), but rejected the retaliation claims and affirmed dismissal for the other plaintiffs/positions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs established ADEA disparate-treatment claims | Appellants: age was the but-for reason they were not hired; deviation from rankings and lack of contemporaneous explanation show pretext | DRBA: legitimate nondiscriminatory reason—objective ranking system and documented process; deviations justified by comments/diversity | Court: All five met prima facie, but only Hughes and McClintock presented sufficient evidence of pretext regarding Sept. 2012 hiring; summary judgment vacated as to their discrimination claims and affirmed for others |
| Whether DRBA’s ranking system is facially legitimate or pretextual | Appellants: rankings subjective and could mask discrimination | DRBA: system is formal, objective, documented, and normally followed; comments support choices | Court: Where DRBA strictly followed rankings, that supported legitimate reason; where it deviated without documentation, pretext question for jury (Hughes/McClintock) |
| Whether post-hoc explanations (comment sheets, diversity) cure lack of contemporaneous rationale | Appellants: post-hoc justifications are weak—comments were uniformly positive and diversity claim inconsistent | DRBA: comments and diversity needs explain deviation | Court: Post-hoc reasons were insufficient to negate inference of pretext where no contemporaneous record existed; triable issue remains for Hughes/McClintock |
| Whether plaintiffs established ADEA retaliation | Appellants: complaints to DRBA and EEOC led to later non-hires | DRBA: non-hires resulted from lower rankings; no causal link shown | Court: Plaintiffs failed to show causal connection; retaliation claims dismissed/affirmed on summary judgment |
Key Cases Cited
- Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (ADEA requires but-for causation)
- Faush v. Tuesday Morning, Inc., 808 F.3d 208 (standard of review for summary judgment in employment cases)
- Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638 (McDonnell Douglas framework and proof of pretext)
- Burton v. Teleflex Inc., 707 F.3d 417 (summary judgment and pretext standard)
- Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173 (causal connection/retaliation—evidence viewed as whole)
- Tomasso v. Boeing Co., 445 F.3d 702 (low evaluation scores can be evidence of pretext)