The Third Circuit Court of Appeals recently upheld a lower court’s summary judgment decision, finding that an applicant who refused to complete an application without some guarantee that a particular individual would not participate in the hiring process could not support a claim of race discrimination. Murray v. Beverage Distribution Center, Third Circuit Court of Appeals, No. 11-1938, unpublished, July 29, 2013.
In January 2007, Daryl Murray submitted a resume for a project manager position with Beverage Distribution Center (BDC). Murray submitted his resume through a third-party, the WorkPlace Group (WPG), which handled recruiting for open employment positions within BDC. A WPG recruiter subsequently contacted Murray to discuss the position and to complete a required assessment of Murray for the hiring process. At that time, Murray, who believed that a WPG hiring manager had discriminated against him, informed the recruiter that he would not cooperate any further in the application process without assurances that that manager would not be involved in his candidacy.
After that interview, Murray was not referred to BDC for consideration, based on his “very poor attitude” and his failure to complete the required assessment process. Murray subsequently sent an email to the recruiter, saying that he planned to file a lawsuit against BDC for discrimination. WPG forwarded the email to BDC’s Vice President of Human Resources, who contacted Murray in an attempt to resolve the situation. Murray responded that there was no way to resolve the matter other than through legal action.
In May 2007 Murray submitted a cover letter and resume directly to BDC and was directed to follow up through WPG regarding the position. Murray never completed that application process. In October 2007, BDC hired a different agency to handle recruiting, but Murray never used that agency to apply for any jobs, even though there were open positions at BDC. Instead, Murray filed a complaint in federal court against BDC and various individuals, alleging race discrimination and retaliation.
In November 2010, the district court granted summary judgment in favor of BDC, and Murray appealed to the Third Circuit. The Third Circuit upheld the dismissal, finding that Murray was unable to establish a prima facie case of race discrimination because Murray could not show that he had “applied and was qualified for a job for which the employer was seeking applicants,” because he never had completed the entire required application process. Failure to formally apply for a position will not automatically keep an individual from establishing a prima facie case within the Third Circuit. However, in order to overcome such failure, an individual who does not make formal application must show that he made “every reasonable effort” to convey to the employer his interest in the job and that he was deterred from applying by the discriminatory practices of the employer or that he reasonably believed that a formal application would be “futile.”
According to the Third Circuit, Murray failed to make “every reasonable effort” to convey his interest in the job because he initially refused to complete the process required of applicants for the position with BDC, he refused to submit materials to WPG for a subsequent position, and he never made application for any other positions, even though a different recruiter then was used by BDC. Based on those failures, Murray “failed to manifest the ultimate indicium of conveying one’s interest in an open position: completing the company’s processes required for consideration.”
Further, the court held that Murray’s assertion that further application would have been a “futile gesture” was completely without factual support. In fact, the court pointed to evidence that both BDC and WPG personnel urged Murray to complete the application process for open positions. While Murray argued that the companies should have saved his resume and considered him for other openings without further application, the court held that a company is not required to look at every qualified applicant for every future position. Such a burden, it pointed out, would leave almost every company open to lawsuits whenever a prior applicant was not considered for future openings.
This case should not be viewed as permission to reject every applicant who expresses concern about a company’s hiring procedures and, based on that concern, fails to complete the process. If, in fact, the individual can prove that his or her application attempt actually would be futile or can point to discriminatory practices within the company’s hiring procedures, there may be sufficient support for a claim of discriminatory hiring.
Maria Greco Danaher is a shareholder in the Pittsburgh office of Ogletree Deakins.
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