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