Fifth Circuit Says Failure-To-Hire Discrimination Claim May Be Supportable Even If Plaintiff Applies For Position That Is Unavailable – Employment Litigation/ Tribunals

A plaintiff alleging employment discrimination based on a
failure-to-hire must, of course, show that she “actually
applied” for the position. Thomas v. Tregre, 913 F.3d
458, 463 (5th Cir. 2019). However, this week, the Fifth Circuit
held that in certain scenarios the position sought by the plaintiff
need not have been available to support a failure-to-hire claim.
Paugh v. Lockheed Martin Corp., No. 21-50472, 2023 WL
417648, at *4 (5th Cir. Jan. 26, 2023). Following a series of
opinions from sister circuits in “comparable situations,”
the court recognized that a “relaxation of the application
element of the prima facie case is especially appropriate when the
hiring process itself, rather than just the decision-making behind
the process, is implicated in the discrimination claim.”
Id. at fn. 5.

In Paugh, the plaintiff was a female employee of a U.S.
Army sub-contractor, Tapestry Solutions, that serviced a live-fire
training range at the Army’s Fort Bliss. Id. at *1. In
2018, Lockheed Martin was awarded a follow-on service contract
which subsumed Tapestry Solutions’ servicing of that range.
Id. An executive order required Lockheed Martin to
“hire qualified incumbent employees displaced by the new
contract.” Id. The plaintiff applied for nine
positions with Lockheed Martin, but seven of those positions were
ultimately canceled by Lockheed Martin and the other two positions
went to incumbent male employees. Id. at *1-2. The
plaintiff sued for sex discrimination and retaliation under both
federal and Texas law based on failure-to-hire. Id. at *2.
The district court dismissed all plaintiff’s claims on summary
judgment. Id.

The Fifth Circuit affirmed the dismissal of claims concerning
Lockheed’s failure-to-hire plaintiff for the two available
positions that went to her male counterparts. Id. at *6.
However, the court reversed the dismissal of her claim concerning
the seven unavailable positions. Id. at *4-5. In
support of that claim, plaintiff alleged that “she was kept in
the dark about which positions Lockheed Martin actually intended to
fill, with the result that she applied for” and the court
found that she had “created a genuine issue of material fact
as to whether critical hiring information was meted out
discriminatorily in violation of Title VII.” Id. at
*4. The plaintiff did so by presenting evidence that her male
counterparts were informally given a “helpful tip-off” by
Lockheed’s hiring manager at a “meet-and-greet” that
they need not apply to certain positions as they were being
cancelled, while plaintiff was never provided the same information.
Id. at *5.

The key takeaway for employer-contractors in similar situations
is this: the need for formality and uniformity in providing
information to applicants in mass-hiring scenarios is paramount.
But a claim based on a person being “left in the dark”
about available positions could occur in other scenarios, such as
in the context of a “failure-to promote” claim or even
when an employer participates in a job fair. In those scenarios,
employers may want to provide written notice of all potential
opportunities to best avoid any disputes about applicants being
“left in the dark.”

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