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Failure to hire cases can be very difficult, but not impossible. Today, we look at the recent case of Connors v. Merit Energy Co., LLC, No. 22-2080, 2023 WL 2003622, (8th Cir. Feb. 15, 2023). In this case, Kimberly L. Connors worked as a lease operator by XTO Energy, an oil and gas operation, for 17 years when it was bought by Merit Energy Co., LLC. Merit decided to only hire 20 of the 28 lease operators. Given that we are talking about failure-to-hire lawsuits, you probably surmised that Connors was not one of them. At the time, Connors was the only female lease operator and was 55 years old.

What is a failure to hire case?

A failure to hire case refers to a legal action taken by a job applicant who believes that he/she/they were not hired for a job due to or other illegal reasons. In such cases, the applicant may file a complaint or a lawsuit against the employer for or violation of anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), and the Age in Employment Act of 1967 (“ADEA”).

Under these laws, applicants may claim that the employer denied them the job based on factors such as their race/color, gender, age, religion, national origin, disability, gender identity, or sexual orientation.

Best Employment Discrimination Lawyer Blogs on Point:

How do you prove a claim of failure to hire?

In the failure-to-hire context, absent direct evidence of discrimination, an applicant establishes a prima facie case of discrimination by showing: (1) she was a member of a protected group; (2) she applied for an available position; (3) she was qualified for the position; (4) she was not hired; and (5) similarly situated individuals, not part of the protected group, were hired instead. Farver v. McCarthy, 931 F.3d 808, 812 (8th Cir. 2019). However, in age cases, where the protected class starts at 40 years old, the fifth element is replaced showing that similarly situated but substantially younger individual(s) were hired instead. Thus, in an age discrimination failure to hire case, a 72 year old can still meet the fifth element by showing that she was not hired in favor of a 58 year old application – who is still in the protected class but is substantially younger.

If the applicant can meet this requirement, the burden shifts back to the employer to state a legitimate non-discriminatory reason for the employment action, which in this situation is the decision not to hire the applicant. The applicant then can present evidence that the employer’s stated reason is pretext – meaning either false or did not really motivate the decision.

In Connors, the United States Court of Appeals for the Eighth Circuit rejected the age discrimination claim and affirmed that claim’s dismissal:

We turn first to Connor’s age discrimination claim. “[T]he ADEA prohibits discrimination against employees, over the age of 40, because of their age.” Tramp v. Associated Underwriters, Inc., 768 F.3d 793, 798 (8th Cir. 2014) (quoting Holmes v. Trinity Health, 729 F.3d 817, 821 (8th Cir. 2013)). It is undisputed that Connors can establish the first four factors of the prima facie test—she is over 40 years of age, she applied to be a lease operator, she was qualified for the position, and Merit chose not to hire her. But, Connors cannot establish the fifth factor. Of the 20 lease operators hired by Merit, the majority were members of the same protected class as Connors. Specifically, 13 of the 20 lease operators hired by Merit were over the age of 40. Indeed, five of them were the same age as Connors (55 years) or older. See McGinnis v. Union Pac. R.R., 496 F.3d 868, 875-76 (8th Cir. 2007) (no prima facie case of age discrimination where 49-year-old plaintiff was replaced by 53-year-old employee). Thus, Connors failed to carry her burden and summary judgment in favor of Merit was appropriate.

Id. at *1.

However, the Eighth Circuit disagreed with the district court by holding that Connor established a prima facie case of gender discrimination because it only hired males. To that end, the employer, Merit, asserted that it based its decision on several legitimate reasons. The United States Court of Appeals for the Eighth Circuit held that the employer’s stated reasons only presented a question of fact, which precluded the dismissal of the claim and necessitated resolution by a jury:

Most of Merit’s purported evidence that Connors clashed with her supervisors was based on either after-acquired testimony, which could not have influenced its hiring decisions, or contested hearsay statements. See Brooks v. Tri-Systems, Inc., 425 F.3d 1109, 1111 (8th Cir. 2005) (inadmissible hearsay may not be used to support or defeat summary judgment). Regarding safety concerns, Connors testified with sufficient detail to discredit these concerns, for purposes of summary judgment. See McCullough v. Real Foods, Inc., 140 F.3d 1123, 1129 (8th Cir. 1998) (where employer’s asserted nondiscriminatory reasons are essentially checkmated by plaintiff’s denials there a exists reasonable, nonspeculative inference that employer’s action was based on impermissible consideration). Regarding production concerns (failure to “soap” her wells), contemporaneous interview notes suggest this allegation may be unfounded. And, while Connors had 12 years of experience and operated one of the longest routes while at XTO, several of the male lease operators hired by Merit lacked the same depth of knowledge and experience. Merit insists that it was entitled to base hiring decisions on other subjective criteria such as enthusiasm for the job but, based on the record before us, a reasonable jury may doubt the sincerity of this rationale. Id. at 1125-29 (reasonable inference of discrimination arose where employer chose objectively less qualified individual based on subjective criteria, such as his perception of employees’ abilities, work ethic, and dedication). Accordingly, we conclude that Connors provided sufficient evidence—at the summary judgment stage—to establish that Merit’s justifications were a possible pretext for sex discrimination, and so summary judgment in favor of Merit was improper.

Best Gender Discrimination Attorney Blogs on Point:

Do I have a discrimination claim based on not being hired for a job?

Best Employment Lawyer Answer:  If you even think that you were denied a job or not hired because of your race, national origin, gender, age, religion or disability, you should quickly pick up the phone and  call the right attorney to schedule a free and confidential consultation with Spitz, The Employee’s Law Firm. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Our employment discrimination attorneys in Ohio, Michigan, North Carolina, and Kentucky are ready to discuss your legal rights with you.


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