Job Applicants and Age Discrimination Claims

By Taylor D. Flake-Lawson

A three-judge panel of the United States Court of Appeals for the Sixth Circuit recently upheld the dismissal of a lawsuit initiated by a job applicant.  Flowers v. WestRock Services, Inc., No. 20-1230 (Sixth Cir. Nov. 12, 2020). The applicant, Michael Flowers, had alleged that the company with whom he applied for a job position violated the Age Discrimination and Employment Act (“ADEA”) by denying him the opportunity to interview for a pipefitter job. 

The Application Process

For 30 years, Flowers worked as a pipefitter and welder before retiring in 2013.  A few years after retiring, an employee at WestRock Services, Inc., told Flowers that WestRock was looking for pipefitters.  WestRock’s online application for Journeyman Pipefitter included a section entitled “Required Skills and Experience,” which identified skills such as welding, “[s]electing [the] type and size of pipe and related materials according to job specifications, knowledge of system operation, and study of building plans [and] working drawings.”  Another section also included additional requirements that an applicant must “[b]e able to read blueprints.” 

Flowers submitted an application.  The application was reviewed by a WestRock HR official, who thought that Flowers looked “generally qualified.”  The application was then forwarded to a team lead and supervisor for their feedback.  The team lead replied “no, no, no,” based on his previous work experience with Flowers at another employer.  The team lead noted Flowers’ poor work ethic, and recalled a specific incident where Flowers chose to sit on a bucket to pass time instead of completing a pending project.  The supervisor, who did not know Flowers before seeing his application, called a friend who had previously with worked Flowers.  The friend advised the supervisor to “stay away” from hiring Flowers. 

After two negative references, the HR official who originally thought that Flowers looked “generally qualified” decided to reject Flowers’s application.  The denial generated an automated response informing Flowers that WestRock “decided to move forward with other applicants who more closely match the desired requirements and qualifications for the role.”

Flowers Sues for Age Discrimination

After Flowers received the rejection notice, a WestRock employee informed him that WestRock hired a younger, less experienced worker for the job; Flowers sued WestRock for age discrimination in violation of the ADEA.  His complaint alleged that he was qualified for the pipefitter position and that but for his age, WestRock would have hired him.  During discovery in litigation, Flowers admitted that he did not know how to read building blueprints, nor did he have experience with selecting the type and size of pipe.  He further admitted that just a couple of years before the lawsuit, he refused to get certified in welding because he “didn’t want to be a welder anyway.”  In comparison, WestRock’s current employees in the role for which Flowers had applied welded seven days a week, twelve hours per day.

Following the close of discovery, the District Court granted WestRock’s motion for summary judgment from the bench.  The Court found that Flowers failed to establish a prima facie case of age discrimination because he was not “otherwise qualified” for the position.  The Court further explained that even if Flowers could establish a prima facie case, he failed to show that WestRock’s reasons for not hiring him were false.  Thereafter, Flowers appealed.

Proving Age Discrimination

The ADEA makes it unlawful for an employer to “fail to refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of an individual’s age.”  In order to demonstrate an ADEA violation, a plaintiff must prove by a preponderance of evidence that age was the “but for” cause of the employer’s challenged decision.  Plaintiffs may use either direct or circumstantial evidence to support their claims.  In instances where circumstantial evidence is used, the court proceeds under a burden shifting framework.  Under that framework, the Plaintiff has the initial burden of establishing a prima facie case of discrimination.  If the Plaintiff proves his prima facie case of discrimination, the burden then shifts to the employer to provide a legitimate non-discriminatory reason for its actions. 

To make out a prima facie case of age discrimination, a plaintiff must show that:

1. he/she was at least 40 years old at the time of the alleged discrimination;
2. he/she was subjected to an adverse employment action;
3. he/she was otherwise qualified for the position; and
4. he/she was replaced by a younger worker. 

At the time WestRock denied the Flowers application (an adverse employment action), Flowers was 71 years old.  Thus, Flowers met the first two elements required to establish a prima facie case.

However, Flowers was required to show that he was “otherwise qualified” for the job, yet failed to prove that point.  Flowers failed to establish that his qualifications were at least equivalent to the minimum objective criteria required for employment, as set out in the job description.  Flowers even admitted during discovery that he could not meet two of the job qualifications (selecting the size and type of pipes and reading blueprints), and he further admitted his disinterest in welding which was another job duty.  The District Court found that Flowers failed to show that he was not otherwise qualified, and the Court of Appeals agreed. 

In an effort to meet the “otherwise qualified” element, Flowers attempted to argue that the skills outlined in the job description were not required for the position.  In response, the Court noted that the employer has “superior knowledge of its workplace and industry;” the job requirements will be the objective criteria by which to measure a failure to hire claim.  The District Court rejected the notion that a federal court has a role in substituting their judgment for that of management.  The Court saw no reason not to honor WestRock’s “business decision” on future employee expectations, especially when Flowers cited no history of animosity with WestRock and merely cast doubt on the necessity of the skills outlined in the job description.

No Pretext Here

Further agreeing with the lower court’s findings, the Court of Appeals held that even if Flowers established a prima facie case of discrimination, he failed to establish that WestRock’s justification for not hiring him was pretext for discrimination.  WestRock did not hire Flowers because of the poor reviews about his work ethic.  Flowers had the opportunity to refute that assertion by showing that WestRock’s conclusion had no basis in fact; did not actually motivate [WestRock’s] challenged conduct; or was insufficient to warrant the challenged conduct. 

Flowers had the burden of proving that the reason offered by WestRock’ proffered reason for rejecting his application was not the actual reason for such rejection.  To do so, Flowers would have to provide evidence that WestRock’s stated reasons did not happen.  Instead, Flowers didn’t even deny the existence of the negative references. 

Further, Flowers provided no evidence indicating that his age was a factor at any point during the hiring process.  The employment application did not ask for an age or photograph.  The application only showed his employment history, which was 37 years of total experience.  Given this, the Court of Appeals found that there was no pretext for discrimination.

Practical Considerations for Employers

In light of the Flowers ruling as to job applicants, employers should make certain that a job description for a posted job opening is accurate and lists appropriate job qualifications, and should ensure that applicants are evaluated to determine whether they are, or are not, properly qualified for the job.