In Blankenship v. Caterpillar Global Mining, LLC, the Court denied an employer’s motion for summary judgment on the grounds that the Plaintiff, an applicant for employment who the employer had not hired, had presented sufficient evidence to create a jury question about whether the employer’s reason for failing to hire her was a pretext for gender discrimination under the West Virginia Human Rights Act (“WVHRA”).  The Court held that, at the summary judgment stage, an applicant plaintiff need only provide circumstantial evidence that could lead a jury to infer a discriminatory motive in the employer’s refusal to hire.  With regard to establishing pretext, if the employer has articulated a nondiscriminatory reason for its refusal to hire then the applicant need only provide evidence that would raise a question about whether employer’s offered reason was a pretext for discrimination.  Discrimination need not be the sole reason behind the employer’s refusal to hire so long as the applicant can put forth evidence showing that discrimination played a significant part in the employer’s adverse decision.   

The case involved a woman who sought employment as a warehouse worker with the Defendant mining company.  She alleged that she was overlooked because of her gender for the six positions for which she applied.  The employer argued that the Plaintiff applicant had failed to offer evidence that could lead a jury to conclude that “but for” her protected status she would have been hired.  According to the employer, other candidates were hired instead of the Plaintiff because they were either more qualified, or the Plaintiff had not applied for the position.  In denying the employer’s motion, the Court first addressed the very minimal hurdle of establishing a prima facie case of employment discrimination, i.e., the Plaintiff just needs to offer some evidence from which a reasonable juror could infer that the employer’s decision not to hire was based on gender.  

To prove a prima facie case for employment discrimination a plaintiff must prove (1) that she is a member of a protected class, (2) that the employer made an adverse decision concerning her and (3) that but for the plaintiff’s protected status, the adverse decision would not have been made.  Once the plaintiff has shown that she can meet her low burden of proof to get into court, the burden then shifts to the employer to provide evidence that it had a legitimate, nondiscriminatory reason for the adverse employment action.  If the plaintiff is unable to offer evidence which would lead to a question of fact about whether the employer’s reason is a pretext for discrimination then summary judgment is proper, and the case must be dismissed.  

The inquiry into whether the Plaintiff had offered enough evidence of pretext to get to the jury was a very fact intensive inquiry with the Court analyzing the hiring process for each of the six positions individually.  Ultimately, it was the fact that the Defendant mining company had articulated a specific interviewing and hiring process then clearly deviated from the policy used on numerous occasions when the only candidates to be considered were female that led the Court to deny the employer’s motion for summary judgment.  The inconsistencies were enough to allow the Plaintiff to reach the jury on the question of whether employer’s non-discriminatory reason for overlooking her was pretext for a discriminatory motive.  Moreover, the Court held that the evidence was equally sufficient to allow the Plaintiff to reach the jury on the question of whether the decision not to hire her was made with malice allowing the jury to potentially award punitive damages.

Summary judgment is appropriate when an employer can offer a legitimate, nondiscriminatory reason for its decision, and the plaintiff is unable to present evidence sufficient to create a question of whether a discriminatory motive played a significant role in that decision.  Here, the Court found that there was significant evidence that the employer deviated from its stated application and hiring process on numerous occasions to the detriment of the Plaintiff.  Employers should remember that discrepancies in the application of policies relating to hiring or other aspects of the employment relationship can create an inquiry into the motive behind that discrepancy and can be enough to allow a plaintiff to get to the jury in an employment discrimination suit.

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