By Lorene D. Park, J.D. The mere fact that a job applicant received an autoreply email that his application had been received and would be reviewed did not show individuals involved in a hiring process actually reviewed his application and knew of his age at the time another candidate was selected, ruled a federal district court in Maryland, granting summary judgment for the employer on his ADEA claim. His Title VII retaliation claim also failed because there was no evidence decisionmakers knew he filed discrimination charges against a prior employer (Belyakov v. Henry M. Jackson Foundation, February 9, 2016, Chasanow, D.). The plaintiff, who was born in 1960, had a medical degree and had worked as a senior staff scientist at the National Institutes of Health (NIH), against which he had filed EEOC charges. In December 2012, he applied online for a position as a Senior Science Adviser with the Henry M. Jackson Foundation, which staffs federally-sponsored medical research programs, including the HIV/AIDS research program to which the plaintiff applied. He received an email confirmation stating “[y]our online application has been successfully submitted” and “[w]e will review your background to determine if your qualifications are commensurate with the posting requirements. If it passes our initial screening, we will contact you.” He did not speak with anyone about the position and claimed that he was informed in January 2013 that he was not selected. Hiring process. The foundation’s hiring manager and her assistant posted the science adviser opening to the online database on November 7, 2012, but did not list a deadline for applying. When candidates applied, the online system sent an autoreply email confirming receipt, though the system did not notify any foundation employee when applications were received. On November 21, the hiring manager started screening online applications. She also received an application of a candidate (the one eventually hired) by email from the project director who found the resume “promising” and noted that he had received the application materials from an NIH employee who would work closely with whoever was hired. Any online application received after November 26 was not reviewed and was simply stored in a database. Interviews of the top four candidates took place between December 6 and 18, and the successful candidate accepted the job on January 11, 2013. Once he was officially hired on February 4, the online application system was updated to reject all others. ADEA and Title VII claims. Filing suit, the plaintiff claimed that his application was rejected because of his age and in retaliation for his having filed complaints against his former employer, the NIH. He claimed he had been subjected to “continuous retaliation regarding denial of any employment opportunities in which NIH is affiliated.” Age discrimination claim fails. Granting summary judgment on the ADEA claim, the court concluded that the plaintiff failed to make a prima facie showing that his age was the “but-for” cause of the foundation’s decision. The evidence established that the decision to hire the successful candidate was made before anyone involved in the selection process knew that the plaintiff had applied or had any information about his age. Indeed, all those involved testified that they had never heard of him until they learned of his EEOC charge in mid-February 2013. Autoreply email did not show knowledge of application or age. The plaintiff claimed that it could be inferred from the email response to his online application that foundation employees reviewed his application and took note of his age, but the court disagreed. “Absent more, an automated e-mail reply is insufficient to show that the hiring team viewed Plaintiff’s application or recognized his protected status.” Nor was there any evidence that any NIH employee with influence over the foundation’s hiring process knew the plaintiff applied for the position or was aware of his age. Indeed, the undisputed facts showed that after November 26, no additional online applications were reviewed by the foundation, including the plaintiff’s application. Even assuming the plaintiff made out a prima facie case, he could not show that the legitimate reason for the foundation’s failure to hire him (decisionmakers were unaware of his application and his applications was treated the same as all others received after November 26) was pretextual. His mere speculation was simply not enough to raise a triable issue. Title VII retaliation claim fails also. Likewise, summary judgment was granted on the plaintiff’s retaliation claim for lack of a causal connection between the adverse decision and his prior EEOC complaints against the NIH. An employer cannot take an action based on a factor of which it is unaware, noted the court, and the evidence showed that the decisionmakers did not know of his application or his earlier protected activity.
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