Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against any individual with respect to the terms and conditions of employment because of certain protected characteristics, including gender. In order to support a claim under Title VII, an individual must point to an “adverse employment action” that was taken again him or her because of the protected characteristic.

The 8th U.S. Circuit Court of Appeals held recently that the failure to apply for a particular position, in the absence of evidence of “gross and pervasive discrimination” that would deter applicants from applying for the job, and without “every reasonable attempt to convey” interest in that job removes the matter from the protections of Title VII. Lunceford v. Audrian Health Care, Inc., 8th Cir., No. 13-1720 (June 30, 2014).

David Lunceford is a registered nurse with experience in both the Critical Care Unit (CCU) and Post Anesthesia Care Unit (PACU) of Audrian Medical Center in Missouri. During his employment as a part-time PACU nurse, Lunceford was told by the clinical coordinator of the hospital’s PACU and the Operating Room (OR) that she wanted to fill an open OR nurse position with a female nurse “in order to have the right mix of patients to staff based on gender.”

Subsequently, the Equal Employment Opportunity Commission (EEOC) filed a complaint on Lunceford’s behalf, alleging that by refusing to consider Lunceford for a vacant OR position, Audrian violated the law.  That complaint was dismissed by the lower court, which found that because Lunceford did not apply for the OR position, there was no actual adverse employment action upon which to base a Title VII claim.

On appeal, the Eighth Circuit reviewed the background facts and found that:

  • Audrian allows nurses to transfer between nursing units in the various departments and posts vacancy notices to allow current employees to apply for transfer.
  • To apply for transfer, an employee must complete a Request to Transfer form, after which the Human Resources (HR) Department reviews the applicant’s file to      ensure that the employee meets the qualifications for the position.
  • If HR approves the transfer, the application is routed to the relevant department director and executive administration for approval.
  • After departmental/administrative approval, the transfer is deemed effective, although it may take up to 30 days for the formal transfer to occur.
  • Once the employee obtains administrative approval for the transfer, he or she is not eligible to transfer to another position except as provided by hospital policy.
  • In March 2010, Lunceford completed a Request for Transfer from his then-current position in PACU to an open position in CCU.
  • On that same day, HR approved the request on March 26, Linda Brooks, clinical coordinator for both CCU and the OR, approved the request, and Lunceford was scheduled to start in CCU beginning on April 22, 2010.
  • On April 26, 2010, Lunceford – who had no prior OR experience – asked Brooks if she would consider him or train him for an open OR position, which required specialized, specific job knowledge.
  • Brooks responded that she wanted to fill the open OR position with a female nurse, in order to have a “right mix of patients to staff based on gender.” (Audrian has a policy that gives patients the right to have a health care provider of the same gender in the room during treatment.)
  • Lunceford never filled out a Request for Transfer form for the OR position, nor did he follow up further regarding the position. Instead, the EEOC brought the legal action on his behalf.
  • The district court granted summary judgment in favor of Audrian, dismissing Lunceford’s case.

After review, the Eighth Circuit upheld the lower court’s decision granting summary judgment to Audrian. It found that the EEOC failed to establish direct evidence of discrimination, and that the EEOC also had failed to establish the prima facie case of discrimination necessary to support indirect evidence of discrimination. In both of those situations, the EEOC would have had to show an “adverse employment action,” and could not do so.

The Court concluded that Lunceford did not suffer an adverse employment action because he never formally applied for the OR position and that further, Lunceford was unable to show that there was any overt discrimination to keep him from doing so. In fact, although the OR vacancy was the first of the two open positions to be posted, Lunceford did not express interest in it until nearly a month after he requested (and was approved for) the transfer to PACU. Based on those facts, Lunceford was unable to show that he made “every reasonable attempt” to convey any actual interest in the OR position.

While this case comes to a commonsense conclusion – one cannot complain not to have been hired for a position for which one never actually applied – it also reminds employers that there are exceptions to that premise, and that individuals who are able to make a showing of a discriminatory atmosphere that is severe enough to dissuade hiring, transfer, or promotion, may be able to support a claim of discrimination based upon a position for which there was no formal application.