In sex discrimination action involving
a failure to hire, plaintiff must show as part of prima facie
case that the successful applicant was not within her protected class.
Underwood v. Perry County
Com’n, 431 F.3d 788 (11th Cir. December 5, 2005) – This is a Title VII and
42 U.S.C. Section 1983 Equal Protection Clause action alleging failure to
hire based on gender. When Section 1983 is used as a parallel remedy for
violation of Title VII, the elements of the two causes of action are the
same. The fourth prong of the prima facie case requires a showing
that “equally or less qualified individuals outside of her protected class
were considered or hired for the position.” The plaintiff does not have to
show that a particular individual received the position sought. For example,
it might be enough to show that men are always hired for a particular
position. In this case, the Eleventh Circuit affirms the grant of summary
judgment because the plaintiff failed to establish the fourth prong of the
prima facie case.
