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Male nurse's gender bias suit dismissed because he didn't pursue job hard enough

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A male nurse who failed to win a transfer to a medical center's operating room did not make a reasonable effort to obtain it, says an appeals court in upholding the dismissal of a U.S. Equal Employment Opportunity Commission sex discrimination lawsuit filed on his behalf.

Employees at Mexico, Missouri-based Audrain Health Care Inc. are required to fill out a “request for transfer” form when they want to switch jobs, says Monday's ruling by the 8th U.S. Circuit Court of Appeals in St. Louis in Equal Employment Opportunity Commission v. Audrain Health Care Inc., dba Audrain Medical Center.

David Lunceford had worked as registered nurse at Audrain since 2004, including in its critical care unit and post-anesthesia care unit. In March 2010, while working part-time in the post-anesthesia care unit, Audrain posted job vacancies for positions in the critical care unit and the operating room, according to the ruling.

Mr. Lunceford completed a ”request for transfer” form for the critical care unit, and received approval from Audrain's human resources department; Linda Brooks, the clinical coordinator of the post-anesthesia care and operating units; and Audrain's chief executive office.

However, in April 2010, after having received approval to work in the critical care unit, he asked Ms. Brooks if she would consider him or train him for the operating room position. While there is dispute over precisely how she responded, Ms. Brooks admitted she told him she wanted to fill the position with a woman in order to have the right mix of patients to staff. Audrain has a policy of giving patients the right to have a health care provider of the same gender in the room during treatment, said the ruling.

Mr. Lunceford later told Ms. Brooks' supervisor he no longer wanted to work for Ms. Brooks, and he never filled out a request for transfer for the operating room position, according to the ruling.

Since January 2009, no employees have transferred to a specialized unit without having prior experience in those units, the ruling said. Mr. Lunceford did not have any experience as an operating nurse and was not qualified for the position without further training for the job, which requires “specialized, specific job knowledge,” according to the ruling. A female nurse who also had requested a transfer to the position was not considered because she had no operating room nursing experience as well, the ruling said.

In July 2010 the vacancy was filled with a female nurse with 11 years of operating room experience, according to the ruling.

The EEOC filed suit on Mr. Lunceford' s behalf in U.S. District Court in Hannibal, Missouri, in August 2011, charging sex discrimination, and the District Court granted Audrain's motion to dismiss the case.

A unanimous three-judge unanimous panel of the 8th Circuit upheld the dismissal.

An employee who does not formally apply for a position must make “every reasonable attempt” to convey his or her interest, said the appeals court, but that was not the case here, the court concluded.

“Lunceford had a single conversation with Brooks about the position and in a subsequent conversation with Brooks' supervisor, he told the supervisor he no longer wanted to work with Brooks,” said the ruling.

“Moreover, although the (operating room) vacancy was the first of the two posted vacancies, Lunceford expressed his interest in the (operating room) position to Brooks nearly a month after he requested — and Brooks approved — a transfer” to the critical care unit, just six days before he was to start there, said the ruling, in upholding the lower court's dismissal of the case.