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Bucalo v. Shelter Island Union Free Sch. Dist., No. 10-1516 (2d Cir. Aug. 10, 2012)

Here's a case that addresses the vexing question, "What happens when a key fact witness in a Title VII/ADEA trial - the defendant's decision maker - dies before he/she can offer testimony?"  The Second Circuit's answer is that the employer in those circumstances can rely on circumstantial evidence, here a folder of resumes that the decision maker reviewed when making the hiring decision at issue. So holding, the court affirms a jury verdict for the school district, allowing the paperwork to stand in the place of live testimony about the reasons why the plaintiff was not hired.

Bucalo v. Shelter Island Union Free Sch. Dist., No. 10-1516 (2d Cir. Aug. 10, 2012): The order of proof in a typical Title VII case calls for an employee to establish a "prima facie" case of discrimination under the standards of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): that the plaintiff is in a protected class, that she was qualified for employment, that she suffered an adverse action and that she was treated relatively less well than others outside of her protected class. If the employee furnishes sufficient proof on each of these elements, the employer may proffer admissible proof of a legitimate, non-discriminatory reason for the decision, which the employee may rebut with evidence that the employer could not have believed the proffered reason, or that a discriminatory reason was more likely the true reason for the employer's decision. (The formula essentially holds with ADEA cases as well.)

With the intensive focus in many Title VII cases on the employer's reasons for making a decision, what happens when the decision maker - owing to no one's fault - is unavailable to testify.

The Second Circuit reviews just such a case here. The plaintiff - challenging the failure of the school district to hire her - lost at a jury trial. She plaintiff alleged age and gender discrimination, and retaliation. Below on post-trial motions and on appeal, she argued that she should have prevailed as a matter of law, because the employer was unable to present testimony based on personal knowledge from the decision maker about the reasons for not hiring her as a school librarian.

Shortly after plaintiff filed her case, the superintendent who made the hiring decision became too ill to be deposed and eventually died. In place of his testimony - where he presumably would have defended that he did not know the applicant's age, and in any event selected a candidate with superior credentials - the trial judge allowed the district to submit the resumes of the applicants that the superintendent reviewed. The plaintiff argued that the resumes were not a substitute for the decision maker's testimony about his reasons, in addition to  presenting hearsay problems. She relied on the holding in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), that "if, on the evidence presented, (1) any rational person would have to find the existence of facts constituting a prima facie case, and (2) the defendant has failed to meet its burden of production," then the "court must award judgment to the plaintiff as a matter of law" under Rule 50(a). Id. at 509.

The Second Circuit affirms for two reasons. First, Hicks does not compel entry of judgment for the employee where - as here - the prima facie case is in part contested (here, the two sides squared off about whether the plaintiff was qualified and whether she identified proper comparable candidates who were treated better than she).

Second, where the witness with personal knowledge becomes unavailable, the panel holds that a Title VII defendant can substitute with circumstantial evidence. "We believe that the district court did not err by permitting the District to rely upon circumstantial evidence - i.e., Bucalo's resume and the resumes of the other applicants, which were properly admitted as business records - to prove Lanier's legitimate, non-discriminatory reasons for not hiring Bucalo. To hold otherwise under the unusual circumstances of this case would be to adhere to an excessively inflexible version of the McDonnell Douglas framework."

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