Bucalo v. Shelter Island Union Free Sch. Dist., No. 10-CV-1516 (2d Cir. Aug. 10, 2012): The Second Circuit allowed an employer to rely upon circumstantial evidence to prove its legitimate, non-discriminatory reasons for not hiring an applicant when the sole decision-maker and only person with direct knowledge of the decision became terminally ill and then died prior to being deposed. The plaintiff had applied twice for a librarian position in the school district. At the time of her first application, at age 42, she was interviewed but not hired, and subsequently filed a charge of discrimination. Several years later, at age 46, she applied for another librarian position with the school district and, this time, the current superintendent did not even select her for an interview. She again filed a charge of discrimination and later a lawsuit, alleging that the school district failed to hire her based on her age and in retaliation for filing the earlier charge of discrimination.

Shortly before the lawsuit was filed, the superintendent who had made the decision not to interview the plaintiff resigned from his position due to a life-threatening health condition. He was unable to be deposed in the case due to his illness, and then died before trial. At trial, notwithstanding the absence of testimony from the decision-maker, the jury returned a verdict for the school district. The trial court denied the plaintiff’s post-trial motions for judgment as a matter of law, or, alternatively, for a new trial. On appeal, the Second Circuit affirmed, holding that the plaintiff’s prima facie case was properly submitted to the jury because there was a genuine factual dispute. The court further held that the school district had satisfied its burden of production in showing that its decision not to hire plaintiff was for a legitimate, non-discriminatory reason—even though it had to rely on circumstantial evidence, such as the resumes of the plaintiff and other applicants, to do so. The court explained that “in rare cases, such as this one, an employer will be unable, through no fault of its own, to articulate clearly and specifically its legitimate reasons for an employment action.”

This case shows that, even when testimony from a key witness is unavailable, an employer may still prevail. However, the employer will likely need to offer compelling reasons for that individual’s unavailability to appear as a witness as occurred here.

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