Fool's gold?

I have written a lot about the Second Circuit's Title VII pretext jurisprudence over the years. In short, the Supreme Court says that plaintiff has to show that management's reason for firing him was false, or a pretext. The Second Circuit usually requires something more than just pretext, i.e., independent evidence of racial or gender animus. But the Court sometimes (without explanation) retreats from that model, as it did in D'Cunha v. Genovese/Eckert Corp., 479 F.3d 193 (2d Cir. 2007).

D'Cunha's second appeal was decided by the Second Circuit on March 8. The Court of Appeals had D'Cunha's case in 2007, reversing summary judgment because the store rejected D'Cunha's application in favor of two younger women, and the reason that defendant gave for this decision was questionable. Nothing in the 2007 decision suggested anything particularly ageist about all of this, other than the age of plaintiff and the employees who instead got the job. So that was not a pretext-plus case.

After winning in the Court of Appeals in 2007, the case went to trial on remand, and D'Cunha lost. The jury did not find age discrimination. He does not win the appeal this time around. It's very difficult to win your appeal after the jury rejected your claims, and this case is no different. As the Second Circuit (Walker, Parker and Hall) summarizes the case at trial:

viewing the evidence in the light most favorable to the Appellee, a reasonable jury could conclude that age was not the “but for” cause of the Appellee’s failure to hire D’Cunha in either August 2001 or February 2002. The Appellee presented evidence that, in August 2001, D’Cunha requested a full-time position in New Jersey, close to New York and accessible by public transportation, and that it did not have such a position available. It also presented evidence that D’Cunha stated that he was not interested in the Sussex opening in February 2002. Although D’Cunha argues that the jury erroneously credited the testimony of the Appellee’s witnesses instead of his, in ruling on a motion for judgment as a matter of law, a court may not make credibility determinations and “must disregard all evidence favorable to the moving party that the jury is not required to believe.”

When the Second Circuit in 1997 adopted the pretext-plus formula in Fisher v. Vassar College, 114 F.3d 1332, the New York Law Journal ran an article on the implications of this new landscape. A lawyer who represented employers said that it was just as well, since pretext alone was not going to win trials, and that mere pretext was "fool's gold" without additional evidence of discrimination. That is not always true, but it's worth remembering as plaintiffs' lawyers devote thousands of dollars into cases that may not prevail at trial. The real lesson here is that a good case on paper may not pan out at trial.