What happens when the decisionmaker in a Title VII case dies? Without his testimony, can the employer prove its nondiscriminatory reason? The Second Circuit has never addressed this issue, until now.
The case is Bucalo v. Shelter Island Union Free School District, decided on August 10. Plaintiff sued the school district for age discrimination and retaliation after she was twice denied the position of school librarian. The first time she was denied this position in 1999, plaintiff filed an EEOC charge but did not bring a lawsuit. After she was again denied the position four years later, plaintiff sued for retaliation. After the lawsuit was filed, the decisionmaker, Lanier, died. Prior to his death, as he was too ill to provide deposition testimony, Lanier signed an affidavit that explained why plaintiff was denied the position in 2003: he thought plaintiff had an unstable work history and he denied that her age or prior EEOC charge had anything to do with the job denial. At trial, the court said the affidavit were inadmissible hearsay. Plaintiff lost at trial, and argues on appeal that she is entitled to judgment as a matter of law because, without Lanier's testimony, the school district cannot prove its age-neutral reason for denying her position.
The Court of Appeals (Straub, Winter and Lynch) rejects plaintiff's argument and affirms the verdict. In St. Mary's Honor Center v. Hicks (2003), the Supreme Court said that if the plaintiff conclusively proves her prima facie case and the employer does not meet its burden of proving a legitimate reason for the adverse action, then the plaintiff wins as a matter of law. That rule does not help plaintiff here because the jury had a factual basis to find that plaintiff did not prove her prima facie case. Specifically, the jury could find that plaintiff was not denied the position under circumstances creating an inference of discrimination because it could find that Lanier did not know that plaintiff was significantly older than the woman who was offered the position; Lanier had never met plaintiff and the the resumes of plaintiff and the selectee suggested that both were in their early 30's. As for the retaliation claim, same result. The jury could have found there was no causal connection between the first EEOC charge and the 2003 position denial because of the lengthy time gap and that Lanier was not involved in the 1999 position denial.
Even if plaintiff did conclusively prove her prima facie case, the fact that Lanier was unable to testify at trial does not mean that plaintiff could win the case as a matter of law. There were other ways for defendant to prove that plaintiff was denied the position in 2003 for legitimate reasons. The Court of Appeals has held that "a defendant's failure to 'come forward with a non-discriminatory reason' does not compel a jury verdict for the plaintiff if the defendant 'furnishes a satisfactory explanation for its inability to tell the reason why plaintiff was disfavored.'" Defendant had a compelling reason in this case: Lanier died prior to trial and was too sick to provide deposition testimony. Meanwhile circumstantial evidence -- including plaintiff's questionable resume and the selectee's superior qualifications -- permitted the jury to find that the school district had a legitimate reason to deny plaintiff the job.