The United States Court of Appeals for the Second Circuit recently held that, when an employment discrimination plaintiff satisfies the requirements of a prima facie case under the McDonnell Douglas framework, and the relevant decision maker is unavailable, an employer can rebut the inference of discrimination by using circumstantial evidence to show its legitimate, nondiscriminatory reason for the adverse employment action. The case is Bucalo v. Shelter Island Union Free School District.

The plaintiff, Stephanie Bucalo, applied for a school librarian position with the defendant school district, and she was not hired. In the lawsuit, Ms. Bucalo alleged that her rejection was motivated by age discrimination and retaliation for an earlier EEOC charge. The school district’s former superintendent, who was the sole decision-maker and the only person with direct knowledge of the decision not to hire the plaintiff, died before trial. His testimony was not preserved.

Ms. Bucalo established a prima facie case of discrimination and retaliation under the McDonnell Douglas burden-shifting framework. She argued that she was entitled to judgment as a matter of law because, in the absence of the sole decision-maker’s testimony, the school district could not rebut her prima facie case by showing a nondiscriminatory reason for her rejection. The jury returned a verdict for the school district, the District Court denied Ms. Bucalo’s post-trial motions, and the Second Circuit affirmed.

The Second Circuit held that disputed issues of fact regarding the plaintiff’s prima facie case were properly submitted to the jury even if the defendant had not articulated a legitimate, nondiscriminatory reason for rejecting the plaintiff’s application. The Second Circuit also held that the school district had satisfied its burden of production under the second step of the McDonnell Douglas framework. 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.” For that reason, the court affirmed the district court’s decision to permit the school district to rely on circumstantial evidence to prove the legitimate, non-discriminatory reasons for not hiring the plaintiff. The court noted, “to hold otherwise under the unusual circumstances of this case would be to adhere to an excessively inflexible version of the McDonnell Douglas framework.”

This decision should serve as a reminder to preserve testimony when there is a danger that a witness will not be available at the time of trial. However, this decision also shows that when key witnesses are unavailable and testimony was not preserved, all is not lost. In light of this decision, employers should present all other evidence at their disposal, especially when they can offer compelling reasons for a witness’s unavailability.