On August 10, 2012, the US Court of Appeals for the Second Circuit issued an opinion in Bucalo v. Shelter Island Union Free School District. Bucalo, the plaintiff, twice applied for a librarian position with a school district and was rejected each time in favor of younger applicants. After the second rejection, Bucalo sued the school district under the ADEA, claiming that the school district discriminated against her on the basis of her age. She also claimed that the school district retaliated against her for filing an EEOC charge of discrimination after she was first rejected for the position.

The district superintendant who denied her an interview on her second application died before the trial. As a result of a debilitating illness, he only executed an affidavit that discussed his reasons for not choosing Bucalo for an interview.

The US District Court for the Eastern District of New York held that the superintendant's affidavit was hearsay, inadmissible as evidence at trial. Since the superintendant was the only person who decided which applicants would receive an interview, the school district instead offered the resumes of the job candidates who applied for the position as circumstantial evidence of the superintendant's motives. The district argued that the resumes show how the other candidates were better qualified for the position than Bucalo.

During the trial, Bucalo moved for a judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure. She argued that the district failed to satisfy its burden of production under the McDonnell Douglas burden shifting standard for discrimination claims because it did not articulate a legitimate, nondiscriminatory reason for its action.

The district court denied Bucalo's motion, holding that the district could use circumstantial evidence to satisfy its burden of production. At the end of the trial, the jury held in favor of the district on all claims.

Bucalo appealed to the Second Circuit, arguing that she should be granted judgment as a matter of law. She argued that the district failed to rebut her prima facie case because it did not provide a nondiscriminatory reason for its adverse action.

The Second Circuit affirmed the judgment of the district court. Under the McDonnell Douglas framework, the employer's burden of production requires that it provide a clear and specific explanation of its legitimate nondiscriminatory reasons for an adverse employment action. But when the employer cannot, through no fault of its own, clearly and specifically articulate its reasons for an adverse employment action, the employer may rely on circumstantial evidence to prove its legitimate and non-discriminatory reasons for an employment action. Therefore, the district could rely on the resumes of Bucalo and the other applicants to prove that the superintendant had legitimate, nondiscriminatory motives for rejecting Bucalo for an interview. The district met its burden of production by providing the resumes.