## Facts

- NYCHA interviewed Rita Walsh and five male applicants for five bricklayer openings.
- A four-person NYCHA panel conducted interviews; one panelist asked most technical questions, and hiring decisions were made collectively after discussion.
- NYCHA employed no female bricklayers at the time, and interviewers were unaware of any prior female bricklayers at NYCHA.
- An NYCHA human-resources representative, Osagie Akugbe, oversaw the process and communicated hiring outcomes to candidates.
- NYCHA hired the five male applicants and did not hire Walsh.
- Walsh alleged Akugbe told her she was not hired because the interviewers wanted “somebody physically stronger,” which she argued reflected a sex-based stereotype.

## Issues

1. Whether Akugbe’s statement explaining why Walsh was not hired was admissible at summary judgment as an opposing party’s statement by an employee under Federal Rule of Evidence 801(d)(2)(D).
2. Whether, considering that statement and viewing the record favorably to Walsh, a reasonable jury could find sex discrimination under Title VII and the NYSHRL.

## Decision

- The Second Circuit vacated the grant of summary judgment for NYCHA on the Title VII and NYSHRL claims and remanded.
- The court held the district court erred by excluding Akugbe’s “physically stronger” statement as hearsay.
- With the statement considered, the record could support an inference that NYCHA’s hiring decision was influenced by sex-based considerations, making summary judgment improper.

## Legal Principles

- Under Fed. R. Evid. 801(d)(2)(D), a statement is not hearsay when offered against a party and made by the party’s employee on a matter within the scope of employment during the employment relationship.
- An employee tasked with administering aspects of a hiring process and communicating decisions may speak within the scope of employment when conveying the employer’s stated reason for a hiring outcome.
- On summary judgment, courts must view evidence and draw reasonable inferences in favor of the nonmoving party; if admissible evidence could allow a reasonable jury to find discriminatory intent, the claim should proceed.
- Evidence suggesting reliance on stereotyped assumptions about physical strength may support an inference of sex discrimination under Title VII and parallel state law.

## Conclusion

The Second Circuit ruled that the HR representative’s explanation for Walsh’s non-selection was admissible as an employee statement within the scope of employment, and that, once considered, it created a triable issue as to whether NYCHA’s failure to hire Walsh resulted from sex-based stereotyping rather than a neutral assessment of qualifications.


Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70 (2d Cir. 2016)