New England Biz Law Update
A substitute teacher who was turned down for open teaching positions could sue for age discrimination based on evidence that interview sheets were missing from his personnel file, the Rhode Island Supreme Court has ruled in a split decision.
The teacher argued that the Cumberland School Department’s spoliation of evidence entitled him to an inference in his favor.
The court agreed, finding that the trial judge should not have awarded the defendant judgment as a matter of law.
“Viewed in the light most favorable to plaintiff, a reasonable jury could find that the rankings set forth in the missing interview sheets suggested that plaintiff’s qualifications were commensurate with the other candidates,” Justice Maureen McKenna Goldberg wrote for the majority.
“We are of the opinion that disbelief of a defendant’s proffered explanation for not hiring a plaintiff, combined with a suspicion of mendacity in connection with destroyed evidence and the elements of a prima facie case, may be sufficient evidence to survive a Rule 50 motion for judgment as a matter of law,” Goldberg said.
Justice William P. Robinson III “respectfully but vigorously” dissented, maintaining that the spoliation doctrine was inapplicable.
“In my candid opinion, the majority is opening the flood gates to a great deal of unnecessary litigation; as I understand the majority’s opinion, a trial justice could never grant a motion for a judgment as a matter of law or for summary judgment when a defendant employer did not maintain its personnel records with military precision,” Robinson said.
The 27-page decision is McGarry v. Pielech, et al.
William T. Murphy of Providence argued the appeal on behalf of the plaintiff. Marc DeSisto of Providence represented the employer.
Job hunting
Plaintiff Roderick A. McGarry worked as a substitute teacher in Cumberland. In July 1998, having just received his certification to teach English, he applied for two open teaching positions at Cumberland Middle School.
The plaintiff was interviewed for both positions but, ultimately, was not selected.
In December 1998, at the age of 56, the plaintiff filed a formal charge with the Rhode Island Commission for Human Rights alleging that the Cumberland School Department’s decision not to hire him was the result of age discrimination.
In the spring of 1999, the plaintiff applied and was interviewed for a third teaching position at Cumberland Middle School, this time as an English/social studies teacher. The plaintiff was not hired for that position, either.
After obtaining a “right to sue” letter from the Human Rights Commission, the plaintiff filed a Superior Court complaint invoking the Rhode Island Civil Rights Act and the Rhode Island Fair Employment Practices Act.
Because the School Department was unable to produce the 1998 interview sheets at trial, the trial judge determined that a spoliation instruction was appropriate. Accordingly, the judge determined that the jury “may infer that the missing evidence would have been unfavorable to the position of the defendant.”
The employer moved for judgment as a matter of law, arguing that no evidence existed in the record from which the jury could determine that “age played any role in [the] hiring decisions.”
The motion was denied and the jury returned a verdict for the plaintiff in the amount of $329,814.18.
Thereafter, the defendant filed a motion for a new trial and renewed its motion for judgment as a matter of law.
The judge found that it was an error of law to allow the jury to draw an adverse inference from the missing interview sheets because there was “no extrinsic evidence to support that inference.”
Finding that there was “no legally sufficient evidentiary basis upon which a reasonable jury could find [p]laintiff was discriminated against on the basis of age,” the judge granted the defendant’s motion for judgment as a matter of law.
The judge also granted, in the alternative, the defendant’s motion for a new trial, opining that the jury gave “an inordinate amount of weight” to the missing interview sheets and that the evidence presented at trial did not support the jury’s finding of age discrimination.
Missing evidence
On appeal, the Supreme Court found that the trial judge erroneously concluded that Rhode Island caselaw requires plaintiffs to produce some corroborating evidence to accompany the negative inference that may be made in light of missing evidence.
“We are of the opinion that by requiring additional evidence to support the inference, exclusive of the evidentiary benefit from the adverse inference, the trial justice erroneously increased plaintiff’s burden of proof,” Goldberg stated. “Indeed, if a plaintiff were required independently to prove a discrimination case apart from the adverse inference arising from the spoliation doctrine, the benefit conferred by the spoliation instruction would lose all efficacy,” she wrote, adding that “spoliation evidence has both a prophylactic and punitive purpose.”
Goldberg said that, in cases in which a jury detects “[t]he odor of an orchestrated effort on the part of [the] defendant to suppress relevant evidence that was harmful to [the] defendant’s case,” it may be appropriate for a jury to conclude that a defendant is liable based on an adverse inference that supplies a crucial element of the claim, even without substantial corroborating evidence.
“In sum, rejection by the jury of an employer’s proffered reasons for not hiring a plaintiff ‘will permit the trier of fact to infer the ultimate fact of intentional discrimination.’ Nevertheless, although rejection of a defendant’s proffered reasons is sufficient as a matter of law to sustain a finding of discrimination, the ultimate finding of discrimination must be made by the fact-finder,” she said.
When the evidence produced at trial demonstrates that spoliation “was the result of mere negligence, the adverse inference arising from a spoliation instruction, without more, may not be sufficient to establish the elements of the claim,” Goldberg said. “In such a case, a verdict resting solely or chiefly on an adverse inference would be against the weight of the evidence.”
The majority emphasized that the 1998 interview sheets went missing while in the defendant’s sole care and control.
“There was no explanation for the loss of this evidence,” Goldberg noted.
“McGarry also presented evidence that defendant had misrepresented his certification status to the Commission,” she pointed out. “This circumstantial evidence could establish an evidentiary mosaic that, while not of the ‘smoking gun’ variety, nonetheless could convince the jury that age discrimination was the reason plaintiff was not hired, particularly if the jury detected bad faith on the part of defendant.”
The majority nevertheless upheld the trial judge’s decision to award the defendant a new trial.
“Given the body of evidence produced at trial and the trial justice’s conscientious review of the record, we cannot say that the trial justice’s determination that ‘the jury gave an inordinate amount of weight and credence to the missing interview notes’ clearly was wrong,” Goldberg said.
