McGarry v. Pielech

• Decision Date: 06 July 2012
• Docket Number: No. 2010–386–Appeal.,2010–386–Appeal.
• Citation: McGarry v. Pielech, 47 A.3d 271, 115 Fair Empl.Prac.Cas. (BNA) 1201, 281 Ed. Law Rep. 1128 (R.I. 2012)
• Parties: Roderick A. McGARRY v. Marilyn PIELECH, et al.
• Court: Rhode Island Supreme Court

47 A.3d 271

115 Fair Empl.Prac.Cas. (BNA) 1201

281 Ed. Law Rep. 1128

Roderick A. McGARRY

v.Marilyn PIELECH, et al.

No. 2010–386–Appeal.

Supreme Court of Rhode Island.

July 6, 2012.

William T. Murphy, Esq., for Plaintiff.

Marc DeSisto, Esq., Providence, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice GOLDBERG, for the Court.

This case came before the Supreme Court on March 6, 2012, on appeal by the plaintiff, Roderick A. McGarry(plaintiff or McGarry), from a final judgment in favor of the defendant, the Town of Cumberland School Department(defendant or school department), granting the defendant's motion for judgment as a matter of law pursuant to Rule 50 of the Superior CourtRules of Civil Procedure, based on the trial justice's conclusion that the plaintiff failed to present sufficient evidence that the defendant had discriminated against the plaintiff on the basis of his age.¹In February 2010, a jury trial commenced on the plaintiff's claims of age discrimination and retaliation; the jury returned a verdict in the plaintiff's favor.However, after trial, the trial justice granted a motion for judgment as a matter of law on both claims and, in the alternative, granted the defendant's motion for a new trial.

On appeal to this Court, plaintiff assigns error to the trial justice's posttrial Rule 50 ruling and argues that the jury verdict should be reinstated.Specifically, plaintiff contends that the trial justice erred by granting judgment as a matter of law because (1)defendant failed to offer a nondiscriminatory reason for not hiring plaintiff; and (2) the trial justice erred in ruling that an adverse inference resulting from the spoliation of evidence, without additional extrinsic evidence, cannot satisfy plaintiff's burden of proof—and, notwithstanding the foregoing, plaintiff contends that he did present such extrinsic evidence.The plaintiff also assigns error to the trial justice's alternative decision granting defendant's motion for a new trial.For the reasons stated herein, we reverse in part and affirm in part the judgment of the Superior Court, and remand the case for a new trial.

Facts and Travel

The underlying facts that gave rise to this case began well over a decade ago, when McGarry applied for a series of open teaching positions in the Cumberland school system.During the 1997–1998 school year, plaintiff worked as a substitute teacher in Cumberland.In July 1998, having just received his certification to teach English, plaintiff applied for two open teaching positions at Cumberland Middle School: one as a full-time English teacher, and one as a part-time English teacher.McGarry was interviewed for both positions, but, ultimately, he was not selected.In December 1998, McGarry—who was then fifty-six years old—filed a formal charge with the Rhode Island Commissionfor Human Rights (Commission)² alleging that the Cumberland school department's decision not to hire him was the result of age discrimination.³Subsequently, in the spring of 1999, 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.

On August 8, 2000, after obtaining a right to sue letter from the Commission in accordance with G.L.1956 § 28–5–24.1(a), plaintiff filed suit against the school department, invoking the Rhode Island Civil Rights Act and the Rhode Island Fair Employment Practices Act.McGarry alleged that he was the victim of age discrimination based on the failure of the school department to hire him for either of the two open teaching positions in 1998, or for the English/Social Studies teaching position in 1999.⁴

A jury trial commenced in February 2010.The plaintiff testified about his education and work history and stated that in 1968he earned an undergraduate degree in economics, and later an MBA degree.McGarry stated that he worked as a teacher at Cumberland High School from 1969 to 1970, but left to work in the trucking industry—a more lucrative field—where he remained for twenty-six years until he reactivated his teaching certificates in 1996.In 1997, plaintiff began substitute teaching in the Cumberland school system.The plaintiff testified that upon learning of a probable teaching vacancy in Cumberland Middle School's English Department for the 1998–1999 school year, he enrolled in two English courses, and in July 1998, he obtained a certificate to teach English.⁵

The plaintiff described the hiring process, beginning in July 1998, for a full-time and a part-time teaching position at Cumberland Middle School.He was interviewed for both positions by a committee consisting of the school principal, Joyce Hindle–Koutsogiane(Koutsogiane), and two English teachers from the middle school.The plaintiff testified that the interview was “pleasant” and that the questions posed to him were appropriate and generally pertained to “teaching philosophies.”When questioned whether the interviewers took notes, McGarry indicated that although he“didn't see a lot of writing” during the interview, he was sure the panel did so after he left the interview.

In August, when McGarry learned that he had not been selected for either position, he sought access to his personnel file, and he discovered that the interview sheets were missing from his file.According to the record, the interview sheets consist of prepared documents on which the interviewers take general handwritten notes about the candidate and rate—on a scale of one to five—the candidate's response to each of the eight questions posed by the interview committee.The interviewers also provide their overall ranking of a candidate on these interview documents.No explanation has been forthcoming about how or why these documents came to be missing.

McGarry testified that he believed that he was the victim of age discrimination with respect to the three open positions because he could think of no other reason that the school department would not hire him.Although at trial plaintiff asserted that Koutsogiane had discriminated against him “to some degree,”he also admitted that Koutsogiane had written a letter of recommendation on his behalf and was the person who had informed him of one of the teaching vacancies; McGarry further admitted that he had no direct evidence tending to show that he had been the victim of age discrimination.

Principal Koutsogiane also testified at trial.She described the selection process for new teachers, which involves candidate interviews with a committee, and typically culminates with the submission of between one and three names to the superintendent.She testified that the ultimate hiring decision is made by the superintendent.According to Koutsogiane, she kept a separate copy of her interview sheets from McGarry's 1999 interview.She testified that her interview sheets for the 1998 interview had been forwarded to the school department's central office along with the list of recommended candidates.Koutsogiane denied discriminating against plaintiff and testified that no one on the interview committee had mentioned or discussed plaintiff's age as a reason for not hiring him.She further cited multiple examples in which the Cumberland school department hired teachers who were over the age of forty.

Koutsogiane specifically testified about the selection process in 1998 that resulted in the selection of candidates other than plaintiff.She stated that for the two English positions, plaintiff had been ranked fourth among the applicants, and that only the top three names were submitted to the superintendent for consideration, in accordance with the usual practice.Koutsogiane recalled that Hannah Goodman(Goodman) ultimately was hired for the full-time position and Cecille Palumbo(Palumbo) was selected for the part-time position.⁶Concerning the 1999 position, Koutsogiane testified that at the completion of the interview process, plaintiff was ranked third among the candidates, but that the committee elected to submit only one name to the superintendent—Tracy Tellier(Tellier), the top-ranked applicant, who ultimately was hired for the position.Tellier—who was around thirty-six years old at the time of her hiring—had worked for the Cumberland school department for the previous nine years in various capacities and had been a student teacher at the same school where the vacancy existed.Koutsogiane testified that although plaintiff was a “pretty good” candidate, she believed that the candidates who were selected for the three vacancies had superior qualifications.

Also testifying at trial was Joseph Nasif(Nasif), the superintendent of schools in Cumberland from 1996 to 2005.He stated that while interview committees usually forward their interview sheets to the central school department office, there was no policy requiring them to do so.Nasif was unsure whether the school department retained the missing interview sheets.He also admitted that when responding to McGarry's allegation of age discrimination, a representative of the school department erroneously notified the Commission that McGarry was not certified to teach English; according to Nasif, the erroneous response was the result of an “issue” with the school department's certification roster.

Roger Parent(Parent), the former principal of North Cumberland Middle School, also testified.Parent described the hiring process for teaching vacancies in the Cumberland school system.He stated that members of an interview committee receive packets containing candidates' application materials, along with interview sheets upon which they can take general notes and assess—on a scale of one to five—the candidates' answers to a series of identical questions.He additionally testified that typically the interview sheets, containing the candidate's ranking, are sent to the school...