Roderick A. McGarry v. Marilyn Pielech

Supreme Court
No. 2013-146-Appeal.
(PC 00-4170)
Roderick A. McGarry :
v. :
Marilyn Pielech et al. :
NOTICE: This opinion is subject to formal revision before publication in
the Rhode Island Reporter. Readers are requested to notify the Opinion
Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Tel. 222-3258 of any typographical or other
formal errors in order that corrections may be made before the opinion is
published.
Supreme Court
No. 2013-146-Appeal.
(PC 00-4170)
Roderick A. McGarry :
v. :
Marilyn Pielech et al. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Flaherty, for the Court. The plaintiff, Roderick A. McGarry, appeals from the
denial of his motion for a new trial after a jury verdict entered in favor of the defendant, Marilyn
Pielech, in her capacity as Treasurer and Finance Director of the Town of Cumberland (town), in
a suit alleging age discrimination in hiring. 1 This case came before the Supreme Court for oral
argument on October 29, 2014, pursuant to an order directing the parties to appear and show
cause why the issues raised in this appeal should not be summarily decided. After hearing the
arguments and examining the memoranda filed by the parties, we are of the opinion that cause
has not been shown and we shall proceed to decide the appeal at this time, without further
briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court.
1
Ms. Pielech is now the sole defendant because the named individual members of the
Cumberland School Committee were granted a judgment as a matter of law at the close of
plaintiff’s evidence, pursuant to Rule 50 of the Superior Court Rules of Civil Procedure. That
ruling was not appealed to this Court.
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I
Facts and Travel
In this appeal, we address the issues arising from the second trial of plaintiff’s claim of
age discrimination arising from the failure to hire him for one of two positions as an English
teacher at Cumberland Middle School. 2 The first time these parties were before this Court, we
affirmed the grant of a new trial for defendant, pursuant to Rule 59 of the Superior Court Rules
of Civil Procedure, on the discrimination claim. 3 On remand to the Superior Court, plaintiff
again litigated the claim of discrimination to a jury, but this time a verdict was returned in favor
of defendant. After the verdict, the trial justice denied plaintiff’s motion for a new trial. The
plaintiff now appeals from the adverse jury verdict.
The events that give rise to the facts underlying plaintiff’s one remaining claim took
place more than fifteen years ago. 4 McGarry v. Pielech, 47 A.3d 271, 275-79 (R.I. 2012)
(McGarry I). McGarry had been employed as a substitute teacher with the Cumberland school
system during the 1997-1998 school year. In July 1998, plaintiff applied for two openings at
Cumberland Middle School, both in the English department, for the 1998-1999 school year. The
plaintiff was interviewed for both positions, but ultimately the town appointed other candidates.
The various candidates, including plaintiff, were interviewed by a committee that consisted of
2
The record notes the school is now called Joseph L. McCourt Middle School.
3
For a complete recitation of the facts and evidence produced at the first trial, see McGarry v.
Pielech, 47 A.3d 271, 275-79 (R.I. 2012) (McGarry I).
4
At the first trial there had been two claims, one of discrimination and one of retaliation.
McGarry I, 47 A.3d at 275. Originally, plaintiff received a favorable verdict on both claims.
However, both verdicts were vacated when the trial justice granted Rule 50 judgments to the
defendant, and in the alternative granted motions for a new trial pursuant to Rule 59 of the
Superior Court Rules of Civil Procedure. On his first appeal, plaintiff did not contest the
judgment, or the alternative grant of a new trial, as to the retaliation claim; therefore, this Court’s
decision addressed only the discrimination claim. McGarry I, 47 A.3d at 279 n.8. In that
opinion, we vacated the Rule 50 judgment on the discrimination claim, but affirmed the Rule 59
grant of a new trial to defendant on the discrimination claim only. McGarry I, 47 A.3d at 286.
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Joyce Hindle-Koutsogiane (Koutsogiane), the principal of the Middle School, and two teachers
from the English department. At the interview, members of the committee took notes, rated each
of the candidates’ responses to a series of questions, and made other general observations that
would be helpful in making the hiring decision. In August 1998, after he was not hired for either
position, McGarry asked Ms. Koutsogiane for permission to review his personnel file. In his
review, plaintiff discovered that there were no interview sheets from the July 1998 interview.
No explanation has ever been offered by defendant as to why the interview sheets were not
available.
After reviewing the file, plaintiff concluded that age discrimination was the explanation
for the town’s failure to hire him for one of the positions. At the time of his application, plaintiff
was fifty-six years of age; the two candidates who were selected to fill the positions were less
than forty years of age. The plaintiff had earned a degree from Providence College in 1968 and a
master’s degree in business from Bryant University in 1980. 5 Further, plaintiff was certified to
teach a number of academic subjects, including English, social studies, and business. McGarry
had taught in the town’s school system previously, during the 1969-1970 school year, but he
spent the next twenty-six years working in a variety of managerial positions in the trucking
industry. Years later, plaintiff decided to reactivate his teaching certificate, and he began
working again in the town as a substitute teacher in the spring of 1997. The following year,
1998, plaintiff began the application process during which he alleges the discrimination
occurred.
In December 1998, McGarry took his claims to the Rhode Island Commission for Human
Rights (commission), alleging that he was not hired for either of the two positions as a result of
5
The first successful candidate had a college degree with specializations in writing and
journalism. The second successful candidate had a master’s degree in teaching.
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age discrimination. On June 27, 2000, the commission gave McGarry a notice of a right to sue,
pursuant to G.L. 1956 § 28-5-24.1(a), allowing him to file a complaint in Superior Court. On
August 8, 2000, plaintiff filed suit against the town and the individual members of the school
committee. The suit alleged two pertinent claims: age discrimination in violation of the Rhode
Island Civil Rights Act, G.L. 1956 § 42-112-1, and the Rhode Island Fair Employment Practices
Act, G.L. 1956 § chapter 5 of title 28, and retaliation based on the same. A trial commenced on
the claims in February of 2010 and it featured the testimony of plaintiff, Ms. Koutsogiane, and
several other officials in the Cumberland school system. When plaintiff testified, he admitted he
had no direct evidence that he was a victim of age discrimination. The missing interview notes
were addressed in the testimony of Ms. Koutsogiane, Mr. Joseph M. Nasif, Jr., the
superintendent of schools from 1996 to 2005, and Mr. Roger Parent, a former principal who was
familiar with the interview process. However, no witness could explain why the interview sheets
were missing from plaintiff’s file and accordingly, the judge gave the jury an instruction on
spoliation of the evidence. 6 On February 24, 2010, a verdict was returned for plaintiff on both
counts; the jury awarded $329,814.18 in damages. However, upon motion by defendant, the
verdicts were vacated and a judgment as a matter of law, in accordance with Rule 50 of the
Superior Court Rules of Civil Procedure, was entered for defendant on both counts.
Alternatively, the trial justice granted defendant’s motions for a new trial, premised on Rule 59,
on both claims.
McGarry appealed the trial justice’s ruling to this Court, but in his appeal, with respect to
the retaliation claim, he failed to address either the Rule 50 judgment entered for defendant or
6
The judge found that it was a regular practice to draft and use these interview sheets as part of
the hiring process and that, at the time of trial, the school department could not locate these
documents. The trial justice told the jury that they “may infer that the missing evidence would
have been unfavorable to the position of the defendant.”
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the Rule 59 grant of a new trial. This Court vacated the trial justice’s Rule 50 finding on the
discrimination claim that was before it, but we affirmed the Rule 59 grant of a new trial on that
one claim. On remand, plaintiff had a second jury trial before a different justice of the Superior
Court. That trial commenced with pretrial motions on December 6, 2012.
On that day, several issues were addressed. The first was the retaliation claim, which
plaintiff’s attorney conceded was no longer viable, stating on the record “[w]e never challenged
that in the Supreme Court, so there’s not much more I can say about whether or not the 1999
retaliation claim survives.” The trial justice agreed, ruling that that claim “will not be going to
the jury here.” Second, defendant moved to exclude certain testimony about a July 26, 1999,
letter the town’s counsel penned in opposition to plaintiff’s original filing with the commission
in 1998. The trial justice allowed plaintiff to testify at the hearing on the motion in limine before
she ruled on the letter’s admissibility. In his testimony, plaintiff disputed certain allegations that
were made in the letter, specifically that he had made a verbal outburst at a school committee
meeting after he learned that he would not be appointed to a business teaching position in the
1997-1998 academic year. The letter further contained an erroneous statement that plaintiff was
not certified to teach English at the time of the 1998 decision on hiring an English teacher. In
ruling on the motion, the trial justice deemed the letter to be inadmissible, except for the limited
purpose of showing the false statement about plaintiff’s teaching certificate. The judge said that
she believed the remaining contested portions, which concerned plaintiff’s decreasing use as a
substitute teacher and the 1997 teaching position, were not in issue, and were not sufficiently
probative on the age-discrimination claim before the jury. The trial justice reasoned that any
possible relevance that the outburst at the school committee meeting might have was
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substantially outweighed by the danger of confusing the issues and misleading the jury, and
therefore she excluded the majority of the letter.
On December 10, 2012, the trial began. On the second day, Ms. Koutsogiane testified
about the hiring process and the use of the interview notes, which she referred to as rating sheets.
She explained that the rating sheets were used to foster discussion between the interviewers after
each interview. She further testified that at the conclusion of the interview process, the
committee selected its top three candidates and then “sen[t] those three with our
recommendations up to the Superintendent’s Office.” During trial, plaintiff indicated that he
would seek a jury instruction that, because defendant failed to preserve the records from the 1998
interview, there had been a violation of a federal regulation, 29 C.F.R. § 1602.14 (2012), 7 as well
as G.L. 1956 § 28-6.4-1. 8 The trial justice addressed the requested instructions before
Superintendent Nasif testified because she presumed her ruling would impact plaintiff’s
questioning of him. The trial justice refused to offer a specific instruction to the jury, as plaintiff
had requested, because she found the two laws inapplicable to plaintiff’s case. Citing the
7
The regulation is published by the Equal Employment Opportunity Commission (EEOC) under
the powers delegated to it by federal labor laws. See 29 C.F.R. § 1602.1 (2012) (listing the
purpose and scope of the record-keeping regulations). The regulation states in relevant part:
“Where a charge of discrimination has been filed * * * against an employer under
title VII, the [Americans with Disabilities Act], or [Genetic Information
Nondiscrimination Act], the respondent employer shall preserve all personnel
records relevant to the charge or action until final disposition of the charge or the
action.” Id. § 1602.14 at 176.
8
If given proper notice, employers are required by this statute to allow their employees to
inspect their personnel files, except:
“This section does not apply to records of an employee relating to the
investigation of a possible criminal offense or records prepared for use in any
civil, criminal, or grievance proceedings, any letter of reference,
recommendations, managerial records kept or used only by the employer,
confidential reports from previous employers, and managerial planning records.”
G.L. 1956 § 28-6.4-1(a)(4).
-6-
language of the regulation, the trial justice ruled that because plaintiff’s claim was not “filed
against an employer under [T]itle VII or the [Americans with Disabilities Act],” 29 C.F.R. §
1602.14 did not apply because it was meant to apply to only those “particular acts.” 9 Further, the
Rhode Island statute, § 28-6.4-1, did not apply because the interview notes were similar to
“letters of reference and recommendations,” which are exempt from the requirement concerning
the inspection of records. However, when she instructed the jury, the trial justice did include the
standard spoliation instruction with regard to the missing interview notes.
On December 13, 2012, the jury returned a verdict for defendant. The plaintiff filed a
motion for a new trial, which the trial justice denied. The plaintiff made a timely appeal to this
Court.
II
Standard of Review
This Court has held that “the admissibility of evidence is a decision within the sound
discretion of the trial justice.” State v. Dubois, 36 A.3d 191, 199 (R.I. 2012) (citing State v.
Merida, 960 A.2d 228, 237 (R.I. 2008)). Thus, we will affirm the hearing justice’s decision
unless he or she has not properly exercised that discretion. Id. When considering proposed jury
instructions, the hearing justice has a duty to ensure that the instruction given to the jury
“adequately cover[s] the law” the jury must consider to decide the case. State v. Long, 61 A.3d
439, 445 (R.I. 2013) (quoting State v. Cardona, 969 A.2d 667, 674 (R.I. 2009)). We review such
instructions, and objections thereto, to ensure that “the jury charge ‘sufficiently addresses the
9
The term “Title VII,” referenced by the trial justice comes from the language of the regulation
itself and refers to the equal employment opportunities provisions of Title VII of the Civil Rights
Act of 1964, codified at 42 U.S.C. §§ 2000e through 2000e-17. See 29 C.F.R. § 1602.01(defining scope of the regulation plaintiff cites). Title VII prohibits discrimination in
employment on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2.
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requested instructions and correctly states the applicable law.’” Id. (quoting State v. Sivo, 925
A.2d 901, 913 (R.I. 2007)). Mixed questions of law and fact are reviewed with a similar
deference to that given to findings of fact; they will not be disturbed absent a showing that the
trial justice overlooked or misconceived material evidence. Casco Indemnity Co. v. O’Connor,
755 A.2d 779, 782 (R.I. 2000) (citing Wickes Asset Management, Inc. v. Dupuis, 679 A.2d 314,
317 (R.I. 1996)).
Further, this Court need only address issues presented to it and we expect if not “demand
that the briefs before us will contain all the arguments that the parties wish us to consider * * * .”
Estate of Meller v. Adolf Meller Co., 554 A.2d 648, 654 (R.I. 1989). Article I, Rule 16(a) of the
Supreme Court Rules of Appellate Procedure explicitly states that “[e]rrors not claimed,
questions not raised and points not made ordinarily will be treated as waived * * * .” Even when
a party has properly preserved its alleged error of law in the lower court, a failure to raise and
develop it in its briefs constitutes a waiver of that issue on appeal and in proceedings on remand.
See Bowen Court Associates v. Ernst & Young, LLP, 818 A.2d 721, 728 (R.I. 2003) (citing Roe
v. Gelineau, 794 A.2d 476, 482 n.6 (R.I. 2002)); see also David A. Wollin, Rhode Island
Appellate Procedure § 16:6 (West 2004) (“[t]he waiver is effective for purposes of the appeal at
issue and throughout any future proceedings after the case is remanded”).
III
Discussion
On appeal, plaintiff advances three arguments. First, plaintiff argues that the trial
justice’s decision to disallow questioning on portions of the July 26, 1999, letter from
defendant’s counsel to the commission was error. Second, he urges that the trial justice’s refusal
to impart a jury instruction on a federal regulation and a state statute misconstrued the law.
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Lastly, plaintiff contends that the judge erred in not allowing him to present evidence of his
retaliation claim. We conclude that these arguments lack merit and we will address them in turn.
A. Preclusion of the 1999 Letter
Questions on admission of evidence are rightly settled by the trial justice. Rule 104(a) of
the Rhode Island Rules of Evidence (“the admissibility of evidence shall be determined by the
court”). When exercising this authority, the trial justice has broad discretion and will not be
determined to be in error if he or she properly exercises that discretion. See Dubois, 36 A.3d at
199. A trial justice may properly exclude evidence, although relevant on some point, if its
probative value is substantially outweighed by the risk of confusing the issues before the jury.
See Rule 403 of the Rhode Island Rules of Evidence (“evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury”); Accetta v. Provencal, 962 A.2d 56, 60 (R.I. 2009) (reciting the process for
admission of evidence). The plaintiff claims that there was error occasioned by the failure to
admit the 1999 letter from defendant’s counsel to the commission as well as by the trial justice’s
refusal to allow him to question witnesses about the letter. The trial justice did allow plaintiff to
address the factual inaccuracy in the letter pertaining to his teaching certificate, and plaintiff did
do so at trial. What the trial justice did not allow were the statements in the letter about the
school department’s declining use of plaintiff as a substitute teacher, the alleged outburst at the
school committee meeting, and a 1997 business teacher position that was not in issue in the
discrimination claim.
The plaintiff argued that the letter was relevant because it evidenced the shifting
rationales that defendant had for not hiring him for either of the two English teacher positions,
thereby demonstrating that defendant’s reasons were a mere pretext for age discrimination.
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However, the trial justice decided that any probative value those portions of the letter would have
for this purpose was outweighed by the risk of confusion of the issues and thus it had the
potential to mislead the jury. It is significant that the jury in plaintiff’s second trial was deciding
only the discrimination claim for the 1998 teaching vacancies. After a review of the record, it is
our opinion that the trial justice was within the bounds of her discretion when she excluded the
letter from the jury’s consideration at plaintiff’s trial, and we will not disturb her decision.
B. Jury Instruction on 29 C.F.R. § 1602.14 and § 28-6.4-1
A trial justice has the duty to ensure that the charge she gives to the jury appropriately
states the applicable law in the case before it. Long, 61 A.3d at 445. Here, McGarry asked the
trial justice to instruct the jury on two pieces of legislation, both of which the judge found to be
inapplicable. The first was 29 C.F.R. § 1602.14, a federal regulation promulgated to require
employers to adhere to the record-keeping requirements of Title VII, the Americans with
Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA). See 29
C.F.R. § 1602.1 (defining the purpose and scope of the record-keeping regulations). The second
was § 28-6.4-1, which pertains to the records an employer must allow an employee to inspect.
See chapter 6.4 of title 28.
The trial justice determined that the facts of the case before the jury did not warrant an
instruction on either enactment because neither was germane to the claim in dispute. The trial
justice noted that the federal regulation and the section in which it was found “was promulgated
to aid in the enforcement of particular acts.” Those legislative enactments, she noted, were
expressed in 29 C.F.R. § 1602.14, as Title VII, the ADA, and GINA, and plaintiff’s claim did not
involve any of them. The plaintiff’s suit advanced state law claims only.
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The trial justice determined that § 28-6.4-1 did not apply because the interview notes in
question were not the types of documents that an employee has a statutory right to inspect.
Rather, she found that they were akin to “letters of reference and recommendations,” which the
statute exempts. Ms. Koutsogiane testified that the purpose of the interview rating sheets was to
assist the committee in making its recommendation to the superintendent, not to make the
ultimate decision of whom to hire. The trial justice concluded that the interview rating sheets
were “not a record having to do with hiring. These are notations.” The trial justice allowed the
jury to consider the fact that the rating sheets were missing, by way of a spoliation instruction,
but she declined to instruct on the Rhode Island statute, reasoning that it did not apply to this
type of document. We see no error in the trial justice’s determinations.
C. Preclusion of Retaliation Claim
This Court strongly adheres to its “waive-or-raise” rule that requires parties to raise
allegations of error in the lower court and argue the issue in their briefs on appeal. Rule 16(a)
(“questions not raised and points not made ordinarily will be treated as waived”); Bowen Court
Associates, 818 A.2d at 728. The plaintiff’s first trial included a claim for retaliation, in addition
to the claim for age discrimination. At the conclusion of the first trial, the trial justice wrote a
decision addressing both claims, and he granted the defendant a judgment as a matter of law
explicitly on “[the] [p]laintiff’s age discrimination and retaliation claims.” In the alternative, the
trial justice granted the defendant’s motions for a new trial, also on both claims. In the plaintiff’s
first appeal to this Court, he did not raise or argue either the Rule 50 judgment granted to the
defendant or the Rule 59 grant of a new trial with respect to his claim of retaliation. McGarry I,
47 A.3d at 276 n.4 (“[o]n appeal, plaintiff did not pursue his retaliation claim”). Considering the
nature of the first trial justice’s plainly unambiguous conclusion, it is our opinion that the
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plaintiff should have known that he would be required to pursue his retaliation claim on appeal
or it would be waived. See Estate of Meller, 554 A.2d at 654 (this Court expects that “the briefs
before us will contain all the arguments that the parties wish us to consider”). Indeed, at a
pretrial hearing in advance of the plaintiff’s second trial, his counsel conceded, “[w]e never
challenged that in the Supreme Court.” The second trial justice, relying on this Court’s mandate,
correctly prohibited any evidence on the retaliation claim because it would unnecessarily confuse
the issues before the jury. See Rule 403. We agree, and this Court is satisfied that the justice’s
ruling complied with our mandate in McGarry I. 47 A.3d at 286.
IV
Conclusion
For the reasons stated in this opinion, we affirm the judgment of the Superior Court and
remand the record thereto.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Roderick A. McGarry v. Marilyn Pielech et al.
CASE NO: No. 2013-146-M.P.
(PC 00-4170)
COURT: Supreme Court
DATE OPINION FILED: January 14, 2015
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice Francis X. Flaherty
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Kristin E. Rodgers
ATTORNEYS ON APPEAL:
For Plaintiff: William T. Murphy, Esq.
For Defendant: Marc DeSisto, Esq.