Robert F. Byrnie v. Town of Cromwell, Board of Education, Body Corporate Cromwell Board of Education Body Corporate, 243 F.3d 93, 2d Cir. (2001)
Robert F. Byrnie v. Town of Cromwell, Board of Education, Body Corporate Cromwell Board of Education Body Corporate, 243 F.3d 93, 2d Cir. (2001)
Robert F. Byrnie v. Town of Cromwell, Board of Education, Body Corporate Cromwell Board of Education Body Corporate, 243 F.3d 93, 2d Cir. (2001)
2001)
Appeal from judgment of the United States District Court for the District
of Connecticut (Gerard L. Goettel, Judge) dismissing plaintiff's age and
sex discrimination claims on summary judgment. Affirmed in part,
reversed in part.[Copyrighted Material Omitted][Copyrighted Material
Omitted][Copyrighted Material Omitted]
BEECHER A. LARSON, East Haven, Connecticut, for PlaintiffAppellant.
SHEILA A. HUDDLESTON, Shipman & Goodwin, Hartford,
Connecticut, for Defendants- Appellees.
Before: WALKER, Chief Judge, MINER, and POOLER, Circuit Judges.
POOLER, Circuit Judge:
Plaintiff Robert F. Byrnie appeals from a judgment of the United States District
Court for the District of Connecticut, Gerard L. Goettel, Judge, dismissing his
complaint alleging defendants Town of Cromwell Public Schools and
Cromwell Board of Education ("Cromwell") failed to hire him for a part time
teaching position as an art teacher on the basis of his age, in violation of the
Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. 621 et
seq., and on the basis of his gender, in violation of Title VII of the Civil Rights
We presume familiarity with the district court's thorough decision. See Byrnie
v. Town of Cromwell Pub. Schs., 73 F. Supp. 2d 204 (D. Conn. 1999).
In the spring of 1995, the Cromwell Board of Education decided to hire a parttime art teacher for Cromwell High School. Following the steps laid out in the
Board of Education's "Recommended Procedures for Hiring," Cromwell
advertised for a permanent, part-time art teacher in June, 1995. Applicants were
required to submit a letter of application, a resume, transcripts, a letter of
reference, and proof of Connecticut certification. Although the posting
announcing the opening indicated that the only prerequisite for applicants was
current Connecticut teaching certification, Cromwell's job description for the
position (which was not itself posted) specified, among other things, that the
appropriate candidate have a degree in art education. Byrnie, who was 64 at the
time, had a bachelor's and a master's degree in art education and had taught art
at the high school level for 21 years. He had been substitute teaching at
Cromwell High School for the five years prior to applying for the position and
had been serving as the advisor to Cromwell High School's literary magazine.
In addition, Byrnie was certified to teach at the high school level in the areas of
Art, History, Social Studies, and Adult Education.
4
The second round of interviews were conducted by Nappi and Cromwell High
School's Assistant Principal, Joseph Cassella, who each individually
interviewed the candidates on July 18, 1995. Each interviewee was asked the
same questions by the same interviewer in the same order. After the interviews,
Cassella and Nappi conferred and agreed that Mancarella was the best
candidate for the position. Nappi telephoned Mancarella, informing her that she
was being recommended for the position and telling her to set up an
appointment to meet with Superintendent James Gere. After the meeting, Gere
submitted Mancarella's name to the Board of Education which approved her
appointment on August 8, 1995. Mancarella was a 42 year old with a bachelor's
degree in fine arts as well as some graduate course work. Although Mancarella
had no experience teaching art at the high school level, she had four years
experience teaching art at the middle school level and had been teaching art on
a part-time basis at a treatment center for children identified as Socially
Emotionally Maladjusted. In 1994, she had received a teaching award.
6
Meanwhile, on July 24, 1995, Byrnie received a letter informing him that he
had not been selected for the position. Convinced of his superior qualifications,
Byrnie contacted Gere and was told that he had been considered the least
qualified of the four candidates considered for a second round of interviews
and, in fact, he participated in the second round only as courtesy because of his
service to the school system. At that time, Gere explained the hiring procedures
followed by the search committee. Byrnie followed up on his concerns by
meeting with Gere on July 27, 1995 and meeting with Nappi and Casella on
August 8, 1995. At the August 8 meeting, Byrnie was denied a copy of the
interview questions, but was permitted to examine them. In spite of Byrnie's
repeated requests, he was denied copies of the interview questions and
Mancarella's application materials until he filed a complaint under the
Connecticut Freedom of Information Act ("FOIA").
On August 5, 1997, Byrnie filed a complaint with the district court alleging that
Cromwell discriminated against him on the basis of his age, in violation of the
Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. 621 et
seq., and on the basis of his gender, in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000e et seq., and Title IX of the Education
Amendments of 1972, as amended, 20 U.S.C. 1681 et seq.1 Discovery
produced testimony undermining the CCHRO Answer's claim that familiarity
with the CCI was one of the factors used to evaluate the candidates and
suggested that neither Mancarella nor any of the other candidates had any
significant familiarity with the CCI. In affidavits, two of Byrnie's interviewers,
Nappi and Cassella, stated that Byrnie was not hired because he did not
demonstrate familiarity with the basic competencies of effective teaching.
On October 25, 1999, the district court dismissed all of Byrnie's claims in
response to Cromwell's motion for summary judgment. The district court held
that Byrnie had made his prima facie case: Byrnie was qualified for the
position he applied for, but the position was given to a 42 year old woman. See
Byrnie, 73 F. Supp.2d at 210. The district court also found that Cromwell had
offered a legitimate reason for failing to hire Byrnie: Mancarella was judged
the better candidate based upon subjective criteria. See id. Byrnie's case failed
because there was not enough evidence to allow a jury to find Cromwell's
explanation to be pretextual and to allow an inference of discrimination.
Byrnie's paper credentials, while better than Mancarella's, were not so
overwhelmingly better as to allow an inference of discrimination based on that
alone. See id. at 213. Cromwell's subjective choice of Mancarella over Byrnie
based on her superior interviewing performance was proper because the choice
did not appear to be influenced by any discriminatory bias. See id. at 213-14.
The selection process itself, the district court held, did not treat the applicants
differently and thus could not support an inference of discrimination. See id. at
218. And Byrnie's statistical evidence showing that Cromwell's teaching force
had a lower percentage of males than Connecticut's state-wide average could
not, without a further showing of the cause of the statistical disparity, support a
disparate treatment claim. See id. at 218. The statistical evidence also failed to
support a disparate impact claim because Byrnie failed to allege an
employment practice responsible for the under-representation of males and the
elderly among Cromwell's teaching hires. See id. at 221. Finally, Byrnie's
argument that the CCI-based interviewing questions caused a disparate impact
on older job applicants was dismissed because he provided the court with no
DISCUSSION
11
12
The ADEA makes it unlawful for an employer "to fail or refuse to hire... any
individual... because of such individual's age." 29 U.S.C. 623(a)(1). The
protections of the ADEA reach individuals who are at least 40 years old. See 29
U.S.C. 631(a). Similarly, Title VII makes it unlawful for an employer "to fail
or refuse to hire... any individual... because of such individual's race, color,
religion, sex, or national origin." 42 U.S.C. 2000e-2(a)(1). A plaintiff utilizes
the same evidentiary framework for demonstrating either age discrimination or
sex discrimination. See Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198-99
(2d Cir.), cert. denied, 528 U.S. 965 (1999); Fisher v. Vassar Coll., 114 F.3d
1332, 1335 (2d Cir. 1997) (en banc). A plaintiff alleging a violation of either
statute must establish, by a preponderance of the evidence, a prima facie case
consisting of four elements: (1) that plaintiff falls within the protected group,
(2) that plaintiff applied for a position for which he was qualified, (3) that
plaintiff was subject to an adverse employment decision and (4) that the
adverse employment decision was made under circumstances giving rise to an
Once a prima facie case has been established, the burden of production shifts to
the employer who must defeat a rebuttable presumption of discrimination by
articulating a legitimate, non-discriminatory reason for the employment
decision. See Carlton, 202 F.3d at 134; Raskin v. Wyatt Co., 125 F.3d 55, 64
(2d Cir. 1997). If the employer offers, via admissible evidence, a justification of
its action which, if believed by a reasonable trier of fact, would allow a finding
of no unlawful discrimination, then "'the McDonnell Douglas framework-with
its presumptions and burdens'-disappear[s], and the sole remaining issue [is]
'discrimination vel non.'" Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct.
2097, 2106 (2000) (citation omitted).
14
15
Taking the facts in the light most favorable to the non-moving party, Byrnie
easily made out a prima facie case. He was a 64 year old male job applicant
who, no one disputes, was eminently qualified for the art teacher position that
Cromwell awarded to 42 year old female Mancarella, an applicant substantially
younger than Byrnie. See Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310,
317 (2d Cir. 1999) (noting that "the fact that the replacement is substantially
younger than the plaintiff is a more valuable indicator of age discrimination,
than whether or not the replacement was over 40"). Cromwell, in turn,
17
In terms of paper credentials, Byrnie was the better qualified candidate for the
job. Byrnie had 21 years' experience working as an art instructor at a number
of different high schools. Further, Byrnie had spent six years as a substitute
teacher at Cromwell High School. Mancarella, by contrast, had four years'
experience teaching art at the middle school level, along with eight additional
years' part-time teaching experience as an art instructor. Byrnie had a bachelor's
and a master's degree in Art Education, while Mancarella had a bachelor's
degree in Fine Arts and some graduate study course work. Both candidates
presented strong recommendations. Finally, while both candidates had
credentials sufficient for the position, technically Mancarella lacked the
requisite education: the position called for a bachelors degree in Art Education,
while Mancarella possessed a degree in Fine Arts.
18
the same time, "the court must respect the employer's unfettered discretion to
choose among qualified candidates." Fischbach, 86 F.3d at 1183; see also
Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs.,
165 F.3d 1321, 1330 (10th Cir.) ("Our role is to prevent unlawful hiring
practices, not to act as a'super personnel department' that second guesses
employers' business judgments.") (citations omitted), cert. denied, 528 U.S. 815
(1999).
19
20
candidate on the strength of her paper credentials. The credibility of the Search
Committee is not helped by the fact that it needed to relax the educational
requirements of the position in order for Mancarella to survive these initial
screenings, let alone be selected as the most deserving of an interview. 3 Further,
the Search Committee had to ignore the requirement that an application be
complete in Mancarella's case because her application was missing transcripts
from a number of the colleges she had attended. To be sure, this alone does not
support a finding of pretext; lawful reasons can easily be found for the low
ranking of Byrnie's application in comparison to his less experienced
competitor-for example, his self-presentation in the application cover letter
may have been off-putting. See Byrnie, 73 F. Supp.2d at 216 (suggesting a
variety of lawful reasons that could explain the ranking of Byrnie's application).
Similarly, the failure to screen out Mancarella's application based on its being
incomplete and her lacking the appropriate qualifications is not enough on its
own to call into question the good faith of the hiring process because these are
not significant irregularities. See Weinstock v. Columbia Univ., 224 F.3d 33, 45
(2d Cir. 2000) (noting that procedural irregularities may "'raise a question as to
the good faith of the process where the departure may reasonably affect the
decision.'") (quoting Stern, 131 F.3d at 313). Nevertheless, a reasonable trier of
fact is entitled to find that it does bear on the credibility of the employer which
must finally be evaluated from the perspective of the entire record.
B. Subjective Hiring Criteria
21
Cromwell only used the applicant's paper credentials to determine who would
be selected for interviews. Mancarella was chosen as the most qualified
candidate on the strength of her interview performances. The two men who
interviewed Byrnie in his last interview both affirmed that "[h]is responses did
not demonstrate that he was the most qualified candidate for the position. In my
judgment, his responses did not demonstrate familiarity with the basic
competencies necessary for effective teaching."
22
24
over classes for extended periods when other teachers were on leave. It strains
credulity to believe that a teacher unfamiliar with the competencies necessary
for effective teaching would be relied upon for so long. This is particularly the
case given that one of Cromwell's own teachers wrote a glowing
recommendation for Byrnie stating that Byrnie was the English Department's
first choice for long-term substitute teaching assignments.
25
26
The two answers are not necessarily inconsistent. By dropping reference to the
CCI in the affidavits of Nappi and Casella, Cromwell extricates itself from the
misleading nature of the CCHRO Answer, although the fact that the answer
attempts to portray as important to the outcome of the hiring process Byrnie's
unfamiliarity with a document the successful candidate had, at best, only
limited familiarity with herself is pertinent information for the trier of fact.
Unfortunately for Cromwell, downplaying the importance of the CCI results in
the claim that a person with over twenty years teaching experience lacks
familiarity with the basics of teaching in and of themselves. A juror could
believe that the latter statement was the result of an attempt to salvage an
earlier explanation that was collapsing during civil discovery-and the apparent
Cromwell relies as well on Byrnie's poor interviewing skills as the reason for
choosing Mancarella for the position and calls attention to Byrnie's own
testimony about his interview answers as proof. Because we are not a superpersonnel department, it does not matter whether we find Byrnie's interview
responses appropriate. An employer is entitled to arrive at a subjective
evaluation of a candidate's suitability for a position. The issue here is whether
such a poor interview performance could make credible Cromwell's asserted
justifications for its hiring decision. Byrnie's interview performance speaks to
the question whether he or Mancarella was more qualified for the job-one of
the justifications Nappi and Cassella advanced for not hiring Byrnie. It is not
probative, however, of their basic claim that Byrnie lacked "familiarity with the
basic competencies necessary for effective teaching." Further, when the latter
claim is juxtaposed with the former, one may reasonably question "whether age
[or gender] was not a factor in the application of... subjective criteria or the
formation of... subjective impressions"concerning Byrnie's interview
performance. Widoe, 147 F.3d at 730.
28
Cromwell's dual explanations for the hiring decision, and the lack of evidence
(and even countervailing evidence) of one of their justifications might raise a
material question about Cromwell's real reason for not hiring Byrnie. We need
not decide whether this mixed bag of evidence is by itself sufficient to defeat
summary judgment, however, because we conclude that Cromwell's destruction
of evidence, in combination with the evidence undermining Cromwell's
justification is adequate to defeat summary judgment.
C. Spoliation
29
Cromwell concedes, the application materials were not the only materials
destroyed. The "written ballot form that Mr. Nappi provided" to the screening
committee members to enable them to rank the 21 applications to determine
which applicants would receive an interview was missing, along with the tally
sheet that compiled their votes. Also missing were the forms on which, as the
CCHRO Answer explains, "[e]ach Committee member independently wrote
down his or her top three choices for the job opening, in order of preference,"
after the first round of interviews, along with the tally sheet adding up the
votes.4 In addition, any notes made by the interviewers in the first and second
rounds of interviews-and Nappi testified that it was likely that such notes were
made--were destroyed. Finally, the notes Nappi relied upon in drafting the
summary of the hiring process that the CCHRO Answer was based upon are
missing.
30
31
(2d Cir. 1999), cert. denied, 528 U.S. 1119 (2000). In light of this, we
concluded a case by case approach was appropriate. See id. Finally, a court
must determine "whether there is any likelihood that the destroyed evidence
would have been of the nature alleged by the party affected by its destruction."
Kronisch, 150 F.3d at 127. The burden falls on the "prejudiced party" to
produce "some evidence suggesting that a document or documents relevant to
substantiating his claim would have been included among the destroyed files."
Id. at 128.
32
The district court dealt with this issue by noting that there was no evidence
indicating when the missing documents were destroyed or with what state of
mind. See Byrnie, 73 F. Supp.2d at 208 n. 8. Nevertheless, Cromwell had to
have had notice of the prospect of potential litigation at the time the notes that
formed the basis for Cromwell's CCHRO Answer were destroyed since it is
only logical to anticipate that a complaint lodged with the CCHRO might be
pursued at a later date in a court room. The CCHRO Answer, further, promises
to make available to the CCHRO "the name or any identifiable information
about any [applicants]" if needed-suggesting that applicant information existed
at the time the CCHRO Answer was prepared. And, arguably, Cromwell had
notice of potential litigation even earlier: in October, 1995, Cromwell received
a FOIA request seeking materials related to the hiring process, and on August 8,
1995, in a meeting with Nappi and Cassella, Byrnie had expressed concerns
about the hiring process and asked for copies of the interview questions. Gere
testified that "shortly after the process was completed it became very apparent
to us that Mr. Byrnie had concerns," and explained that when the FOIA request
was received, he was assured by Nappi that "information" had been "retained."
See Kronisch, 150 F.3d at 127 (documents destroyed years before suit brought
could reasonably be found to have been destroyed in anticipation of litigation
where fear of potential future litigation plausibly motivated the spoliation).
33
Although no one could say when all the documents related to the 1995 art
teacher job search were destroyed, Gere testified at his deposition that
destruction of personnel records sometime after an employee search was
concluded was a routine process. However, in the end, it does not matter when
the documents were destroyed since even if the documents were destroyed days
after the search ended and before anyone had wind of Byrnie's 'concerns,'
Cromwell was still required by federal regulations implementing Title VII and
the Americans with Disabilities Act to retain all records pertaining to
employment decisions for a period of two years. See 29 C.F.R. 1602.40.5
34
Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 716 (7th Cir. 1998) ("The
violation of a record[-]retention regulation creates a presumption that the
missing record contained evidence adverse to the violator."); Favors v. Fisher,
13 F.3d 1235, 1239 (8th Cir. 1994) (because employer violated record retention
regulation, plaintiff "was entitled to the benefit of a presumption that the
destroyed documents would have bolstered her case"); Hicks v. Gates Rubber
Co., 833 F.2d 1406, 1419 (10th Cir. 1987) (same); see also Steffen Nolte, The
Spoliation Tort: An Approach to Underlying Principles, 26 St. Mary's L.J. 351,
368-69 (1995) (collecting cases announcing a tort cause of action for spoliation
based on violation of record-retention regulations). We agree that, under some
circumstances, such a regulation can create the requisite obligation to retain
records, even if litigation involving the records is not reasonably foreseeable.
For such a duty to attach, however, the party seeking the inference must be a
member of the general class of persons that the regulatory agency sought to
protect in promulgating the rule. Cf. W. Page Keeton, et al., Prosser and Keaton
on Torts 36, at 224-25 (5 th ed. 1984) (describing similar requirement for
finding a statutorily created duty in tort). For example, violation of a rule that
records be retained for securities disclosure purposes would not create a duty to
preserve covered records for use in a subsequent employment discrimination
suit. On the other hand, where, as here, a party has violated an EEOC recordretention regulation, a violation of that regulation can amount to a breach of
duty necessary to justify a spoliation inference in an employment discrimination
action. Cf. Favors, 13 F.3d at 1239 (Title VII rules, Title VII action); Hicks,
833 F.2d at 1419 (same). In such a case we can be confident that the
responsible agency had in mind persons in the plaintiff's position and
accordingly that our finding a duty to preserve documents in such circumstances
will advance the goals of the rule.
35
Although a regulation may supply the duty to preserve records, a party seeking
to benefit from an inference of spoliation must still make out the other usual
elements of a spoliation claim. The party must demonstrate first that the records
were destroyed with a culpable state of mind (i.e. where, for example, the
records were destroyed knowingly, even if without intent to violate the
regulation, or negligently). Second, a party must show that the destroyed
records were relevant to the party's claim or defense.
36
We are satisfied that Byrnie has established both. Cromwell admitted its policy
to destroy such records soon after the hiring process had been completed and
that the records in this case were so destroyed. At no point has Cromwell
asserted that their destruction was merely accidental. This is evidence of
intentional destruction sufficient to show a culpable state of mind on
Cromwell's part. Given that we have held that bad faith-an intent to obstruct the
There is also ample evidence that the documents were relevant to Byrnie's case.
While the district court was correct in finding the missing applications to be
minimally relevant, the missing notes the interviewers made during the first
and second rounds of interviews have more relevance. Those notes would
clarify what aspects of Byrnie's interview performances were reflected in the
poor subjective evaluation he received from the Search Committee and whether
that evaluation adhered to permissible criteria. Further, the documents Nappi
relied upon in preparing the memo that formed the basis of Cromwell's CCHRO
Answer would be relevant as well, given that the answer has been undermined
by the deposition testimony of Nappi and others. Keeping in mind that "holding
the prejudiced party to too strict a standard of proof regarding the likely
contents of the destroyed evidence would subvert the prophylactic and punitive
purposes of the adverse inference, and would allow parties who have
intentionally destroyed evidence to profit from that destruction," we think there
is a "likelihood that the destroyed evidence would have been of the nature
alleged by the party affected by its destruction." Kronisch, 150 F.3d at 127-28.
Again, the fact that Cromwell had to retreat from the specifics of its initial
explanation for failing to hire Byrnie towards a more general, but less
plausible, claim that Byrnie simply lacked familiarity with the basic
competencies needed for good teaching makes it possible to infer that these
explanations are pretext covering over the real explanation that would be
disclosed by the destroyed documents.
38
40
In the final analysis, while the foregoing additional evidence might not have
been sufficient in itself to defeat summary judgment, it does when coupled with
the allowable inference of spoliation. We therefore conclude that a jury could
reasonably find that the documents Cromwell destroyed-most prominently, the
notes relied upon by Nappi in preparing the account of the hiring process that
formed the basis of the CCHRO Answer and any notes made during the
candidate interviews--would have filled out the picture created by the evidence
Cromwell actually did produce in an unflattering manner by showing
unlawfully discriminatory reasons informed the decision not to hire Byrnie.
II. Byrnie's Other Claims
41
Byrnie also objects to the district court's dismissal of his disparate impact
claim. A plaintiff makes out a prima facie case for a disparate impact claim by
showing "that a facially neutral employment policy or practice has a significant
disparate impact." Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir.
1998). Simply gesturing towards the hiring process as a whole will not satisfy
the requirement that the plaintiff identify a "specific employment practice" that
is the cause of the statistical disparities. Wards Cove Packing Co. v. Atonio,
490 U.S. 642, 656 (1989) (quoting Watson v. Fort Worth Bank & Trust, 487
U.S. 977, 994 (1988) (O'Connor, J.) (plurality)). Byrnie contends that
Cromwell's reliance upon the CCI as a guide for evaluating candidates has
resulted in a hiring process that disproportionately favors younger candidates,
as evidenced by the fact that the average age of teachers hired by Cromwell is
35.6 However, as the district court pointed out, since the CCI was not
developed until 1992, all teachers who received their teaching certificate prior
to 1992 would apparently be adversely affected by unfamiliarity with the CCI's
terminology-thereby impacting an age group extending well beyond the group
protected by the ADEA. See Byrnie, 73 F. Supp.2d at 222. Accordingly, the
district court appropriately dismissed Byrnie's claim of age discrimination via
disparate impact. Similarly, because Byrnie fails to suggest what specific
employment practice accounts for a statistically low number of males being
hired at Cromwell, summary judgment was properly granted to Cromwell on
that claim as well.
CONCLUSION
43
NOTES:
1
Cromwell notes that its "Recommended Procedures for Hiring" charges the
building level administrator with setting the qualifications for any given job. Be
that as it may, the selected qualifications must, according to the same
document, be reviewed by the Board of Education. The reviewed and approved
list of job qualifications for an art teacher requires the successful applicant to
possess a degree in art education.
We know the rankings of the applicants chosen by the screening committee for
interviews because they were included in the CCHRO Answer. Similarly, the
CCHRO Answer contains a tally of the votes each candidate received from the
Search Committee after the first round of interviews.
Byrnie's age discrimination disparate impact claim has been finessed a bit from
the version offered to the district court where he alleged under-representation of
teachers over age 50. Otherwise his age discrimination disparate impact claim
would simply fail because he has not alleged, as he must, that the employment
practice affects the entire protected group. See Criley v. Delta Air Lines, Inc.,
119 F.3d 102, 105 (2d Cir. 1997) (per curiam) (noting that ADEA disparate
impact claim "must allege a disparate impact on the entire protected group, i.e.,
workers aged 40 and over").