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Spoliation of evidence is usually thought of in the context of products liability litigation, at least by most employment attorneys. Maybe this is based on movies like “The Verdict” or “A Civil Action,” which romanticize a struggling attorney’s search for the lone piece of evidence (which is not destroyed but just hidden) that will bring down the nefarious multinational corporation. In a recent decision by the 2nd U.S. Circuit Court of Appeals, however, once the court found a duty to retain hiring records existed, it easily concluded the other elements of spoliation had been established. In Byrnie v. Town of Cromwell, Bd. of Educ., (2d Cir. 2001), the appellate court reversed the decision of the U.S. District Court for the District of Connecticut granting summary judgment to Cromwell on the plaintiff’s claim for age discrimination based, in large part, on the finding that “Cromwell’s spoliation of documents related to the hiring process destroyed evidence that would allow a finding of unlawful discrimination.” In the summer of 1995, Robert Byrnie was one of 41 candidates who applied for a part-time art teacher position at Cromwell High School. Byrnie was 64, had bachelor and master degrees in art education and had taught art at the high school level for 21 1/2 years. After a number of prescreenings, Byrnie, along with four female applicants, went through a series of interviews for the position. At the conclusion of the process, Esther Mancarella was hired. Mancarella was 42 years old and possessed a bachelor’s degree in fine arts. She had no experience teaching art at the high school level, although she had four years’ experience teaching art to middle schoolers. Byrnie alleged that he was discriminated against on the basis of his age and sex. SUBJECTIVE CRITERIA Cromwell defended its decision to hire Mancarella over Byrnie to the Connecticut Commission on Human Rights and Opportunities by comparing the interviews of each applicant. Byrnie answered interview questions with “vague, general and unimaginative responses.” By contrast, Mancarella displayed “enthusiasm, poise … [and] her answers were thought-out and coherent.” Cromwell’s attorneys also submitted an answer based on a memorandum prepared by the school’s principal. Following the conclusion of the administrative proceedings, Byrnie brought suit in the District of Connecticut. The District Court granted summary judgment to Cromwell at the conclusion of discovery. Byrnie appealed this decision. The Second Circuit initially noted that “in terms of paper credentials, Byrnie was the better qualified candidate for the job.” However, this finding, by itself, was held to be insufficient to establish the pretext necessary to defeat Cromwell’s motion for summary judgment. The court found that in order for an applicant’s qualifications alone to establish pretext “the plaintiff’s credentials would have to be so superior to the credentials of the person selected for the job that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” The court then noted that Mancarella did not even meet the job qualifications for an art teacher, as her degree was in fine arts, not in the requisite curriculum of art education. The court found that this “irregularity” was “not significant” to call into question the good faith of the hiring process. The court also found that Cromwell’s subjective reliance on the interviews did not, in itself, raise an inference of discrimination. The court stated: “Because we are not a super-personnel 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 is whether such a poor interview performance could make credible Cromwell’s asserted justifications for its hiring decision.” While each of these factors, taken alone, would have been insufficient to demonstrate pretext, the court noted that, in combination, they “further weaken Cromwell’s credibility.” Nevertheless, even in combination, the evidence “might not have been sufficient in itself to defeat summary judgment” without the inference of spoliation present in the case. MISSING DOCUMENTS CRITICAL Byrnie’s spoliation argument focused on two sets of documents. First, Cromwell’s principal had destroyed his investigative notes used to prepare the memorandum that was used in preparing the answer. While the memorandum was subject to the attorney-client privilege, the underlying notes were not. Second, the search committee for the position voted by written ballot in ranking the candidates who would be interviewed. Such documents were destroyed shortly after Mancarella’s hiring. Further, the individual’s notes taken by the interviewers and each committee member’s final rankings of the candidates were also destroyed. Byrnie argued that the destroyed evidence created an adverse evidentiary inference that required that a jury hear and decide on the facts of the case. Byrnie cited the decision of Kronisch v. United States, 150 F.3d 112 (2d Cir. 1998) for the proposition that “an inference of spoliation, in combination with some (not insubstantial) evidence for the plaintiff’s cause of action, can allow the plaintiff to survive summary judgment.” The Byrnie court held that the party seeking an adverse inference must show that (1) the party “having control over the evidence … had an obligation to preserve it at the time it was destroyed,” (2) the documents were destroyed with the requisite state of mind and (3) there is “some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroyed files.” Cromwell argued that the “destruction of personnel records sometime after an employee search [is] concluded [is] a routine process.” As such, Byrnie would be unable to establish any state of mind necessary to prove spoliation. While the court found that it had previously been inconsistent in the culpability necessary to prove spoliation (between an intentional act, bad faith or gross negligence), such a finding was unnecessary in this case, as Cromwell destroyed records in violation of federal regulations implementing Title VII and the Americans with Disability Act. RECORDS RETENTION REQUIRED Specifically, 29 C.F.R. �1602.40, requires that schools must preserve a “personnel or employment record” for two years following the date of any personnel action taken. This regulation also requires that the personnel records of an individual voluntarily terminated and the personnel records relating to any charge or action of discrimination must also be preserved for two years. The court held 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. [W]here, as here, a party has violated any EEOC record-keeping regulation, a violation of that regulation can amount to a breach of duty necessary to justify a spoliation inference in an employment discrimination action. Once the court found that Cromwell had a duty to retain the records, it easily concluded the other elements of spoliation had been established. Specifically, Cromwell did not argue that a destruction of the records was accidental. This was taken as evidence of “intentional destruction sufficient to show a culpable state of mind on Cromwell’s part.” Finally, the court found that the documents destroyed were potentially relevant to Byrnie’s case. In conclusion, the court found that a jury “could reasonably find that the documents Cromwell destroyed — most prominently the notes relied upon … 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.” PRACTICAL ISSUES The Byrnie case raises a number of practical issues for employers and their counsel, along with attorneys for plaintiffs seeking documentary evidence. Initially, it must be noted that the two-year record retention regulation is applicable only to elementary and secondary school systems, districts and individual schools. The regulations require that all other employers maintain documents for a period of one year after an employment action or until one year following the disposition of a charge or employment action. See 29 C.F.R. �1602.14. The regulations define a “personnel or employment record” to include “requests for reasonable accommodation, application forms submitted by applicants and other records having to do with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation.” Additionally, where a charge or action has been filed, a requirement that the employer retain “all personnel records relevant to the charge or action” includes records “relating to the aggrieved person and to all other employees holding positions similar to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position for which the aggrieved person applied and was rejected.” The Byrnie court assumed, without discussion, that the interview notes constituted an “employment record” as defined by the regulations. This was not, however, the finding of the U.S. District Court for the Northern District of Illinois in Rummery v. Illinois Bell Tel. Co., No. 97C6516 (N.D. Ill. 2000). In Rummery, the plaintiff sought an adverse inference from the employer’s destruction of its ranking notes used in a downsizing. The court refused to give such an inference, finding that the regulation does not direct that an employer must retain documentation, such as ranking notes, that record the process that produced a given record; it merely requires that the personnel records relating to the termination must be retained. Defendant complied with the regulation by retaining the Final Ranking Sheet. Standing alone, defendant’s system of destroying individual raters’ notes does not imply that the raters used impermissible considerations such as age in reaching the ultimate rankings. LESSONS OF ‘BYRNIE’ As a practical matter, those employers who have made a legitimate, nondiscriminatory decision will want to retain as much documentation justifying the decision as possible. It becomes the obligation of the employer’s department of human resources to preserve documents associated with employment decisions. Where a legitimate decision has been made, the employer will be best served by having notes of interviews and employee rankings in its possession. Again, practically, managers making employment decisions are often hard-pressed to recall the specific reasons for the decision years after the fact. As such, it is the rare conversation between an employer and its counsel that does not end with counsel reminding: “Be sure to document everything you do.” The retention policy should also include electronic communication, such as e-mail. Although there is no case law regarding the spoliation of electronic communication in the employment context, this is a growing area of discovery, which will likely be addressed by courts in the near future. While it may not be advisable to substitute e-mail communication for conversations in the employment area, an employer making a legitimate decision should retain all records supporting the decision, including those in an electronic format. Finally, the Byrnie decision focused on the destruction of notes and records in the possession of the principal that were used by the principal in preparing a memorandum for Cromwell’s attorneys in preparation of Cromwell’s answer before the Human Rights Commission. This raises the issue that the attorneys apparently relied, in large part, on the client to investigate itself and explain reasons for its decision. While the actual memorandum from the principal to counsel was subject to the attorney-client privilege, the principal’s investigatory notes (which were destroyed) were not privileged. Once litigation begins, it is in the employer’s best interest for any investigation and communication to be subject to the attorney-client privilege. It is in the employer’s best interest, therefore, for counsel, rather than a lay person, to conduct the investigation for litigation purposes. If the employer insists on conducting the investigation itself, it should be careful to refrain from any opinions or conclusions contained in any documentation that is not subject to attorney-client privilege. The author is a partner in the directors and officers litigation group at Post & Schell of Philadelphia. He concentrates his national litigation and consulting practice in the field of employment and employee relations law and has lectured extensively on all aspects of employment law, including Title VII, the Family Medical Leave Act and the Americans with Disabilities Act.

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