Destruction of records that may be relevant in pending litigation

Destruction of records that may be relevant in pending litigation

Byrnie v Town of Cromwell Board of Education, CA2, 243 F.3d 93

EEOC regulation implementing Title VII [42 USC 2000e-8(c)] requires “every employer ... subject to this subchapter” to “(1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, [and] (2) preserve such records for [two years].” As the Byrnie decision demonstrates, an employer's failure to retain these records for the minimum period required may become a critical element in the course of litigation.

Judge Rosemary S. Pooler said that “where, as here, a party has violated an EEOC record-retention regulation, a violation of that regulation can amount to a breach of duty necessary to justify a spoliation inference in an employment discrimination action.” *

64-year-old Robert F. Byrnie claimed that the district rejected him for part-time employment as an art teacher because of his age and gender. He sued, alleging violations of Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and Title IX of the 1972 Education Amendments.

Although the district court dismissed his claims, the Circuit Court of Appeals reversed part of the lower courts ruling as inappropriate under the circumstances.

According to the court, Byrnie “easily” established a prima facie case of age discrimination. Judge Pooler commenting that while the job was given to an applicant who was 42 years of age -- a person in the “protected class” set out in the Age Discrimination in Employment Act, “the fact that the replacement is substantially younger than [Byrnie] is a more valuable indicator of age discrimination than whether or not the replacement was over 40.”

Since “the [district's] justification for not hiring Byrnie, on its face, raises credibility problems,” -- he had been a substitute at Cromwell for five years and was often asked to take over classes for extended periods. This, coupled, with the destruction of records required to be retained by EEOC regulations, indicates that the district court was incorrect in granting the district's motion for summary judgment dismissing Byrnie's age discrimination complaint.

The decisions states that “[t]he 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 [the successful candidate] to survive” initial screenings of applications filed by interested candidates for the position by the district, “let alone be selected as the most deserving of an interview.” In addition, courts have recognized that an employer's disregard or misjudgment of a plaintiff's job qualifications may undermine the credibility of an employer's stated justification for an employment decision.

Spoliation, said the court, “can support an inference that the evidence would have been unfavorable to the party responsible for its destruction” especially when federal regulations required the employment-related documents destroyed be retained for two years.

The reasons underlying the adoption of such an inference:

1. It serves to deter parties from destroying evidence;

2. It places the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and

3. It restores the party harmed by the loss of evidence potentially helpful to its case to where the party would have been in the absence of spoliation.

The ruling also commented that the district did not claim that the records had been accidentally destroyed -- they were disposed in compliance with its policy of destroying such records soon after the hiring process was completed. This, said the court, constituted evidence “of intentional destruction sufficient to show a culpable state of mind on Cromwell's part.”

The lesson here: retain all records for the minimum period required by law, and longer if litigation is pending.

* Spoliation is the destruction or significant alteration of evidence. Courts usually view such destruction as evidence that the records that are destroyed contain material that would not be helpful to the party responsible for the spoliation.

Dissatisfaction with work schedules does not equal lack-of-work

Dissatisfaction with work schedules does not equal lack-of-work

Blankenship v Comm. of Labor, 282 AD2d 861

Sometimes a public employer finds it necessary to hire a substitute to cover for an employee who is absent due to illness. This was the case when a school district hired Linda J. Blankenship as a full-time [eight hours per day] per diem substitute cleaner to cover for a full-time employee who was on disability leave.

When the employee returned from disability leave, Blankenship's workday was adjusted in accordance with the employer's need to cover positions because of vacations or other absences of permanent employees. Essentially Blankenship was scheduled to work full-time during the summer due to vacation schedules. When the school year resumed her hours were reduced to four hours a day.

Dissatisfied with the change in her work schedule, Blankenship left the district and filed a claim for unemployment insurance benefits. She indicated that “lack of work” was the reason for her leaving the district's employ. The Unemployment Insurance Appeals Board rejected Blakenship's claim for unemployment insurance benefits on the ground that she voluntarily left her employment without good cause.

The Appellate Division sustained the Board's finding that Blankenship's “dissatisfaction with her reduced hours in accordance with the needs of the school district did not constitute good cause for leaving her employment” as supported by substantial evidence.

In addition, the court approved the Board's ordering the “recoverable overpayment of benefits.”

Declarations of an agent not always deemed an admission of the employer in the course of litigation

Declarations of an agent not always deemed an admission of the employer in the course of litigation

Simpson v NYC Transit Authority, 1st Dept., 283 AD2d 419

Suppose a former employee is called to testify against his or her former employer as a witness in an action brought by another individual. Is such testimony to be considered an “admission” by the former employee's employer? This was one of the issues in the Simpson case.

A jury awarded Simpson $250,000 after finding the NYC Transit Authority guilty of employment discrimination in violation of New York State's Executive Law Section 296 and Administrative Code of the City of New York Section 8-502. The Authority appealed.

It seems that the Transit Authority's former Director of Equal Employment Opportunity had testified on behalf of Simpson and, presumably, against the agency. Was the former Director's testimony to be deemed an admission to the extent that it was adverse to the Authority's interests?

Noting that the such testimony contained hearsay, Appellate Divisions said that in such situations a declaration made by an agent [here the former Director of Equal Employment Opportunity] without authority to speak for the principal [i.e., the Authority], even where the agent was authorized to act in the matter to which his declaration relates, does not fall within the “speaking agent” exception to the rule against hearsay and is not an admission that can be received in evidence against the principal.

Concluding that the testimony by the Authority's former Director was improperly admitted as admissions against the Authority, the Appellate Division ruled that this constituted reversible error and remanded the matter to Supreme Court for a new trial.

Applying the terms of disciplinary settlement agreement

Applying the terms of disciplinary settlement agreement

Perretti v NYC Transit Auth., 283 AD2d 737

The New York City Transit Authority challenged a decision by the Unemployment Insurance Appeals Board granting one of its employees, Frank P. Perretti, unemployment insurance benefits.

Perretti was suspended from his employment as a sheet metal mechanic following a “physical altercation with a fellow employee.”

Perretti filed a grievance and subsequently entered into a stipulation providing that Perretti would be suspension without pay for 30 days and would enroll in and cooperate with an employee assistance program.

When Perretti attempted to return to work at the end of his 30-day suspension without pay, the Authority sent him for a psychiatric evaluation.

Despite testing negative for alcohol or substance abuse, the Authority insisted that Perretti complete the employee assistance program without pay before he was permitted to return to work.

The Unemployment Insurance Appeal Board ruled that Perretti was disqualified from receiving unemployment insurance benefits during his 30-day suspension, but entitled to benefits during the time that he was enrolled in the alcohol treatment program. The Appellate Division agreed, finding no reason to disturb the Board's determination.

The court said that the record indicates that Perretti had signed the stipulation with the understanding that he could return to work immediately upon the conclusion of his suspension period. His attempts to return to work were frustrated by the employer's additional requirements that he undergo a psychiatric evaluation and alcohol counseling.

The Appellate Division pointed out that to the extent that the Authority asserts that Perretti was not ready, willing and able to work [see Labor Law Section 591(2)], “we note that any obstacle in this regard was caused by the [Authority's insistence that [Perretti] attend an alcohol counseling program despite his negative history of any alcohol abuse.”

The court's view disciplinary settlements in much the same fashion -- holding the employer to observe the specific terms agreed upon by the parties.

The classic example: Taylor v Cass, 505 NYS2d 929. Here a disciplinary settlement provided that Taylor would be subject to termination without any hearing if, in the opinion of his superior, his job performance was adversely affected by Taylor's consumption of alcohol. Taylor was subsequently terminated for sleeping on the job.

Although the employer claimed that the termination without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed Taylor's reinstatement to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not authorized by the settlement agreement. The court ruled that Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the settlement agreement: the performance of his duties was unsatisfactory because of his consumption of alcohol.

Disciplinary action follows teacher’s using inappropriate language in the classroom

Disciplinary action follows teacher’s using inappropriate language in the classroom

Bernstein v Norwhich City School District, 282 A.D.2d 70, motion for leave to appeal denied 96 N.Y.2d 937

In May 1998 Richard C. Bernstein, a tenured English teacher in the Norwich High School was charged with conduct unbecoming a teacher, insubordination, neglect of duty and incompetence for using what the district regarded as inappropriate verbiage in the course of teaching a lesson.

Bernstein's performance evaluation, which was introduced at the disciplinary hearing, indicated that High School Principal James Walters believed that Bernstein gave undue emphasis upon sexual imagery in his selected readings, classroom discussions and writing assignments.

Also noted in the evaluation was the fact that students had complained that Bernstein had a “tendency to compare them to characters from the books that they were reading in class whose sexual proclivities he had discussed.”

The evaluation concluded with a directive to “de-emphasize sexual aspects of the literary works that you deal with in your classroom.” It also stated that “[t]his concern has been voiced loud and clear during the course of the 1994-95 school year by parents and students. I will anticipate a different focus in your discussions during the 1995-96 school year.”

In the course of the May 1998 disciplinary action, students from Bernstein's eleventh grade English honors class testified that Bernstein used the words “penis” and “clitoris” when explaining a literary technique.

During a meeting with Principal James Walters Bernstein conceded he used these words in a discussion when introducing the topic of “phallogocentrism”, a theory of feminist literary criticism involving phallic symbolism, as a background to understanding and interpreting literature.

The Hearing Officer concluded that while the evidence and testimony did not support a finding of guilt on each of the specifications charged, a preponderance of the credible evidence did support the charge of conduct unbecoming a teacher and insubordination.

As to charges of insubordination, the Hearing Officer noted that Bernstein had been warned both orally and in writing by Walters that he should de-emphasize the sexual aspects of literary works and be cautious about classroom discussions that have sexual overtones.

The hearing officer indicated that while Bernstein's use these two words in a vacuum may well not have intended to lead to a discussion of sexual matters, he concluded that their use by Bernstein constituted poor judgment in light of his employment history. The hearing officer imposed a penalty of $3,000 fine and a letter of reprimand.

Bernstein appealed. A Supreme Court justice confirmed the hearing officer's determination as to guilt but found that it was error to impose both a letter of reprimand and a fine. A rehearing limited to the issue of penalty was ordered.

Bernstein then appealed to the Appellate Division solely on substantive findings of the hearing officer related to the disciplinary charges sustained by the lower court.

The Appellate Division said that “the cumulative testimony” given at the disciplinary hearing provided the requisite quantum of evidence to support the charges sustained by the hearing officers. Further, said the court, the fact that Bernstein was found guilty of fewer than all of the specifications alleged “is of no merit in challenging the determination rendered.”

Bernstein also argued that “his academic freedom must be protected because the information that he was presenting has material educational value.” The Appellate Division was not persuaded by this argument.

The court noted that in O'Connor v Sobol, 173 AD2d 74 [appeal dismissed, 80 NY2d 897], it had concluded that notwithstanding teachers' rights to choose methodology under principles of academic freedom, school officials must be permitted “to establish and apply their curriculum in such a way as to transmit community values” providing their discretion is “exercised in a manner that comports with the transcendent imperatives of the First Amendment.”

Noting that Bernstein had been previously warned of Walters' concern regarding the sexual content and age appropriateness of the material that he was presenting and was also aware that his prior choice of materials offended community values, the Appellate Division said that “we can find no basis upon which we would disturb the determination rendered.”