## Facts

- Roderick A. McGarry, age 56, previously worked as a substitute teacher in the Cumberland, Rhode Island, school system.
- After obtaining English-teaching certification, he applied in 1998 for two English teaching positions at a middle school, interviewed, and was not selected.
- In December 1998, McGarry filed an administrative charge alleging age discrimination in the failure to hire.
- In spring 1999, he applied and interviewed for another middle-school position (English/Social Studies) and again was not hired.
- The principal testified the hired candidates were more qualified and that the district hired many candidates over age 40; she also claimed McGarry ranked fourth for one position.
- Interview notes that allegedly documented rankings were lost without explanation.
- The trial court gave a spoliation instruction allowing the jury to draw an adverse inference from the missing notes.
- A jury found for McGarry on age discrimination and retaliation; the trial justice later entered judgment as a matter of law (Rule 50) for the school department and, alternatively, granted a new trial.

## Issues

1. Whether the trial justice improperly granted judgment as a matter of law on the age-discrimination claim by weighing evidence and credibility rather than viewing the evidence in the nonmovant’s favor.
2. Whether an adverse inference from spoliation, alone or in combination with other circumstantial proof, can support sending an employment discrimination claim to the jury.
3. Whether the trial justice abused discretion in granting a new trial on age discrimination as against the fair weight of the evidence.
4. Whether the retaliation claim was supported by sufficient evidence of causation to withstand Rule 50 and/or to sustain the verdict.

## Decision

- The court vacated the Rule 50 judgment on the age-discrimination claim, holding the evidence, viewed most favorably to McGarry, permitted reasonable jurors to find discrimination.
- The court affirmed the alternative order granting a new trial on age discrimination, deferring to the trial justice’s conclusion that the verdict was against the fair preponderance of the evidence and overly driven by the spoliation inference.
- The court affirmed judgment for the school department on retaliation, concluding the evidence was insufficient to support a causal link between protected activity and any adverse action.
- The case was remanded for a new trial limited to the age-discrimination claim.

## Legal Principles

- On a Rule 50 motion, the court must view evidence in the light most favorable to the nonmoving party and may not weigh evidence or assess witness credibility; if reasonable minds could differ, the motion must be denied.
- Circumstantial employment-discrimination claims may proceed under a burden-shifting framework: prima facie case, employer’s legitimate nondiscriminatory reason, and plaintiff’s proof of pretext.
- Spoliation permits (but does not compel) an adverse inference that missing evidence would have been unfavorable to the party responsible for its loss; the inference is evidentiary support, not an automatic substitute for proof.
- On a motion for new trial, the trial justice may weigh evidence as a “thirteenth juror” and may set aside a verdict that fails to do substantial justice; appellate review is deferential and focuses on whether material evidence was overlooked or misconceived.
- Retaliation requires evidence supporting causation between protected activity and adverse action; timing and surrounding circumstances must reasonably support the inference.

## Conclusion

The court held that the age-discrimination evidence, including an adverse inference from lost interview notes, was sufficient to reach a jury, so Rule 50 judgment was improper; however, it upheld a new trial on that claim as within the trial justice’s discretion, and it affirmed judgment for the defendant on retaliation for lack of sufficient proof of causation.


McGarry v. Pielech, 47 A.3d 271 (R.I. 2012)