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.
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