                                                      Supreme Court

                                                      No. 2013-146-Appeal.
                                                      (PC 00-4170)


Roderick A. McGarry              :

          v.                     :

Marilyn Pielech et al.           :




   NOTICE: This opinion is subject to formal revision before publication in
   the Rhode Island Reporter. Readers are requested to notify the Opinion
   Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
   Rhode Island 02903, at Tel. 222-3258 of any typographical or other
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   published.
                                                                 Supreme Court

                                                                 No. 2013-146-Appeal.
                                                                 (PC 00-4170)


           Roderick A. McGarry                 :

                     v.                        :

           Marilyn Pielech et al.              :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Flaherty, for the Court. The plaintiff, Roderick A. McGarry, appeals from the

denial of his motion for a new trial after a jury verdict entered in favor of the defendant, Marilyn

Pielech, in her capacity as Treasurer and Finance Director of the Town of Cumberland (town), in

a suit alleging age discrimination in hiring. 1 This case came before the Supreme Court for oral

argument on October 29, 2014, pursuant to an order directing the parties to appear and show

cause why the issues raised in this appeal should not be summarily decided. After hearing the

arguments and examining the memoranda filed by the parties, we are of the opinion that cause

has not been shown and we shall proceed to decide the appeal at this time, without further

briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.



1
    Ms. Pielech is now the sole defendant because the named individual members of the
Cumberland School Committee were granted a judgment as a matter of law at the close of
plaintiff’s evidence, pursuant to Rule 50 of the Superior Court Rules of Civil Procedure. That
ruling was not appealed to this Court.


                                               -1-
                                                  I

                                         Facts and Travel

       In this appeal, we address the issues arising from the second trial of plaintiff’s claim of

age discrimination arising from the failure to hire him for one of two positions as an English

teacher at Cumberland Middle School. 2 The first time these parties were before this Court, we

affirmed the grant of a new trial for defendant, pursuant to Rule 59 of the Superior Court Rules

of Civil Procedure, on the discrimination claim. 3 On remand to the Superior Court, plaintiff

again litigated the claim of discrimination to a jury, but this time a verdict was returned in favor

of defendant. After the verdict, the trial justice denied plaintiff’s motion for a new trial. The

plaintiff now appeals from the adverse jury verdict.

       The events that give rise to the facts underlying plaintiff’s one remaining claim took

place more than fifteen years ago. 4 McGarry v. Pielech, 47 A.3d 271, 275-79 (R.I. 2012)

(McGarry I). McGarry had been employed as a substitute teacher with the Cumberland school

system during the 1997-1998 school year. In July 1998, plaintiff applied for two openings at

Cumberland Middle School, both in the English department, for the 1998-1999 school year. The

plaintiff was interviewed for both positions, but ultimately the town appointed other candidates.

The various candidates, including plaintiff, were interviewed by a committee that consisted of

2
  The record notes the school is now called Joseph L. McCourt Middle School.
3
  For a complete recitation of the facts and evidence produced at the first trial, see McGarry v.
Pielech, 47 A.3d 271, 275-79 (R.I. 2012) (McGarry I).
4
   At the first trial there had been two claims, one of discrimination and one of retaliation.
McGarry I, 47 A.3d at 275. Originally, plaintiff received a favorable verdict on both claims.
However, both verdicts were vacated when the trial justice granted Rule 50 judgments to the
defendant, and in the alternative granted motions for a new trial pursuant to Rule 59 of the
Superior Court Rules of Civil Procedure. On his first appeal, plaintiff did not contest the
judgment, or the alternative grant of a new trial, as to the retaliation claim; therefore, this Court’s
decision addressed only the discrimination claim. McGarry I, 47 A.3d at 279 n.8. In that
opinion, we vacated the Rule 50 judgment on the discrimination claim, but affirmed the Rule 59
grant of a new trial to defendant on the discrimination claim only. McGarry I, 47 A.3d at 286.


                                                 -2-
Joyce Hindle-Koutsogiane (Koutsogiane), the principal of the Middle School, and two teachers

from the English department. At the interview, members of the committee took notes, rated each

of the candidates’ responses to a series of questions, and made other general observations that

would be helpful in making the hiring decision. In August 1998, after he was not hired for either

position, McGarry asked Ms. Koutsogiane for permission to review his personnel file. In his

review, plaintiff discovered that there were no interview sheets from the July 1998 interview.

No explanation has ever been offered by defendant as to why the interview sheets were not

available.

       After reviewing the file, plaintiff concluded that age discrimination was the explanation

for the town’s failure to hire him for one of the positions. At the time of his application, plaintiff

was fifty-six years of age; the two candidates who were selected to fill the positions were less

than forty years of age. The plaintiff had earned a degree from Providence College in 1968 and a

master’s degree in business from Bryant University in 1980. 5 Further, plaintiff was certified to

teach a number of academic subjects, including English, social studies, and business. McGarry

had taught in the town’s school system previously, during the 1969-1970 school year, but he

spent the next twenty-six years working in a variety of managerial positions in the trucking

industry.    Years later, plaintiff decided to reactivate his teaching certificate, and he began

working again in the town as a substitute teacher in the spring of 1997. The following year,

1998, plaintiff began the application process during which he alleges the discrimination

occurred.

       In December 1998, McGarry took his claims to the Rhode Island Commission for Human

Rights (commission), alleging that he was not hired for either of the two positions as a result of

5
   The first successful candidate had a college degree with specializations in writing and
journalism. The second successful candidate had a master’s degree in teaching.


                                                -3-
age discrimination. On June 27, 2000, the commission gave McGarry a notice of a right to sue,

pursuant to G.L. 1956 § 28-5-24.1(a), allowing him to file a complaint in Superior Court. On

August 8, 2000, plaintiff filed suit against the town and the individual members of the school

committee. The suit alleged two pertinent claims: age discrimination in violation of the Rhode

Island Civil Rights Act, G.L. 1956 § 42-112-1, and the Rhode Island Fair Employment Practices

Act, G.L. 1956 § chapter 5 of title 28, and retaliation based on the same. A trial commenced on

the claims in February of 2010 and it featured the testimony of plaintiff, Ms. Koutsogiane, and

several other officials in the Cumberland school system. When plaintiff testified, he admitted he

had no direct evidence that he was a victim of age discrimination. The missing interview notes

were addressed in the testimony of Ms. Koutsogiane, Mr. Joseph M. Nasif, Jr., the

superintendent of schools from 1996 to 2005, and Mr. Roger Parent, a former principal who was

familiar with the interview process. However, no witness could explain why the interview sheets

were missing from plaintiff’s file and accordingly, the judge gave the jury an instruction on

spoliation of the evidence. 6 On February 24, 2010, a verdict was returned for plaintiff on both

counts; the jury awarded $329,814.18 in damages. However, upon motion by defendant, the

verdicts were vacated and a judgment as a matter of law, in accordance with Rule 50 of the

Superior Court Rules of Civil Procedure, was entered for defendant on both counts.

Alternatively, the trial justice granted defendant’s motions for a new trial, premised on Rule 59,

on both claims.

       McGarry appealed the trial justice’s ruling to this Court, but in his appeal, with respect to

the retaliation claim, he failed to address either the Rule 50 judgment entered for defendant or

6
  The judge found that it was a regular practice to draft and use these interview sheets as part of
the hiring process and that, at the time of trial, the school department could not locate these
documents. The trial justice told the jury that they “may infer that the missing evidence would
have been unfavorable to the position of the defendant.”


                                               -4-
the Rule 59 grant of a new trial. This Court vacated the trial justice’s Rule 50 finding on the

discrimination claim that was before it, but we affirmed the Rule 59 grant of a new trial on that

one claim. On remand, plaintiff had a second jury trial before a different justice of the Superior

Court. That trial commenced with pretrial motions on December 6, 2012.

       On that day, several issues were addressed. The first was the retaliation claim, which

plaintiff’s attorney conceded was no longer viable, stating on the record “[w]e never challenged

that in the Supreme Court, so there’s not much more I can say about whether or not the 1999

retaliation claim survives.” The trial justice agreed, ruling that that claim “will not be going to

the jury here.” Second, defendant moved to exclude certain testimony about a July 26, 1999,

letter the town’s counsel penned in opposition to plaintiff’s original filing with the commission

in 1998. The trial justice allowed plaintiff to testify at the hearing on the motion in limine before

she ruled on the letter’s admissibility. In his testimony, plaintiff disputed certain allegations that

were made in the letter, specifically that he had made a verbal outburst at a school committee

meeting after he learned that he would not be appointed to a business teaching position in the

1997-1998 academic year. The letter further contained an erroneous statement that plaintiff was

not certified to teach English at the time of the 1998 decision on hiring an English teacher. In

ruling on the motion, the trial justice deemed the letter to be inadmissible, except for the limited

purpose of showing the false statement about plaintiff’s teaching certificate. The judge said that

she believed the remaining contested portions, which concerned plaintiff’s decreasing use as a

substitute teacher and the 1997 teaching position, were not in issue, and were not sufficiently

probative on the age-discrimination claim before the jury. The trial justice reasoned that any

possible relevance that the outburst at the school committee meeting might have was




                                                -5-
substantially outweighed by the danger of confusing the issues and misleading the jury, and

therefore she excluded the majority of the letter.

       On December 10, 2012, the trial began. On the second day, Ms. Koutsogiane testified

about the hiring process and the use of the interview notes, which she referred to as rating sheets.

She explained that the rating sheets were used to foster discussion between the interviewers after

each interview.    She further testified that at the conclusion of the interview process, the

committee selected its top three candidates and then “sen[t] those three with our

recommendations up to the Superintendent’s Office.” During trial, plaintiff indicated that he

would seek a jury instruction that, because defendant failed to preserve the records from the 1998

interview, there had been a violation of a federal regulation, 29 C.F.R. § 1602.14 (2012), 7 as well

as G.L. 1956 § 28-6.4-1. 8       The trial justice addressed the requested instructions before

Superintendent Nasif testified because she presumed her ruling would impact plaintiff’s

questioning of him. The trial justice refused to offer a specific instruction to the jury, as plaintiff

had requested, because she found the two laws inapplicable to plaintiff’s case. Citing the

7
  The regulation is published by the Equal Employment Opportunity Commission (EEOC) under
the powers delegated to it by federal labor laws. See 29 C.F.R. § 1602.1 (2012) (listing the
purpose and scope of the record-keeping regulations). The regulation states in relevant part:

        “Where a charge of discrimination has been filed * * * against an employer under
        title VII, the [Americans with Disabilities Act], or [Genetic Information
        Nondiscrimination Act], the respondent employer shall preserve all personnel
        records relevant to the charge or action until final disposition of the charge or the
        action.” Id. § 1602.14 at 176.
8
   If given proper notice, employers are required by this statute to allow their employees to
inspect their personnel files, except:

               “This section does not apply to records of an employee relating to the
       investigation of a possible criminal offense or records prepared for use in any
       civil, criminal, or grievance proceedings, any letter of reference,
       recommendations, managerial records kept or used only by the employer,
       confidential reports from previous employers, and managerial planning records.”
       G.L. 1956 § 28-6.4-1(a)(4).


                                                 -6-
language of the regulation, the trial justice ruled that because plaintiff’s claim was not “filed

against an employer under [T]itle VII or the [Americans with Disabilities Act],” 29 C.F.R. §

1602.14 did not apply because it was meant to apply to only those “particular acts.” 9 Further, the

Rhode Island statute, § 28-6.4-1, did not apply because the interview notes were similar to

“letters of reference and recommendations,” which are exempt from the requirement concerning

the inspection of records. However, when she instructed the jury, the trial justice did include the

standard spoliation instruction with regard to the missing interview notes.

         On December 13, 2012, the jury returned a verdict for defendant. The plaintiff filed a

motion for a new trial, which the trial justice denied. The plaintiff made a timely appeal to this

Court.

                                                II

                                      Standard of Review

         This Court has held that “the admissibility of evidence is a decision within the sound

discretion of the trial justice.” State v. Dubois, 36 A.3d 191, 199 (R.I. 2012) (citing State v.

Merida, 960 A.2d 228, 237 (R.I. 2008)). Thus, we will affirm the hearing justice’s decision

unless he or she has not properly exercised that discretion. Id. When considering proposed jury

instructions, the hearing justice has a duty to ensure that the instruction given to the jury

“adequately cover[s] the law” the jury must consider to decide the case. State v. Long, 61 A.3d

439, 445 (R.I. 2013) (quoting State v. Cardona, 969 A.2d 667, 674 (R.I. 2009)). We review such

instructions, and objections thereto, to ensure that “the jury charge ‘sufficiently addresses the



9
   The term “Title VII,” referenced by the trial justice comes from the language of the regulation
itself and refers to the equal employment opportunities provisions of Title VII of the Civil Rights
Act of 1964, codified at 42 U.S.C. §§ 2000e through 2000e-17. See 29 C.F.R. § 1602.01
(defining scope of the regulation plaintiff cites). Title VII prohibits discrimination in
employment on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2.


                                               -7-
requested instructions and correctly states the applicable law.’” Id. (quoting State v. Sivo, 925

A.2d 901, 913 (R.I. 2007)). Mixed questions of law and fact are reviewed with a similar

deference to that given to findings of fact; they will not be disturbed absent a showing that the

trial justice overlooked or misconceived material evidence. Casco Indemnity Co. v. O’Connor,

755 A.2d 779, 782 (R.I. 2000) (citing Wickes Asset Management, Inc. v. Dupuis, 679 A.2d 314,

317 (R.I. 1996)).

       Further, this Court need only address issues presented to it and we expect if not “demand

that the briefs before us will contain all the arguments that the parties wish us to consider * * * .”

Estate of Meller v. Adolf Meller Co., 554 A.2d 648, 654 (R.I. 1989). Article I, Rule 16(a) of the

Supreme Court Rules of Appellate Procedure explicitly states that “[e]rrors not claimed,

questions not raised and points not made ordinarily will be treated as waived * * * .” Even when

a party has properly preserved its alleged error of law in the lower court, a failure to raise and

develop it in its briefs constitutes a waiver of that issue on appeal and in proceedings on remand.

See Bowen Court Associates v. Ernst & Young, LLP, 818 A.2d 721, 728 (R.I. 2003) (citing Roe

v. Gelineau, 794 A.2d 476, 482 n.6 (R.I. 2002)); see also David A. Wollin, Rhode Island

Appellate Procedure § 16:6 (West 2004) (“[t]he waiver is effective for purposes of the appeal at

issue and throughout any future proceedings after the case is remanded”).

                                                 III

                                             Discussion

       On appeal, plaintiff advances three arguments.          First, plaintiff argues that the trial

justice’s decision to disallow questioning on portions of the July 26, 1999, letter from

defendant’s counsel to the commission was error. Second, he urges that the trial justice’s refusal

to impart a jury instruction on a federal regulation and a state statute misconstrued the law.




                                                -8-
Lastly, plaintiff contends that the judge erred in not allowing him to present evidence of his

retaliation claim. We conclude that these arguments lack merit and we will address them in turn.

                                 A. Preclusion of the 1999 Letter

       Questions on admission of evidence are rightly settled by the trial justice. Rule 104(a) of

the Rhode Island Rules of Evidence (“the admissibility of evidence shall be determined by the

court”). When exercising this authority, the trial justice has broad discretion and will not be

determined to be in error if he or she properly exercises that discretion. See Dubois, 36 A.3d at

199. A trial justice may properly exclude evidence, although relevant on some point, if its

probative value is substantially outweighed by the risk of confusing the issues before the jury.

See Rule 403 of the Rhode Island Rules of Evidence (“evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury”); Accetta v. Provencal, 962 A.2d 56, 60 (R.I. 2009) (reciting the process for

admission of evidence). The plaintiff claims that there was error occasioned by the failure to

admit the 1999 letter from defendant’s counsel to the commission as well as by the trial justice’s

refusal to allow him to question witnesses about the letter. The trial justice did allow plaintiff to

address the factual inaccuracy in the letter pertaining to his teaching certificate, and plaintiff did

do so at trial. What the trial justice did not allow were the statements in the letter about the

school department’s declining use of plaintiff as a substitute teacher, the alleged outburst at the

school committee meeting, and a 1997 business teacher position that was not in issue in the

discrimination claim.

       The plaintiff argued that the letter was relevant because it evidenced the shifting

rationales that defendant had for not hiring him for either of the two English teacher positions,

thereby demonstrating that defendant’s reasons were a mere pretext for age discrimination.




                                                -9-
However, the trial justice decided that any probative value those portions of the letter would have

for this purpose was outweighed by the risk of confusion of the issues and thus it had the

potential to mislead the jury. It is significant that the jury in plaintiff’s second trial was deciding

only the discrimination claim for the 1998 teaching vacancies. After a review of the record, it is

our opinion that the trial justice was within the bounds of her discretion when she excluded the

letter from the jury’s consideration at plaintiff’s trial, and we will not disturb her decision.

                   B. Jury Instruction on 29 C.F.R. § 1602.14 and § 28-6.4-1

       A trial justice has the duty to ensure that the charge she gives to the jury appropriately

states the applicable law in the case before it. Long, 61 A.3d at 445. Here, McGarry asked the

trial justice to instruct the jury on two pieces of legislation, both of which the judge found to be

inapplicable. The first was 29 C.F.R. § 1602.14, a federal regulation promulgated to require

employers to adhere to the record-keeping requirements of Title VII, the Americans with

Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA). See 29

C.F.R. § 1602.1 (defining the purpose and scope of the record-keeping regulations). The second

was § 28-6.4-1, which pertains to the records an employer must allow an employee to inspect.

See chapter 6.4 of title 28.

       The trial justice determined that the facts of the case before the jury did not warrant an

instruction on either enactment because neither was germane to the claim in dispute. The trial

justice noted that the federal regulation and the section in which it was found “was promulgated

to aid in the enforcement of particular acts.” Those legislative enactments, she noted, were

expressed in 29 C.F.R. § 1602.14, as Title VII, the ADA, and GINA, and plaintiff’s claim did not

involve any of them. The plaintiff’s suit advanced state law claims only.




                                                 - 10 -
       The trial justice determined that § 28-6.4-1 did not apply because the interview notes in

question were not the types of documents that an employee has a statutory right to inspect.

Rather, she found that they were akin to “letters of reference and recommendations,” which the

statute exempts. Ms. Koutsogiane testified that the purpose of the interview rating sheets was to

assist the committee in making its recommendation to the superintendent, not to make the

ultimate decision of whom to hire. The trial justice concluded that the interview rating sheets

were “not a record having to do with hiring. These are notations.” The trial justice allowed the

jury to consider the fact that the rating sheets were missing, by way of a spoliation instruction,

but she declined to instruct on the Rhode Island statute, reasoning that it did not apply to this

type of document. We see no error in the trial justice’s determinations.

                               C. Preclusion of Retaliation Claim

       This Court strongly adheres to its “waive-or-raise” rule that requires parties to raise

allegations of error in the lower court and argue the issue in their briefs on appeal. Rule 16(a)

(“questions not raised and points not made ordinarily will be treated as waived”); Bowen Court

Associates, 818 A.2d at 728. The plaintiff’s first trial included a claim for retaliation, in addition

to the claim for age discrimination. At the conclusion of the first trial, the trial justice wrote a

decision addressing both claims, and he granted the defendant a judgment as a matter of law

explicitly on “[the] [p]laintiff’s age discrimination and retaliation claims.” In the alternative, the

trial justice granted the defendant’s motions for a new trial, also on both claims. In the plaintiff’s

first appeal to this Court, he did not raise or argue either the Rule 50 judgment granted to the

defendant or the Rule 59 grant of a new trial with respect to his claim of retaliation. McGarry I,

47 A.3d at 276 n.4 (“[o]n appeal, plaintiff did not pursue his retaliation claim”). Considering the

nature of the first trial justice’s plainly unambiguous conclusion, it is our opinion that the




                                                - 11 -
plaintiff should have known that he would be required to pursue his retaliation claim on appeal

or it would be waived. See Estate of Meller, 554 A.2d at 654 (this Court expects that “the briefs

before us will contain all the arguments that the parties wish us to consider”). Indeed, at a

pretrial hearing in advance of the plaintiff’s second trial, his counsel conceded, “[w]e never

challenged that in the Supreme Court.” The second trial justice, relying on this Court’s mandate,

correctly prohibited any evidence on the retaliation claim because it would unnecessarily confuse

the issues before the jury. See Rule 403. We agree, and this Court is satisfied that the justice’s

ruling complied with our mandate in McGarry I. 47 A.3d at 286.

                                               IV

                                          Conclusion

       For the reasons stated in this opinion, we affirm the judgment of the Superior Court and

remand the record thereto.




                                              - 12 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Roderick A. McGarry v. Marilyn Pielech et al.

CASE NO:              No. 2013-146-M.P.
                      (PC 00-4170)

COURT:                Supreme Court

DATE OPINION FILED: January 14, 2015

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Kristin E. Rodgers

ATTORNEYS ON APPEAL:

                      For Plaintiff: William T. Murphy, Esq.

                      For Defendant: Marc DeSisto, Esq.
