Plaintiff-Appellant Rene Wood appeals from a judgment of the District Court (Feldman, Magistrate Judge) granting Defendant-Appellee's motion for summary judgment and dismissing Wood's claim against her former employer, Defendant-Appellee Pittsford Central School District, for employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., as well as for violations of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.; the Civil Rights Act of 1964, as amended, 42 U.S.C. § 1983; the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.; the Education Amendments of 1972, Title IX, 20 U.S.C. § 1681 et seq.; and the First Amendment to the U.S. Constitution. We assume the parties' familiarity with the facts, procedural history, and scope of issues presented on appeal.

We review the District Court's grant of summary judgment de novo, construing all facts and the inferences to be drawn therefrom in the light most favorable to the Plaintiff-Appellant. Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). We exercise caution when granting summary judgment if motive is genuinely in issue. McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997). The three-step burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), structures our review.

For the reasons set forth in Magistrate Judge Feldman's decision and order dated February 26, 2007, we affirm the dismissal of Wood's claims of discrimination. We agree with the District Court that Wood failed to raise even an inference of discrimination as required by McDonnell Douglas.

With respect to Wood's claim of retaliatory discharge under Title VII, however, we vacate and remand for further proceedings. The District Court found that the first two steps of the McDonnell Douglas inquiry were met, i.e., that Plaintiff-Appellant had made out a prima facie case and that the Defendant-Appellee had articulated a legitimate, non-retaliatory reason for the adverse employment decision. We also find, however, that there was sufficient evidence to create a genuine issue of material fact as to whether the Defendant-Appellee's reason for Plaintiff-Appellant's termination was pretextual.

The Defendant-Appellee's only proffered reason for refusing to renew Wood's employment was that an Assistant to the HR Director (hereinafter, "Assistant") had calculated that special education student enrollment would decrease, resulting in fewer sections and a need for one fewer part-time position. Defendant-Appellee's brief on appeal asserts that the change in staffing was "driven" merely by student needs. Respondent's Br. at 7; see also id. at 40 (stating that the decision to terminate Plaintiff-Appellant was based solely on student enrollment numbers). Construed in the light most favorable to Plaintiff-Appellant, see Gallo, 22 F.3d at 1223, however, the record contradicts these assertions and indicates that the Assistant's calculations merely created a floor on the number of teachers who had to be hired. The Principal and HR Director made final decisions about the exact number, based largely on the Assistant's raw data but also based on their expectations of the number of students who would enroll over the summer and based on assessments of the number of students who would need more intensive co-taught sections. See J.A. at 1504, 1510-13, 2093-94.

We find, for the following reasons, that the Plaintiff-Appellant has adduced evidence sufficient to raise a factual issue as to whether the reason proffered for her termination was pretextual.

First, although the District asserts that its calculations in May, 2002, indicated that special education student enrollment would decrease the following school year, the record suggests that enrollment in fact did not decrease. By August, 2002, the District had realized not only that Plaintiff-Appellant's position should not have been terminated but also that it actually needed to hire an additional full-time teacher. Id. at 1696-97. The District has failed to provide any explanation for why the May calculations were in error. See Respondent's Br. at 41-42.

Next, when the District realized in August, 2002, that it should not have eliminated Plaintiff-Appellant's position, it did not offer her a chance to return, J.A. at 2334-35, despite positive evaluations of Plaintiff-Appellant's performance, e.g., id. at 1614-15. The HR Director asserted in an affidavit that Plaintiff-Appellant was not rehired because she was moving to Texas. Id. at 2335. However, the HR Director earlier testified that he had offered Plaintiff-Appellant an elementary school position the day before the District interviewed replacements for Plaintiff-Appellant's old high school position. Id. at 1403, 1611, 2335. Plaintiff-Appellant was interviewing for other positions within the District at the same time. Id. at 1685. A jury would be allowed to conclude that the reason given for not rehiring Plaintiff-Appellant was a post hoc justification.

In addition, Plaintiff-Appellant's supervisor met with the Principal on Friday, May 17, 2002, the same day Plaintiff-Appellant made formal allegations of discrimination. Id. at 230-45, 1912. According to the Principal's notes, the supervisor stated her belief that Plaintiff-Appellant's allegations of discrimination were unfounded, and proposed that Plaintiff-Appellant be relieved of teaching responsibilities immediately. Id. at 1912-13. The Principal's notes indicate that he said he would have to decide what to do, but do not suggest that he appreciated that an employee may not be terminated in retaliation for filing a discrimination complaint. The Principal and HR Director spoke over the weekend, id. at 1914, and Plaintiff-Appellant was notified the following Tuesday that her position probably would be eliminated. Id. at 1598. Given this timing, a jury might conclude that the Principal and HR Director took the supervisor's proposal seriously and shaded their projections of teaching needs downward in order to terminate Plaintiff-Appellant.

Finally, for summary judgment purposes, we cannot foreclose the possibility of an adverse spoliation inference on this record. "In borderline cases, 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." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (quoting Kronisch v. United States, 150 F.3d 112, 128 (2d Cir. 1998)). A spoliation inference is available if: (1) relevant evidence is destroyed; (2) with culpability; (3) when the defendant was under a duty to preserve the evidence. Id. at 109. In an employment discrimination action, the duty to preserve can arise from EEOC regulations. See 42 U.S.C. § 2000e-8(c); 29 C.F.R. § 1602.14; Byrnie, 243 F.3d at 109 (citing Favors v. Fisher, 13 F.3d 1235, 1239 (8th Cir. 1994); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1419 (10th Cir. 1987)). Here, the District has admitted that hard copies of documents setting forth the enrollment projections for staffing purposes probably were destroyed. This evidence is unquestionably relevant. It may have been destroyed in violation of EEOC regulations since the calculations involved Plaintiff-Appellant's termination and were destroyed shortly after being made. J.A. at 1729. Finally, where an "employer was required by law to retain the employee's records, bad faith that might otherwise be required need not be shown to permit an adverse inference; intentional destruction satisfies the mens rea requirement." Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 383 (2d Cir. 2001) (citations omitted). The Defendant-Appellee appears to concede that the records were destroyed intentionally, in the sense that their destruction was not an accident. J.A. at 1729. This is enough, at least for summary judgment purposes. See id.; Byrnie, 243 F.3d at 109.

Even without invoking the legal doctrine of spoliation, moreover, the fact remains that the District did not keep any records of the projected decreases in student enrollment, even though these projections constituted the sole justification for advising an employee who had formally complained of discrimination just two business days earlier and who otherwise received favorable reviews that her position might not be renewed. The jury might conclude that a reasonable employer with legitimate, neutral reasons for terminating an employee under these circumstances would keep some records of the calculations that caused the termination.

The jury, of course, need not view the evidence in the light most favorable to Plaintiff-Appellant, and it may find that the discharge was not retaliatory. On this record, however, the retaliation claim cannot be dismissed as a matter of law.

We have considered the Plaintiff-Appellant's remaining arguments and find them to be without merit. Consequently, we affirm the judgment of the District Court in all respects except with regard to the claim of Title VII retaliatory discharge, which we remand for further proceedings.

For the foregoing reasons, the judgment of the District Court is AFFIRMED in part and VACATED in part and the case is REMANDED.