Commercial Litigation and Arbitration

Spoliation — Unsuccessful Applicant’s Emails Asking Why She Was Not Hired Insufficient to Trigger Duty to Preserve — Sixth Circuit Applies Residential Funding Standard — Destruction in Ordinary Course

Perryman v. Postmaster General, 2012 U.S. App. LEXIS 7328 (6th Cir. April 11, 2012):

Perryman's ADEA claim stems from USPS's denial of Perryman's application for the position of customer services supervisor at the Chagrin Falls, Ohio Post Office, the same position that she held at the South Euclid, Ohio Post Office. Perryman applied for the position on May 10, 2007. At the time of her application, Perryman was fifty-one years old and had worked for USPS for thirty-three years. Mark Gebler, the Postmasterfor the Chagrin Falls, Ohio Post Office, interviewed four applicants for the position, including Perryman. Gebler ultimately selected applicant Ana Ruiz-Borrero. At that time, Ruiz-Borrero was thirty-six years old and had previously been the acting customer services supervisor at the Chagrin Falls branch. Gebler informed Perryman that she was not selected for the position via letter dated June 12, 2007. In the two weeks following that letter, Perryman sent Gebler multiple emails to inquire about why she was not selected. Gebler did not respond. Perryman filed an administrative complaint with USPS on July 19, 2007, in which she alleged that her non-selection was due to age and race-based discrimination. The National Equal Employment Office ("EEO") of Investigative Services filed an Investigation Report on Perryman's claim on November 15, 2007. As part of the EEO investigation, Gebler signed a Litigation Hold Notice wherein he stated that he saved all materials relevant to the complaint, including his personal notes, and that he would preserve "all potentially relevant information that presently exists" for one year. ***

Finally, Perryman claims that contrary to the mandates in the Litigation Hold Notice, Gebler did not retain his personal notes from Perryman's interview. Perryman also claims this violated USPS procedure which required Gebler to "keep records that make it possible to demonstrate how established selection procedures have been followed." In addition, USPS failed to maintain the file of a USPS employee over forty hired by Gebler, Charlene Payne, who was referenced by Gebler in his EEO affidavit to demonstrate that he did not discriminate against applicants based on race or age. According to Perryman, this spoliation of evidence supports an adverse inference presumption of pretext.

We disagree. Perryman has not demonstrated that either Gebler or USPS had an obligation to preserve the information discarded, nor that the information was discarded "with a culpable state of mind" that would warrant an adverse inference presumption. See Beaven v. Dep't of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)). Gebler signed the Litigation Hold Notice on September 26, 2007, over three months after Perryman's interview. This notice appears to be a standard USPS form and contains the following sentence: "I have saved all materials that are potentially relevant to this complaint, including my personal notes and email." The last paragraph of the notice begins with the phrase, "I will preserve, for one year from the date that I sign this Notice, all potentially relevant information that presently exists, as well as potentially relevant materials created in the future . . . ." (emphasis added). Once Gebler signed the notice he was obligated to maintain materials still in existence. According to Gebler, by the time he received the notice he had already discarded his notes from Perryman's interview. Although Perryman asserts that Gebler should have foreseen the need to preserve the notes based on Perryman's emails questioning her non-selection, "if there was no notice of pending litigation, the destruction of evidence does not point to consciousness of a weak case and intentional destruction." Beaven, 622 F.3d at 553 (internal citations omitted). It is not disputed that Gebler was not aware of pending litigation or even a pending investigation at the time of Perryman's interview, nor in the days afterward when Perryman sent the emails.

With respect to Charlene Payne's file, Perryman has not demonstrated why USPS was obligated to keep that file nor that USPS's contention that the file was destroyed in the regular course of business is false. Perryman argues that because Gebler used his hiring of Payne to demonstrate his lack of age bias and Gebler's deposition revealed that Payne was not his first choice for the position, USPS should have known to preserve Payne's file. However, Perryman has not refuted USPS's claim that at the time Gebler initially selected someone for the position that Payne was subsequently hired for, Payne had not yet applied. After Gebler's initial selection was deemed ineligible for that position, Payne later applied and was selected. Further, both Gebler's initial selection and Payne were over forty. Thus, not only has Perryman failed to demonstrate that Gebler or USPS intentionally destroyed Payne's file, she has also not shown that the contents of that file would support her claim of age discrimination. See Beaven, 622 F.3d at 553. Accordingly, an adverse inference in support of pretext is not warranted.

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