Spoliation Sanctions — No Bad Faith Required for Adverse Inference If Preservation Is Required by Statute or Regulation and Harmed Party Is within Class Protected by That Provision — Even Adverse Inference Insufficient to Avoid Summary Judgment

Grosdidier v. Broad. Bd. of Governors, 2013 U.S. App. LEXIS 4706 (D.C. Cir. Mar. 8, 2013):

Camille Grosdidier has worked in the French to Africa Service of the Voice of America ("VOA") since 1987, since 1991 as a GS 12. When she did not receive a promotion to Senior Editor GS 13 in 2006, she sued the Chairman of the Broadcasting Board of Governors ("BBG") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She now appeals the grant of summary judgment, contending the district court erred in treating her retaliation claim as a premature hostile work environment claim, and in requiring direct evidence of discrimination beyond evidence of pretext. She also contends that the denial of her motion for spoliation sanctions, in light of the destruction of interview notes by two of the three promotion review panelists, erroneously required evidence of bad faith. We agree with the district court's finding that no reasonable employee could believe the objected-to conduct was unlawful under Title VII and hence summary judgment was appropriately granted on her retaliation claims. And although this court has not held that bad faith is required for a party to be entitled to a spoliation inference where, as here, there is a duty of preservation, the error was harmless. Grosdidier's objections to the selection process, even applying a spoliation inference, fail to demonstrate that summary judgment was inappropriately granted on her discrimination claims. Accordingly, we affirm. ***

Footnote 1. 22 C.F.R. § 1602.14 (2006) provides, as relevant:

Any personnel or employment record made or kept by an employer (including but not necessarily limited to . . . records having to do with . . . promotion . . . ) shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. * * * Where a charge of discrimination has been filed . . . against an employer under title VII . . . , the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action.

***

More troubling is the decision by two panelists to destroy their notes despite an EEOC regulation requiring them to maintain them for at least one year, 29 C.F.R. § 1602.14, supra note 1. The panelists were experienced BBG employees, all of whom had previously served on selection panels. Although one complete set of notes exists along with all of the materials the applicants submitted and the panel's contemporaneous written explanation of their recommendation, the missing notes could have provided a more complete picture of what transpired during the interview process, especially regarding the types of questions the panelists asked generally and of specific applicants and their focus on particular qualities of an applicant. The destroyed notes were relevant to Grosdidier's challenge to her non-selection and their destruction deprived her of evidence that could have been useful in supporting her arguments that the official reason given for hiring Donangmaye was pretextual. Nonetheless, the district court denied Grosdidier's motion for an adverse presumption because there was "insufficient evidence in the record to support a finding of bad faith." Grosdidier, 774 F. Supp. 2d at 104. This was error.

This court has recognized the negative evidentiary inference arising from spoliation of records. See Webb v. D.C., 146 F.3d 964 (D.C. Cir. 1998); Shepherd v. Am. Broad. Co., 62 F.3d 1469 (D.C. Cir. 1995). In Talavera, 638 F. at 311-12, the court held, in accord with other circuit courts of appeals, that a Title VII plaintiff was entitled to an adverse inference jury instruction after the employer negligently destroyed the notes documenting her interview for a vacant position in violation of the same records retention EEOC regulation on which Grosdidier relies. In that case, the employer defended on the ground that the plaintiff's non-selection was based on her poor performance during an interview. See id. at 312. In concluding the plaintiff was entitled to an adverse spoliation instruction, the court considered whether the plaintiff was a "member of the classes sought to be protected" by the record retention regulation and whether "[t]he destroyed records were relevant" to the challenge to the employer's proffered reason for not selecting the plaintiff. Id. The court did not hold that the spoliation inference is available only upon a showing that the employer destroyed the records in bad faith. To the contrary, the spoliation inference was appropriate in light of the duty of preservation notwithstanding the fact that the destruction was negligent. Id. Similarly, the Second and Fourth Circuits do not require evidence of bad faith as a prerequisite to approval of a spoliation inference in the Title VII context. See Buckley v. Mukasey, 538 F.3d 306, 322-23 (4th Cir. 2008); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 109 (2d Cir. 2001); but see Norman-Nunnery v. Madison Area Tech. Coll., 625 F.3d 422, 428 (7th Cir. 2010); Turner v. Pub. Serv. Co. of Col., 563 F.3d 1136, 1148-50 (10th Cir. 2009); Caparotta v. Entergy Corp., 168 F.3d 754, 756 (5th Cir. 1999). After all, there are instances where the court can determine the likely relevance of destroyed evidence without a showing of bad faith destruction. Where the evidence is relevant to a material issue, the need arises for an inference to remedy the damage spoliation has inflicted on a party's capacity to pursue a claim whether or not the spoliator acted in bad faith.

As a Title VII litigant, Grosdidier is within the class protected by the EEOC regulation, and the destroyed notes are likely to have had information regarding her responses and those of the other applicants during the interview as well as the types of questions asked of her and other applicants, all of which could be relevant to her contention that the BBG is hiding the real reason for its selection decision. Grosdidier is therefore entitled to an adverse inference, albeit not her requested inference, which was tantamount to a directed verdict. In moving for a spoliation inference, however, she identified, alternatively, a list of specific adverse inferences regarding the content of the destroyed notes. The existence of some evidence of what the panelists were thinking, including the interview notes of one panelist, multiple contemporaneous writings regarding the reasoning behind the panel's recommendation, and application materials of other applicants, weighs in favor of limiting the scope of the inference, but not in denying any inference at all. Unlike in Talavera, 638 F.3d at 312, where the non-discriminatory reason for the plaintiff's non-selection turned on her performance during an interview, there is no evidence to suggest Grosdidier's interview performance played the same pivotal role. Under the circumstances, a permissive inference bounded by constraints of reason is appropriate -- i.e., the factfinder may draw reasonable inferences in favor of Grosdidier based on the non-accidental destruction of two of the three sets of interview notes.

Nevertheless, even if a factfinder could reasonably infer that the destroyed notes contained information that might be favorable to Grosdidier, favorable evidence is not in all instances equivalent to evidence that would permit Grosdidier to survive summary judgment. See Aka, 156 F.3d at 1292. The inference Grosdidier requires must be sufficient to create a genuine issue of material fact, not simply one that lends some support to her pretext contention. Grosdidier requested such a spoliation inference, including that the interview panelists considered her to have superior qualifications. But this would not be a reasonable inference in light of the evidence of the relative qualifications of the applicants and the panel's evaluation of their qualifications. Neither does the evidence support a reasonable inference that the notes would likely contain information that the BBG is falsely defending on the ground that it selected Donangmaye for his knowledge, skills, and abilities. Even if it would be reasonable to infer that the destroyed notes included evidence corroborating that Grosdidier performed well in the interview or that different interviewers emphasized different qualifications of the applicants, other evidence, including the panel's contemporaneous written explanation for its recommendation in view of the skill sets for the position, would not permit a reasonable finding that the destroyed notes would have established pretext, let alone unlawful discrimination. For this reason, the denial of Grosdidier's request for an adverse spoliation inference was harmless error.

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