Northington v. H & M Int’l, 712 F.3d 1062 (7th Cir. 2013):

This is a Title VII case involving two issues on appeal: whether in a grant of summary judgment there was any relevant issue of material fact and whether a discovery sanction was properly applied and adhered to by the district court.

Since 2005, plaintiff-appellant Ehnae Northington worked as a lot checker at one of H & M International Transportation's railroad and trucking terminals, Global II. Northington dated an H & M employee, Terrell Maghett. Maghett was also involved in a seven-year relationship with another H & M employee, Shequita Sims. Sims became suspicious of the existence of a relationship between Northington and Maghett and made verbal and physical threats toward Northington. Northington brought certain concerns that she had about Sims' behavior to the terminal manager, Bart Collins. However, Collins was then dating (and has subsequently married) Sims' mother, Tanga Hoskin-Collins, the assistant terminal manager. Collins met with Sims and Northington to attempt to settle their dispute and warned them to keep their personal disputes outside of the workplace.

The conflict between Northington and Sims culminated in Sims' physically assaulting Northington at a gas station, off H & M property. Northington then filed a criminal complaint against Sims. Sims pleaded guilty to battery and the Cook County Circuit Court issued an Order of Special Conditions of Bond or Release (SCOB), which required Sims not to have any unlawful contact with Northington at work. Northington provided the SCOB to the Union, but did not provide a copy to H & M. Additionally, Northington made internal complaints to H & M officers, including H & M's President and Director of Operations. Northington complained that Sims and Hoskin-Collins harassed her, and she complained about the management style of Collins and Hoskin-Collins. Northington did not complain that the harassment was based on her race or gender.

During a safety inspection of Northington's work vehicle, the inspector suspected that Northington was under the influence of drugs due to certain behavior: slow response time, difficulty following conversation and constricted pupils. The inspector spoke to Collins and they agreed that Northington should be tested for drugs based on their "reasonable suspicion," which was consistent with H & M's policy. Northington and the inspector went to Concentra, a drug testing facility, and Northington provided a urine sample. A Concentra nurse determined that the sample was unusable because it was "too cold." Concentra procedures required a second urine sample, within three hours, under the direct observation of a Concentra nurse. Northington was instructed to wait in the waiting room until she could donate another sample, but she left Concentra without providing a second sample, despite warnings that such an exit would be considered a "Refusal to Test" and be reported to H & M.

Collins requested that Mary Hayes, Vice President of Human Resources, terminate Northington's employment based on her refusal to test. Hayes conducted an investigation, reviewed by two other H & M officers, and these three officers concluded that Northington had refused to take a reasonable suspicion drug test, under procedures provided by Concentra, and that situation warranted termination. Effective May 2, 2008, Northington was terminated by H & M due to her refusal to test. The three H & M officers were unaware of Northington's criminal complaint against Sims.

Northington filed suit, claiming that her termination was in retaliation for a series of complaints against Sims and in violation of Title VII. The district court granted H & M's motion for summary judgment, finding that Northington failed to establish her retaliation claim because she did not establish that she had participated in protected activity under Title VII. Northington appeals the district court's decision granting summary judgment.

In the lower court, Northington filed a motion for sanction for failure to produce electronically stored information on the basis that H & M had failed to preserve the contents of relevant email accounts. Collins and Hoskins-Collins were no longer employed by H & M by September 2008 and their accounts were remotely wiped. In January 2010, H & M moved its email system to another vendor. During this transition, Sims' account was deemed inactive and deleted. H & M should have preserved these accounts. The district court found that H & M's conduct was negligent but not willful and (1) ordered H & M's counsel to conduct another search for documents; (2) assessed H & M reasonable costs and fees; (3) deemed specific facts admitted at trial; and (4) precluded H & M from making certain arguments at trial. Northington argues on appeal that this sanction precluded the award of summary judgment.

Footnote 1. The Order mandated the follow instruction to a jury or judge in a bench trial: "At trial, the jury be instructed that beginning in July 2008, the defendant had a duty to preserve all electronically stored information, including emails, concerning plaintiff's allegations but did not do so. In addition, the defendant is barred from arguing that the absence of discriminatory statements is evidence that no such statements were made."

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The remaining matter of the discovery sanction is easily dismissed. Northington contends that the discovery sanction requires application of an adverse inference and therefore precludes summary judgment for H & M. She argues that the sanction allows an adverse inference that the negligent destruction of electronically stored information indicates the lost information contained evidence of Title VII violations. However, the sanction only prevents H & M from inferring an absence of discrimination from the lack of evidence. The Magistrate specifically noted that H & M did not destroy the evidence in bad faith, which is a required element for allowing this kind of adverse inference. See Faas v. Sears, Roebuck & Co.., 532 F.3d 633, 644 (7th Cir. 2008). Accordingly, the discovery sanction entered against H & M does not preclude summary judgment.