Spoliation Sanctions — Three-Part Test for Adverse Inference Instruction in Tenth Circuit: Duty to Preserve, Prejudice, Bad Faith (Electronic Records Lost, Tangible Records Destroyed)

McCauley v. Board of Comm’rs for Bernalillo Cnty., 2015 U.S. App. LEXIS 3361 (10th Cir. Mar. 2, 2015):

John R. McCauley appeals the district court's grant of summary judgment to the Board of Commissioners of Bernalillo County (Bernalillo County or County) on his employment discrimination and retaliation claims. McCauley, a former Lieutenant with the Bernalillo County Sheriff's Department (BCSD), applied unsuccessfully on three occasions in 2011 for promotion to Captain. In this action against the County, McCauley claimed the County discriminated against him on the basis of his age in denying him a promotion and retaliated against him for his complaints about gender discrimination in BCSD, in violation of the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights [*2]  Act of 1964, and New Mexico law. The district court granted Bernalillo County's motion for summary judgment on all claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.  Background

McCauley began employment with BCSD in 1992 as a deputy, but at all times relevant hereto, he served as a Lieutenant with supervisory duties. In his original complaint in this action, McCauley alleged he complained in June 2009 to his supervisor, Captain Matthew Thomas, that Thomas' preferential treatment of a female employee caused morale problems for other female department employees and created a hostile work environment. In October 2009, McCauley was placed on administrative leave for six months pending investigation of a complaint against him by a female employee. In February 2010, McCauley filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) alleging Thomas gave preferential treatment to a female employee. McCauley further maintained he was discriminated against based on his sex and subjected to retaliation for opposing discriminatory actions and a hostile work environment. McCauley filed this action in January 2011 alleging gender discrimination and retaliation.

About that same time, Danny Houston took office as Sheriff of BCSD. Under Houston's direction, Undersheriff Ron Paiz developed a screening process to be used for promotions to certain positions, including Captain. Under this process, a panel of three experienced law enforcement professionals, none of whom were employed by BCSD, interviewed eligible candidates. Prior to the interviews, panel members reviewed only the candidates' resumes and received confirmation of their eligibility to participate in the promotion process.

Paiz also formulated three interview questions for the panel to ask each candidate. While the panel members could take notes during the interviews, BCSD's standard procedure called for destruction of any documentation immediately after the interview. In contrast, BCSD's standard procedure provided for retention of audio recordings of interviews. The last step in the screening process required the panel, after conducting interviews, to identify its top three candidates for promotion. Sheriff Houston then had discretion to promote any of the three recommended candidates.

In 2011, McCauley applied on three occasions for promotion to a Captain position. In each instance, [*4]  BCSD followed the screening process described above. The three 2011 interview panels consisted of current and retired command staff from the Albuquerque Police Department, the Rio Rancho Police Department, and the New Mexico State Police, as well as a United States Marshal. None of the three panels identified McCauley as one of the top three candidates submitted to Houston. In each instance, Sheriff Houston chose to promote the panel's top candidate, and in one instance, he promoted a panel's top two candidates. All four candidates promoted in 2011 were qualified for the position but were younger than McCauley, who was in his late 50s. Following its standard procedure, BCSD destroyed all written documentation after completion of each of the three panel processes. However, according to the County, the audio recordings of the 2011 panel interviews were inadvertently lost.

In July 2011 and August 2011, McCauley filed additional EEOC charges alleging age discrimination and retaliation in connection with the County's failure to promote him to Captain. He alleged the same claims in his second amended complaint in this action, filed in December 2012. The district court granted summary [*5]  judgment in favor of the County on all claims, concluding that while McCauley established a prima facie case of age discrimination, he failed to show that the County's legitimate, non-discriminatory reason for not promoting him was pretextual. The court further concluded McCauley failed to establish a prima facie case of retaliation. In addition, the court denied his request to sanction the County for spoliation of evidence based on its destruction of the interview panel notes and its loss of the interview recordings.

II.  Discussion

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C.  Denial of a Spoliation Sanction

McCauley asserted below that Bernalillo County's destruction of the panels' interview notes and its loss of the audio recordings of the panels' interviews required the district court to infer that the notes and recordings contained evidence demonstrating the County's proffered reason for not promoting him was pretextual. The district court construed this argument as a request for an adverse-inference spoliation sanction, requiring McCauley to show (1) Bernalillo County possessed a duty to preserve the evidence; (2) the destruction of the evidence prejudiced McCauley; and (3) Bernalillo County destroyed the evidence in bad faith. See Turner, 563 F.3d at 1149. The district court made no finding regarding the County's duty to preserve the evidence, but it specifically found McCauley suffered no prejudice from the loss or destruction of the evidence and the county did not act in bad faith.

On appeal, McCauley contends the district court should have denied summary judgment on all of his claims based on the destruction of key evidence. Specifically, he contends the district court erred by relying on Turner, where this court affirmed a district court's denial of a spoliation [*13]  sanction based on a finding of no bad faith. See id. at 1149-50. McCauley points out that in Turner, the defendant inadvertently lost its interview notes before the plaintiff filed her discrimination charge and the employer produced through discovery numerous other documents relating to the relevant hiring processes. See id. at 1150. In contrast, McCauley contends the County's claim in this case that it inadvertently lost all of the audio recordings from the promotion processes in which he participated is simply incredible. But McCauley ignores the district court's rationale for holding otherwise and we conclude the district court did not err in finding McCauley has failed to show the County acted in bad faith in destroying the interview notes and failing to preserve the recordings.

McCauley also asserts that, unlike in Turner, the County's destruction and loss of evidence leaves him "no objective evidence of what went on in the promotional process," thereby prejudicing him. Aplt. Opening Br. at 29. Once again, he ignores the district court's reasoning. In finding that McCauley failed to demonstrate sufficient prejudice to justify a spoliation sanction, the district court emphasized that his pretext [*14]  argument depended on a showing that Sheriff Houston had manipulated the panels' recommendations. It noted that none of the panel members worked for BCSD, there was no evidence any panel member harbored any age bias, and no reason to conclude any panel member would be unwilling to honestly describe the panel process. Yet McCauley failed to seek any evidence from the panel members in discovery. Thus, the court concluded the notes and recordings were not his only source of information about the panel processes. On appeal, McCauley does not mention the district court's rationale for concluding he was not prejudiced. Thus, he fails to show the district court abused its discretion in refusing to infer, as a spoliation sanction, that the County's proffered reason for not promoting him was pretextual.

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