Spoliation Doesn’t Prevent Summary Judgment in Spoliator’s Favor If Only Adverse Inference Would Not Save Adversary’s Claims — Appeals: Failure to Order Transcript of Recorded Hearing As Required by FRAP 10(b)(1) Forfeits Claim of Error

Rodriguez v. Forthright, 2016 U.S. App. LEXIS 22463 (3d Cir. Dec. 19, 2016):

*   This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

PER CURIAM

Felix A. Rodriguez appeals from the District Court's order entering summary judgment against him and in favor of his former employer, Forthright. We will affirm.

I.

Forthright is the doing-business name of a company that administers an arbitration program in New Jersey (among other things). Forthright employed Rodriguez as a case coordinator, and he also performed certain Information Technology ("IT") functions. In that capacity, he had access to Forthright's computer system as an administrator and had access to other employees' e-mail accounts.

In August 2011, approximately four years into his employment, Rodriguez came forward with 14 e-mails purportedly sent by two Forthright supervisors between themselves and to other employees containing what he claimed were [*2]  derogatory references to his Hispanic race and origin. Rodriguez acknowledged that he had accessed these employees' e-mail accounts in order to search for e-mails containing his name because he was tired of his co-workers "gossiping" about him.

Roberta Mueller, Forthright's Vice President of Human Resources, commenced an investigation into the e-mails. Mueller's investigation lasted approximately two months and included several interviews of Rodriguez, the authors and recipients of the e-mails, and other Forthright employees. Mueller also reviewed the available electronic data. Mueller ultimately concluded that Rodriguez himself had altered the e-mails by adding the derogatory references about which he complained. Forthright then terminated Rodriguez's employment in October 2011 on the ground that his alteration of the e-mails violated company policy.

Rodriguez later filed suit pro se against Forthright in state court. Rodriguez invoked Title VII of the Civil Rights Act of 1964 and claimed that Forthright terminated him (1) because he is Hispanic and (2) in retaliation for reporting the e-mails and for filing an earlier complaint with the Equal Employment Opportunity Commission during [*3]  Mueller's investigation. Forthright removed the suit to federal court, and the parties engaged in discovery. During discovery, Forthright retained an IT expert to conduct another electronic investigation some three years after the events in question. Forthright's expert concluded that Rodriguez had indeed altered the e-mails.

The parties ultimately filed cross motions for summary judgment. The District Court heard argument and then denied Rodriguez's motion but granted Forthright's motion and entered summary judgment in its favor. The District Court set forth its reasons for doing so on the record. Rodriguez appeals.1

1   Forthright asserted counterclaims against Rodriguez, but it has since withdrawn them with prejudice and cannot pursue them in the future. Thus, we have jurisdiction under 28 U.S.C. § 1291. See Melo v. Hafer, 912 F.2d 628, 633 n.2 (3d Cir. 1990). On appeal, Rodriguez challenges only the entry of summary judgment against him and not the denial of his own motion for summary judgment. Our review of the District Court's entry of summary judgment is plenary. See Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 465 n.4 (3d Cir. 2015). In conducting that review, we view the evidence in the light most favorable to Rodriguez as the non-moving party and will affirm only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. (quoting Fed. R. Civ. P. 56(a)).

***

III.

We will briefly address three other issues that Rodriguez raises on appeal. First, Rodriguez argues that Forthright spoliated evidence and that the District Court should have drawn an adverse inference against it at the summary judgment stage. By way of background, Forthright filed a motion to amend its answer to assert counterclaims based on a document that it discovered in Rodriguez's cubicle following his termination. On Rodriguez's motion, a Magistrate Judge granted Rodriguez permission to have the original document fingerprinted to determine whether there was any evidence that it had been in his possession. Shortly thereafter, however, Forthright asserted that it could not locate the original document (though both parties retained a copy).

Rodriguez then requested leave to file a "motion for spoliation of evidence." (ECF No. 51.) The Magistrate Judge [*14]  apparently addressed that issue at a telephonic conference (ECF No. 52), and then denied the request without prejudice (ECF No. 53). According to Rodriguez, the Magistrate Judge did so on the ground that spoliation should be addressed only after the summary judgment stage. Rodriguez argues that the District Court should have drawn the spoliation inference in considering summary judgment.

It is true that spoliation can be considered at the summary judgment stage. See Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995). But Rodriguez has not preserved this issue,7 and it lacks merit in any event. Rodriguez argued below that Forthright's alleged spoliation of this evidence prejudiced only his ability to defend against Forthright's counterclaims. He did not argue that it prejudiced his ability to defend against summary judgment on his claims, and he raises nothing on appeal suggesting that it did. Rodriguez retained a copy of this document, so the only adverse inference to which he might have been entitled would have been an inference that the original document did not bear his fingerprints. That inference would not have saved his claims from summary judgment.8

 Rodriguez claims that the Magistrate Judge addressed this issue at the telephonic conference, which the docket indicates was recorded, but we have no way to review this issue because Rodriguez has not had the conference transcribed as required by Fed. R. App. P. 10(b)(1). Rodriguez also did not appeal the Magistrate Judge's ruling to the District Court. See Tabron v. Grace, 6 F.3d 147, 153 n.2 (3d Cir. 1993).

8   Rodriguez also refers on appeal to the disappearance of his computer hard drive during Forthright's investigation and to the absence of any recordings of Mueller's interviews. Rodriguez did not mention the hard drive in his "motion for spoliation," and he has not cited any evidence suggesting that Forthright was responsible for its disappearance in any event. Rodriguez did mention the absence of recordings, but he submitted no evidence contesting Forthright's claim that recordings were not made and did not exist.

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