Pending Spoliation Motion Waived by Litigating Summary Judgment and Failing to Alert Court That the Spoliation Motion Could Affect SJ Outcome

Helget v. City of Hays, 2017 U.S. App. LEXIS 140 (10th Cir. Jan. 4, 2017):

Firma Helget worked for the City of Hays, Kansas, as the administrative secretary for the Hays Police Department. In 2012, the City terminated Helget, and she initiated this 42 U.S.C. § 1983 action against the City, City Manager Toby Dougherty, and Police Chief Donald Scheibler, alleging they violated her First Amendment rights. Helget claims they terminated her in retaliation for her voluntarily providing an affidavit in support of a former police officer's wrongful-termination litigation against the City.

The district court granted summary judgment in favor of the defendants on Helget's First Amendment retaliation [*2]  claims, concluding the City's interest as a public employer outweighed Helget's interest in her speech regarding a former employee's litigation. The court also granted qualified immunity to Dougherty and Scheibler.

We affirm. Applying the familiar Garcetti/Pickering1 test, we conclude the City's operational interests outweigh Helget's speech interest in submitting an affidavit in ongoing civil litigation. Because Helget's role required her to work closely with her superiors and maintain confidential information, her disclosure of those confidences caused her superiors to lose trust in her, directly undermining the Department's operations. We also reject Helget's attempt to collaterally attack the district court's order because the court entered summary judgment before ruling on her pending motion for spoliation sanctions. Helget forfeited this challenge because she failed to sufficiently raise the issue during summary judgment briefing.

1   Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

I. Background

Firma Helget was the administrative secretary for the Hays Police Department, a position she occupied for ten years before her termination in 2012. She joined the City in 1989, and during her time with the Department, she worked with multiple [*3]  police chiefs and assistant police chiefs.

In her capacity as administrative secretary, Helget was tasked with "facilitating the smooth operation of the Department" and "act[ing] as a general information center." Supp. App. 141. This required Helget to work closely with the police chief and assistant police chief and to maintain the Department's confidential records and files. The City's personnel manual specifically informs its employees that "disclosing confidential records or information unless directed to do so by a department head or supervisor" is cause for termination. App. 4 (Memorandum and Opinion, Mar. 19, 2015, Doc. 211) (quoting personnel manual).

One of Helget's official duties was to act as the Department's purchasing agent. In November 2010, she prepared a list of officers who were due new ballistic vests in the upcoming year--ballistic vests have a limited life and are replaced approximately every five years. Helget presented the list to then-Assistant Police Chief Philip Hartsfield, who instructed her to remove Officer Blaine Dryden from the list. This was the first time Helget had been told to remove an officer from a ballistic vest ordering list. She removed Dryden's name and, [*4]  on December 6, 2010, she ordered the vests as Hartsfield instructed.

One month later, on January 7, 2011, the City terminated Dryden, citing an incident that occurred in late December 2010, where Dryden was accused of unprofessional and inappropriate conduct at a court hearing. Dryden, however, maintained the City wrongfully terminated him because of his union-organizing activities, and subsequently sued the City under 42 U.S.C. § 1983. In challenging the City's reason for his termination, Dryden alleged the City had decided not to order him a new ballistic vest in early December 2010, prior to the incident the Department used to justify his termination.

During summary judgment briefing in the Dryden federal court case, Dryden's counsel contacted Helget regarding the case, and she agreed to execute an affidavit in support of the litigation. In the affidavit, Helget stated:

(1) She had been instructed to remove Dryden from the ballistic vest ordering list in early December 2010;

(2) Dryden was known to be an active member in the local Fraternal Order of Police chapter; and

(3) Former Police Chief James Braun had cautioned her about speaking with Dryden when she pursued her own grievance against the Department. [*5]

App. 40-41. Helget did not consult with anyone at the City before disclosing this information. And, her affidavit was later used as an exhibit to Dryden's opposition to the City's motion for summary judgment.

On May 1, 2012--after Helget executed the affidavit, but before City officials were aware of it--Police Chief Donald Scheibler and Assistant Police Chief Brian Dawson met with Helget to discuss her job performance. They counseled her about her excessive personal internet use during business hours and about her demeanor with her coworkers. The meeting was recorded and included in Helget's personnel file. Several days later, on May 9, 2012, Helget informed Scheibler she was considering leaving the Department; she had in fact applied for an administrative assistant position at a local university.

On May 10, Scheibler, for the first time, learned about Helget's affidavit from the City's legal counsel in the Dryden litigation. City officials sent multiple emails to one another about how to handle the situation. In particular, Human Resource Coordinator Erin Giebler and Assistant City Manager Paul Briseno exchanged emails regarding whether the City could discipline or terminate Helget for [*6]  signing the affidavit. As a result of Helget's statements, Scheibler testified he no longer trusted Helget with confidential information: "I think she intentionally took that confidential information and released it . . . just deteriorating any hope for any trust between the person that she was supposed to help run the police department." App. 9 (Memorandum and Opinion, Mar. 19, 2015, Doc. 211) (quoting deposition testimony).

Accordingly, on May 14, Scheibler presented a memorandum to City Manager Toby Dougherty recommending the City terminate Helget. The list of reasons for termination included: (1) lack of communication and interaction with command staff; (2) negative interactions with staff; (3) violations of the City's personal-internet-use policy; and (4) disclosing confidential information in the Dryden litigation. Scheibler terminated Helget two days later.

***

C. Helget's Motion for Spoliation Sanctions

Helget lastly argues the district court improperly granted summary judgment before resolving her pending motion for spoliation sanctions.

By way of background, after Helget's termination, her counsel sent a litigation-hold letter to the defendants demanding they preserve relevant electronic documents and communications. Suspecting the City had not fully complied with the discovery request, Helget asked the court to order production of documents and sanctions. The court found [*18]  "potential" spoliation issues with the internet-usage and email history of certain custodians and ordered the City to have the information forensically restored.5 Helget later filed a second motion for spoliation sanctions, but the court never acted on the motion.

5   Relatedly, Helget filed a separate motion under Federal Rule of Civil Procedure 37, alleging discovery violations by the defendants. The court granted the motion in part, ordering the City to produce certain IT service logs.

While the sanctions motion was pending, all parties moved for summary judgment. In opposing the City's motion, Helget made scant reference to her outstanding motion for spoliation sanctions and how its disposition might influence summary judgment. The only reference in over 100 pages of briefing is a vague comment in the introduction of Helget's opposition to the City's motion: "[T]he documentary evidence that remains after the City's well-documented spoliation and failure to put a litigation hold in place demonstrates, at a minimum, that there are disputed issues of material fact which necessitates a trial." App. 304. Nevertheless, Helget now asserts the district court erred by failing to rule on her second motion for spoliation sanctions before disposing of her claims on summary judgment.

We generally review a district court's ruling on a motion for spoliation sanctions for an abuse of discretion. Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1103, 1032 (10th Cir. 2007). District courts have "substantial [*19]  weaponry" in their arsenal to shape the appropriate relief for a party's spoliation of evidence.6 See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009); see also Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) ("[A] district court has broad discretion in choosing an appropriate sanction for spoliation, 'the applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.'" (citation omitted)). Among the options, a court may strike witnesses, 103 Inv'rs I, L.P. v. Square D Co., 470 F.3d 985, 988 (10th Cir. 2006); issue an adverse inference, Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1219-20 (10th Cir. 2008) ; exclude evidence, see Jordan F. Miller Corp. v. Mid-Continent Aircraft Serv., Inc., 139 F.3d 912 (10th Cir. 1998) (unpublished); or, in extreme circumstances, dismiss a party's claims, id.7

 Federal courts possess the inherent powers necessary "to manage their own affairs so as to achieve the orderly and expeditious disposition of cases," including imposing appropriate sanctions. Chambers v. NASCO, Inc., 501 U.S. 32, 43, 44 (1991). Although this circuit has not directly spoken to the issue, other circuits have held that sanctions for the spoliation of evidence is a matter of federal law. Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009) (en banc) (listing the Second, Fourth, Fifth, and Ninth Circuits); Sherman v. Rinchem Co., 687 F.3d 996, 1006 (8th Cir. 2012); Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005); see also 22 Kenneth W. Graham, Jr., Federal Practice & Procedure § 5178.3 (2d ed. & Apr. 2016 Update). But see Rowe v. Albertsons, Inc., 116 F. App'x 171 (10th Cir. 2004) (unpublished) (applying Texas state law to spoliation sanctions issue). This particular issue is not dispositive here.

7   The 2015 revisions to Federal Rule of Civil Procedure 37(e) provide courts further guidance on issuing sanctions for destroying or failing to preserve electronically stored information (ESI). The Rule instructs courts to "order measures no greater than necessary to cure the prejudice." Fed. R. Civ. P. 37(e)(1). But where a party acts with the intent to deprive another from using the ESI in litigation, a court may "presume that the lost information is unfavorable to the party," issue an adverse-inference instruction, or "dismiss the action or enter a default judgment." Fed. R. Civ. P. 37(e)(2)(A)-(C).

But, here, Helget forfeited her right to seek refuge in her undecided motion for spoliation sanctions by failing to raise the argument in any meaningful way in opposing summary judgment. Although not directly on point, the precepts of Federal Rule of Civil Procedure 56(d) are instructive. Rule 56(d) allows a nonmovant to show by affidavit or declaration that, for a specified reason, it cannot present facts essential to justify opposition to a motion for summary judgment. That is, it provides a means for a nonmovant to "ask the court to refrain from acting on the summary judgment request until additional discovery can be conducted." Been v. O.K. Indus., Inc., 495 F.3d 1217, 1235 (10th Cir. 2007). Thus, Rule 56(d) serves [*20]  a noticing function that "safeguards against an improvident or premature grant of summary judgment." See 10B Charles Alan Wright, Arthur R. Miller et al., Federal Practice & Procedure § 2740 (3d ed. & Sept. 2016 Update) (footnote omitted). A nonmovant failing to raise the evidentiary impediments preventing it from meeting its summary judgment burden acts at its own peril. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998).

Helget balks at the relevancy of Rule 56(d) because additional discovery or an extension of time would have been futile. But the purpose of Rule 56(d) is broader than simply postponing a ruling while the parties conduct additional discovery. It also serves a noticing function by alerting the court that a summary judgment ruling might be premature. And the Federal Rules and our precedents discussed above place added emphasis on a nonmovant's duty to inform the court when it cannot present facts sufficient to meet its summary judgment burden. Although we stop short of holding Helget had a duty to file a Rule 56(d) affidavit to preserve the issue, she did have some obligation to alert the district court that her pending spoliation motion could affect the summary judgment motions. In over 100 pages of briefing on summary judgment, Helget made a single, [*21]  passing reference to spoliation. We cannot agree that this vague reference is sufficient to allow Helget to collaterally attack the district court's order on summary judgment by pointing to the court's failure to first rule on her spoliation sanctions motion.8 We acknowledge that as a matter of best practices, the district court should have ruled on the motion before, or in the process of, deciding summary judgment. But without guidance from the party seeking sanctions on how spoliation could affect pending summary judgment issues, it is difficult to see how the district court abused its discretion in proceeding the way it did.9

8   And because Helget "hasn't even attempted to show how [her] new legal theory satisfies the plain error standard," it "marks the end of the road for an argument for reversal not first presented to the district court." Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131-32 (10th Cir. 2011).

9   We also reject Helget's attempt to conform her requested sanctions to the current posture of the case. Helget argues that where an opposing party intentionally destroys evidence without justification, "that 'destruction of evidence' . . . 'is adequate to defeat summary judgment.'" Aplt. Br. at 27 (quoting Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001)); see also Reply at 9-10. Helget has failed to cite, and our own research has not revealed, any case from this circuit supporting such proposition. But more detrimentally, she raises this form of sanction for the first time on appeal.

We therefore reject Helget's argument that the district court committed reversible error by not ruling on her motion for spoliation sanctions before disposing of her claims on summary judgment.

III. Conclusion

In sum, Helget cannot point to any error in the district court's order granting summary judgment in favor of the defendants on her First Amendment retaliation claims. We therefore AFFIRM.10

10   We also DENY the defendants' request to dismiss Helget's appeal for filing an untimely opening brief. Aple. Br. at 3. Helget filed her brief within ten days of the letter order dated October 20, 2015, as instructed.

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