Auer v. City of Minot, 2018 U.S. App. LEXIS 19945 (8th Cir. July 19, 2018):

This is the second of what will be at least three decisions from this court arising out of Colleen Auer's one-month stint as city attorney for Minot, North Dakota. See Auer v. Trans Union, LLC, 834 F.3d 933 (8th Cir. 2016); Auer v. CBCInnovis, Inc., No. 17-2413 (submitted Apr. 9, 2018). In this installment, Auer accuses the city of firing her for reporting harassment and discrimination. She also claims the city retaliated against her for speaking out at a city-council meeting and unfairly besmirched her professional reputation. Because we conclude Auer's harassment allegations were unprotected and her remaining claims are meritless, we affirm the district court's¹ grant of summary judgment to the city.

I.

About three weeks into her one-year probationary term as city attorney, Auer sent a "Notice and Demand" to the president of the city council, the interim city manager, and the city's human-resources director. In [*2]  the notice, Auer accused the interim city manager, Cindy Hemphill, of "unlawful harassment based on sex." Auer claimed Hemphill had made impossible demands on certain aspects of her work, prevented her from performing other key duties, and repeatedly required her to act against her better judgment as an attorney. As proof that this alleged mistreatment was sex-based, Auer recounted a meeting, held two days before she sent the notice, at which Hemphill had raised concerns about Auer's performance and her interactions with colleagues. According to Auer, Hemphill revealed her bias by comparing Auer to the previous city attorney, who was a man.

The mayor directed three members of the city council, including the council president, to investigate. The council members conducted interviews, received a written response from Hemphill, and filed a report concluding that "no harassment based upon sex occurred." The mayor agreed and closed the case. Hemphill fired Auer the next day, with the blessing of the mayor and the council president.

The city council met a few days later. When the council president opened the floor to "other business," Auer stood and accused Hemphill of violating state and [*3]  local law by firing her without first consulting the council. Hemphill defended her decision, including the procedure she used. The council then voted unanimously to "ratify and approve" Auer's termination. Afterward, when council members asked why Auer had been fired, the city clerk sent them copies of Auer's notice, Hemphill's written response, and the report the mayor had received. When local news reporters asked the council president about Auer's termination, he mentioned insubordination as the reason for the decision.

Auer sued and eventually advanced three theories of liability: (1) the city fired her in retaliation for reporting illegal sex-based harassment and discrimination; (2) the city unfairly tarnished her professional reputation without giving her a chance to defend herself; and (3) the city retaliated against her for publicly challenging the process that led to her termination. The district court granted summary judgment to the city. On appeal, Auer principally argues that she was entitled to present her theories to a jury.

II.

First, a detour. In addition to her substantive claims, Auer appeals the district court's denial of a motion seeking to sanction the city for its [*4]  alleged malfeasance in losing evidence. According to Auer, she was entitled to a presumption that the lost evidence proved her allegations.² The court held that the grant of summary judgment on the merits mooted Auer's motion. This put the cart before the horse. After all, if Auer was entitled to the presumption she sought, it was premature to grant summary judgment without evaluating whether the presumption itself could create a genuine dispute of material fact on at least some of Auer's claims.

Even so, Auer is not entitled to relief. Precisely because deciding a case based on hypothesized evidence is strong medicine, Federal Rule of Civil Procedure 37(e)(2)(A) expressly states that an adverse presumption requires a finding that electronically stored information was lost because one party "acted with the intent to deprive another party of the information's use in the litigation." See also Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007) ("The ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of evidence indicating a desire to suppress the truth . . . .").

Auer did not present sufficient evidence of this serious and specific sort of culpability. She supported her request with allegations that incriminating voicemails, [*5]  emails, and other electronic communications were lost because the city failed to properly search some computers, tablets, and phones; waited too long to search others; and generally failed to take basic steps necessary to find and preserve files that could be relevant to her case. Still, her allegations would at most prove negligence in the city's handling of electronic information, not the sort of intentional, bad-faith misconduct required to grant an adverse presumption. See Stepnes v. Ritschel, 663 F.3d 952, 965 (8th Cir. 2011) (noting that "[s]evere spoliation sanctions, such as an adverse inference instruction, are only appropriate upon a showing of bad faith").

To be sure, intent can be proved indirectly and Auer did not need to find a smoking gun before she could seek sanctions against the city. See Morris v. Union Pac. R.R., 373 F.3d 896, 901-02 (8th Cir. 2004). But without even circumstantial evidence that city personnel had knowledge that relevant files were being lost (if indeed they were), the record cannot support a finding that the city "inten[ded] to deprive" Auer of information she could have used in this case. Fed. R. Civ. P. 37(e)(2); cf. Morris, 373 F.3d at 902-03 (holding that it was improper to instruct the jury it could assume missing evidence was unfavorable to a party when the record did not support an inference that the party [*6]  "consciously permitted" its destruction). The relief Auer sought was therefore unavailable as a matter of law.

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¹ The Honorable Daniel L. Hovland, Chief Judge, United States District Court for the District of North Dakota.

² Auer also sought permission to search for evidence she thinks was never lost but was simply hard to find, such as deleted emails that might still be present in the city's electronic archives. The district court was within its discretion to deny her request, which was undeveloped and unsupported by citations to authority. Cf., e.g., United States v. Sigillito, 759 F.3d 913, 933 (8th Cir. 2014).