Commercial Litigation and Arbitration

Electronic Spoliation Sanctions: The “Intent to Deprive” Standard in Rule 37(e)(2) Is The Equivalent of Bad Faith in Other Spoliation Contexts — Bad Faith Generally Means Destruction For The Purpose Of Hiding Adverse Evidence — Mere Negligence Is Insufficient Because It Does Not Sustain An Inference of Consciousness of a Weak Case

Thomas v. Walmart, Inc., 2024 U.S. App. LEXIS 8745 (11th Cir. Apr. 11, 2024) (unpublished):


*1 Steve Thomas, proceeding pro se, appeals the district court’s grant of summary judgment for Walmart, his former employer, on his sexual harassment and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and his failure-to-accommodate and retaliation claims under the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. He argues that his coworker’s alleged sexual advances, his request for future medical leave, and his request to avoid trash-disposal duties because of health conditions all led to his retaliatory firing, and that Walmart should be held liable for his coworker’s conduct.

Relatedly, he challenges the district court’s reliance on certain declarations that Walmart submitted in support of its summary judgment motion. He argues that, in granting summary judgment, the court improperly relied on those declarations because there were factual inconsistencies among them, amounting to perjury.

Separately, he challenges the district court’s pre-summary judgment denial of his motion for spoliation sanctions. Thomas argues that the court abused its discretion in denying his motion because Walmart knew its surveillance footage would be harmful, so it destroyed it, warranting the entry of default judgment in Thomas’s favor.

Because Thomas’s arguments fail on all fronts, we conclude that the district court did not err in denying the motion for sanctions or in granting the motion for summary judgment. Accordingly, we affirm the district court.


Steve Thomas began working as a maintenance associate at the Walmart in Snellville, Georgia around October 2019. He alleges that, beginning in August 2021, another employee named Nathalee Gooden would sometimes approach him at work and speak to him. She complimented his vintage car and mentioned that she wanted to go for a ride in it, once asked whether he was married or dated, once asked where he lived, and once allegedly touched his arm to see whether he was wearing a ring. Thomas never complained about the behavior or otherwise alerted anyone at Walmart, other than briefly discussing the interactions with a supervisor “in a sort of hilarious fashion” that “wasn’t in a ... serious way.”

As part of his normal work routine, Thomas would place trash into a compactor in the back of the store. One day while compacting trash, some of the waste fell onto Thomas’s body. Frustrated, he began cursing. Gooden overheard the language and approached him, instructing him to calm down and refrain from using profanity. Gooden then says that Thomas began to verbally attack her, using profanity and making negative references to her race. Thomas concedes that he used profanity during the altercation and that he told her to get away from him. Gooden immediately reported the incident to Jewel Hemphill, the temporary store manager, who then investigated the incident by interviewing Thomas, Gooden, and other associates in the area at the time of the altercation. When all associates corroborated Gooden’s account of events, Hemphill fired Thomas after deciding that such behavior was inappropriate and inconsistent with Walmart’s culture and values.

*2 Separately, before the altercation with Gooden, Thomas requested a leave of absence with Walmart’s third-party medical leave coordinator so he could undergo cancer treatment for six weeks beginning in October. His request was still pending at the time he was fired.

Thomas filed a pro se complaint against Walmart, alleging claims under Title VII and the ADA for sexual harassment, disability discrimination, and retaliation. He alleged that he worked under different terms of employment from similarly situated employees, faced sexual harassment, did not receive disability accommodations, was retaliated against, and was ultimately fired.

During discovery, he moved for spoliation sanctions, seeking a default judgment for Walmart’s failure to preserve surveillance footage. The district judge found that Thomas’s requests for footage were vague and overbroad and that the extreme sanction was unwarranted because he had not established the footage even existed. And even assuming it did exist, the court found that he hadn’t established whether it would include audio, rendering it of little value given that he was fired for using profanity. Because Walmart was at most negligent in failing to stop its ordinary document retention and destruction policy, default judgment—the sole remedy that Thomas sought—was unwarranted.

Following the close of discovery, Walmart moved for summary judgment on all claims. The district court granted the motion, finding that Gooden’s conduct was not severe or pervasive and that even if it was, there was no basis for holding Walmart liable. It also found that Thomas had not been denied a disability accommodation because his request was still pending at the time of his termination. Thomas’s retaliation claims were denied because, even assuming Thomas could state a prima facie case for retaliation, Walmart had articulated a legitimate, nondiscriminatory reason for his termination. Thomas timely appealed.


We review decisions regarding spoliation sanctions for an abuse of discretion. Skanska USA Civ. Se. Inc. v. Bagelheads, Inc., 75 F.4th 1290, 1310 (11th Cir. 2023). A grant of summary judgment is reviewed de novo, viewing the evidence in the light most favorable to, and drawing all reasonable inferences in favor of, the nonmoving party. Wilcox v. Corr. Corp. of Am., 892 F.3d 1283, 1286 (11th Cir. 2018). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).


Thomas raises five arguments on appeal. We will address each in turn.

  1. Spoliation Sanctions

Thomas first argues that the district court abused its discretion in denying his motion for spoliation sanctions. Rule 37(e) of the Federal Rules of Civil Procedure provides district courts with several options for imposing sanctions “[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it.” If the court finds “the party acted with the intent to deprive another party of the information’s use in the litigation,” it may “dismiss the action or enter a default judgment.” Fed. R. Civ. P. 37(e)(2)(C). The intent to deprive element “is the equivalent of bad faith in other spoliation contexts.” Skanska, 75 F.4th at 1312. “[B]ad faith generally means destruction [of evidence] for the purpose of hiding adverse evidence.” Id. (quotation marks omitted). “This standard is more than mere negligence,” id., for “[m]ere negligence ... does not sustain an inference of consciousness of a weak case.Tesoriero v. Carnival Corp., 965 F.3d 1170, 1183 (11th Cir. 2020) (quotation marks omitted).

*3 The district court did not abuse its discretion in denying Thomas’s motion for spoliation sanctions. Because it found Thomas’s requests for surveillance footage to be vague and overbroad, the court concluded that Walmart’s actions were negligent at most and lacking in bad faith. We agree that Walmart’s behavior was nowhere near the willful and flagrant conduct needed to warrant the drastic sanction of a default judgment, such as willful and flagrant violations of court orders or obstructing the prosecution of a case. See Malauetea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1538, 1543 (11th Cir. 1993). Because Walmart’s conduct was merely negligent, the sole, case-dispositive remedy of default judgment that Thomas sought was unwarranted.



Accordingly, the district court is AFFIRMED.

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