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Court Finds Evidence of Spoliation in Employment Discrimination Action, Orders “Missing Evidence” Instruction Be Given to Jury

Posted on December 20th, 2017

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Follow our blog to learn more about ESIVasser v. Shulkin, No. 14-0185, (Dist. Ct. D.C., 2017), involves an employment discrimination action brought by Plaintiff Vasser against David Shulkin in Shulkin’s capacity as Secretary of the United States Department of Veterans Affairs (“VA”). Plaintiff claims that the VA discriminated and retaliated against her when it failed to promote her several times during the course of three years of employment with the department. During this litigation, Plaintiff filed a motion claiming spoliation of evidence, and requesting that the court issue sanctions against the VA.

In September 2008, Plaintiff applied for a position as a Deputy Regional Manager in Bay Pines, Florida per a job vacancy announcement. According to the Plaintiff, the former Regional Manager responsible for selecting a candidate wanted to hire her, but was unable to get the necessary approval. Then, the vacancy was canceled for the job announcement relative to Plaintiff’s application. A few months later, in April 2009, the same job position, (Deputy Regional Manager in Bay Pines, Florida) was again advertised. Plaintiff once again applied for the position, but someone else was selected for the job.

In February 2010, Plaintiff filed a formal Equal Employment Opportunity (“EEO”) Complaint in which she alleged that her non-selection for the 2009 position was discriminatorily motivated. In the EEO Complaint, Plaintiff described her non-selection, including how she had previously been offered the 2008 Position before it was later canceled and re-advertised. The VA’s Office of Resolution Management (“ORM”) informed her that any non-selection claim that she sought to assert relating to the 2008 Vacancy must be dismissed as untimely s, and that it would look only at the 2009 incident.

However, despite the dismissal, both the EEO investigator and the Plaintiff viewed the facts surrounding the 2008 Vacancy to be relevant to her non-selection claim for the 2009 Vacancy. Counsel for the VA, however, refused to address or provide the discovery that Ms. Vasser requested because ORM had dismissed her 2008 Vacancy claim as untimely. The VA’s counsel suggested that the discovery was irrelevant and immaterial to the subject claim.

When Plaintiff filed her action in this Court, the Complaint contained allegations of discrimination and retaliation stemming from her non-selection for ten separate vacancies,  including the 2008 and 2009 job vacancies. Upon hearing argument from counsel regarding discovery disputes, the Court ordered that the VA produce the documents requested by Plaintiff. However, rather than produce documents, the VA supplied Plaintiff with a declaration from a human resources representative stating that she was unable to locate any documents other than the vacancy announcement and that, under the VA’s Record Control Schedule, any documents relating to that vacancy were previously destroyed. A later deposition of that representative revealed that this destruction would have happened in January 2011.

On April 18, 2017, Plaintiff filed a motion for spoliation sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure, requesting adverse findings of fact, appropriate inferences related to this evidence and, if appropriate, a missing evidence jury instruction and attorney fees.

In making its determination, the Court considered that a party has a duty to preserve potentially relevant evidence whenever litigation is reasonably foreseeable. A party that fails to preserve evidence ‘runs the risk of being justly accused of spoliation’—defined as ‘the destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation’—and find itself the subject of sanctions. The sanctions available for the destruction of evidence with notice of their potential usefulness in litigation may include the assessment of fines or attorneys’ fees and costs, the preclusion of certain lines of argument that might have been advanced by the culpable party, and/or the issuance of an instruction informing jurors that they may draw an adverse inference from the spoliator’s actions.

The Court determined that Plaintiff made a sufficient showing that at least some documents other than those already produced existed at the time of destruction. Although relatively thin, the Court was persuaded that there was enough evidence on the record that persons other than Plaintiff also applied to the 2008 Vacancy.

Having concluded that Plaintiff has adequately shown that the file contained at least applications of other candidates for the 2008 Vacancy, the Court is also persuaded that the VA had a duty to preserve those documents in connection with this litigation. The Court is also persuaded that the documents were destroyed with the requisite culpable state of mind. The VA knew or should have known that these documents were relevant to Plaintiff’s claims at the time the VA voluntarily destroyed them and thus that decision was at least negligent. In fact, the VA not only knew or should have known that these documents were relevant, it knew the Plaintiff had requested them (and has done so at every stage of this litigation), yet it failed to preserve them.

The Court concluded that Plaintiff adequately demonstrated that the VA negligently destroyed documents relating to Vacancy Announcement, which a reasonable jury could conclude would have (1) supported Plaintiff’s claims, and (2) that this destruction occurred at a time when litigation was reasonably foreseeable and (3) the VA was under an obligation to preserve relevant documents. Under these circumstances, the Court ruled that the appropriate remedy was to issue a missing evidence instruction to the jury.

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