Equal Employment Opportunity Commission v. Dillon Companies, Inc.
ORDER. Order granting 127 Motion for Sanctions for Spoliation of Evidence. Order granting in part and denied in part 128 Motion in Limine by Judge R. Brooke Jackson on 11/21/11.(jjh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable R. Brooke Jackson
Civil Action No. 09-CV-02237-RBJ-MEH
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
DILLON COMPANIES, INC.,
This order addresses plaintiff’s motion for sanctions for spoliation of evidence [docket
#127] and defendant’s first motion in limine [docket #128]. The Court has considered the
motions, responses and replies.
Motion for Sanctions for Spoliation of Evidence by Plaintiff
A developmentally disabled employee (“Mr. Stringer”) of King Soopers was discharged
in June of 2006. Amended Complaint at 11, 24. Plaintiff alleges it was for discriminatory
reasons under the Americans with Disabilities Act; defendant contends it was based on a
violation of company policy. The incident which led Mr. Stringer to be suspended and
eventually terminated occurred at King Soopers store #31 in Lakewood, CO. Id. at 30. The
incident involved Mr. Stringer and Ms. Sedillos, his supervisor; no other witnesses were present.
Id. at 22-23.
The majority of the specific facts contained herein are taken from the parties’ respective pleadings.
The area in which the incident occurred was and is under constant video surveillance,
because that is where the store safe is located. Doc. 127-8. The incident was recorded. Three
copies of the tape were produced, and a master-copy was created when the security guard, Mr.
Valdez, “popped out the erasure-prevention tabs” on the tape to prevent anyone from taping over
the VHS tape.” Doc. 127-8. When he was asked to make a fourth copy he found that someone
had placed adhesive tape over the tabs enabling the tape to be copied over, allegedly in violation
of company policy. Id. Subsequently, defendant has not produced any of the three copies that
were made and claims they were lost. Doc. 127-3, 3:1-3.
The videotape depicted an incident where Mr. Stringer approached Ms. Sedillos while
she was on the phone in an area called “the booth.” Amended Complaint at 23. Normally, Mr.
Stringer would not be permitted into the booth. Doc. 127-7, 3:9-11. The facts of the actual
incident are disputed. The defendant alleges that Mr. Stringer approached the booth, knocked on
the door and when the door opened he forced his way in by pushing Ms. Sedillos and then hung
up the phone and/or repeatedly grabbed the phone out of her hand to hang it up. Plaintiff alleges
that after being harassed repeatedly throughout the day and on previous occasions, Mr. Stringer
went to the booth to ensure Ms. Sedillos did not call his mother, one of the alleged threats made
against him. Amended Complaint at 23. He saw Ms. Sedillos on the telephone and assumed his
mother was on the other end. Doc. 127-7, 3:16-21. He claims to have moved past Ms. Sedillos
in an attempt to hang up the phone and in so doing, to have bumped Ms. Sedillos with his
shoulder. Doc. 127-7.
The defendant claims Mr. Stringer was fired because his physical contact with Ms.
Sedillos violated the company’s policy against violence. Plaintiff claims that under its theory of
the event the contact was no more severe than a number of other instances where the person
initiating contact did not have their employment terminated. This is a fact question, and
although this is not a motion for summary judgment, it is important.
Defendant intends to introduce evidence of what happened through witnesses –
employees of the defendant – who watched the video recording before it was lost or destroyed.
These witnesses have a different account of the incident than is reflected in Ms. Sedillos’ written
account. Doc. 130-8, 2. There was also some dispute about whether Ms. Sedillos was available
to testify or if her location was even known to the parties. The defendant has since stated that
she has been located but not whether she will be available to testify.
Plaintiff moves for sanctions in two forms: 1) a prohibition against defense witnesses
testifying to what they saw on the videotape; and 2) an adverse inference instruction.
“‘Spoliation is the destruction or significant alteration of evidence, or failure to preserve
property for another's use as evidence in pending or reasonably foreseeable litigation.’”
Blangsted v. Snowmass–Wildcat Fire Prot. Dist., 642 F.Supp.2d 1250, 1259–60 (D. Colo. 2009)
(quoting Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 457 (2nd Cir.
2007)). A court has both inherent power as well as authority under Fed. R. Civ. P. 37(b)(2) to
sanction a litigant for the destruction or loss of evidence. See Chambers v. NASCO, Inc., 501
U.S. 32, 43–45 (1991); Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408 (10th Cir. 1997).
The Court must first determine whether the evidence “would be relevant to an issue at
trial.” Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 621 (D. Colo.
2007). If so, sanctions are appropriate when (1) a party had a duty to preserve the evidence
because it knew, or should have known, that litigation was imminent, and (2) the other party was
prejudiced by the destruction of the evidence. Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136,
1149 (10th Cir. 2009). As a general rule, the “bad faith destruction of a document relevant to
proof of an issue at trial gives rise to an inference that production of the document would have
been unfavorable to the party responsible for its destruction.” Aramburu v. Boeing Co., 112 F.3d
1398, 1407 (10th Cir. 1997).
The duty to preserve is triggered by commencement of litigation or where a defendant
reasonably anticipates litigation involving the evidence. Cache La Poudre, 244 F.R.D. at 621.
In this case, the defendant makes no argument regarding its duty to preserve the evidence. In
fact, it could not make such an argument in light of the number of copies that were made and the
creation of a master copy to prevent the videotape from being taped over. Instead, defendant
focuses its argument on an alleged lack of prejudice to plaintiff.
With regard to prejudice, “[t]he burden is on the aggrieved party to establish a reasonable
possibility, based on concrete evidence rather than a fertile imagination that access to the lost
material would have produced evidence favorable to his cause.” Gates Rubber Co. v. Bando
Chem. Indus., Ltd., 167 F.R.D. 90, 104 (D. Colo. 1996). Defendant argues there is no prejudice
because there is no material dispute about what happened in the booth. Defendant alleges that
the transcript from Mr. Stringer’s deposition [Doc. 130-12], proves that he pushed his way into
the booth, pushing Ms. Sedillos back while grabbing the phone out of her hands and hanging it
up. That is not how the Court reads the transcript. First, the deponent is recognized to have a
developmental disability, and second, the defendant’s attorney continually used the term “push”
in his questions. See Doc. 130-12. Despite that, Mr. Stringer consistently used the term “bump”
and said he did so only once.2 Id. Mr. Stringer also demonstrated what he did by motioning with
his shoulder. Doc. 127-7: 4:21-25.
The Court recognizes that Mr. Stringer did use the term “push” on at least one occasion where prompted by
defense counsel, but he quickly corrected himself by saying he “bumped” Ms. Sedillos.
The incident in the booth was apparently the sole explanation for Mr. Stringer’s
termination. The defense is greatly benefited from the absence of a videotape, particularly where
it intends to introduce the contents of the video through testimony of its employees who watched
the video. There can be no doubt that the flipside of that equation is that plaintiff is necessarily
prejudiced by its inability to examine the tape to support Mr. Stringer’s version of the events or
to counter the testimony of defendant’s witnesses. Even assuming the video shows Mr. Stringer
technically violating the company violence policy, the exact manner in which he did so is
important in light of plaintiff’s argument that in the past specific types of contact or violence
have not resulted in employee termination. If this is true, it would lend further support to the
claim that plaintiff’s discharge was motivated by discriminatory animus.
The next question is whether defendant’s inability to produce a copy of the video, taping
over the master-copy and allowing the DVR recording to expire amount to bad faith. The
defendant clearly recognized the need to maintain a copy of the videotape; that is the reason –
allegedly per company policy – that a master-copy was created. Only specific persons had
access to the master-copy, and one of them intentionally created a work-around to allow the
master to be taped over, again in violation of company policy. This alone indicates bad faith.
Additionally, the contradictory deposition testimony of the various managers, supervisors and
corporate personnel regarding who had the tapes and when leads the Court to believe that the
defendant is hiding the ball. This is exactly the type of case where sanctions for spoliation of
evidence are appropriate. What those sanctions should be is the final question.
Because the Court found that the defendant acted in bad faith in losing or destroying the
three copies and master-copy of the videotape, and allowing the DVR recording to expire, the
Court will order an adverse inference instruction. The Court will instruct the jury that it should
assume that the production of the document would have been unfavorable to the defendant, the
party responsible for its destruction. Aramburu v. Boeing Co., 112 F.3d at 1407. Additionally,
the Court will not permit the defendant to present testimony by its employees, other than Ms.
Sedillos, regarding what the videotape is alleged to have shown. This would negate the force of
the adverse inference instruction.
Defendant’s First Motion in Limine
Defendant moves to exclude any evidence of alleged harassment of Mr. Stringer as
irrelevant and inadmissible pursuant to Fed. R. Evid. 402 and 403. It also moves to exclude
testimony from John Bowen, Angela Bickford or Michael Yen, because they were not disclosed
during the discovery period. Finally, Defendant seeks a ruling that any evidence of
discrimination charges filed by other employees is inadmissible at trial pursuant to Fed. R. Evid.
402, 403 and 404.
Evidence of Alleged Harassment
Defendant argues that because plaintiff’s claim based on harassment was dismissed on
summary judgment, any introduction of such evidence would be irrelevant and inadmissible
pursuant to Fed. R. Evid. 402 and 403. Further, defendant argues that to the extent the evidence
is admissible its probative value is substantially outweighed by the danger of unfair prejudice
and confusion of the issues which could mislead the jury. Fed. R. Evid. 403. Defendant cites
Waters v. Genesis Health Ventures, Inc., 400 F.Supp.2d 808 (E.D.Pa. 2005). There, the court
found that a plaintiff may not use evidence of one type of discrimination to prove discrimination
of another type.” Id. at 813-14. That is not the case here. Plaintiff intends to introduce previous
acts of the same type of discrimination to establish intent. Defendant further relies on Ford v.
Nationwide Mut. Ins. Co., 214 F.Supp.2d 11, 14-15 (D. Me. 2002) for the proposition that
sympathy inducing evidence should be limited. However, the Ford court’s ruling to exclude the
evidence in question was made in the liability portion of a bifurcated trial, meaning the evidence
was wholly irrelevant to the issue of liability. Id. at 14-16. This makes the Ford opinion
inapposite for our purposes.
Plaintiff argues, and the Court agrees, that evidence of harassment goes directly to
plaintiff’s claim regarding defendant’s intent in terminating Mr. Stringer’s employment, thus
making the evidence relevant. The motive behind plaintiff’s termination is central to the case at
hand. While introduction of such evidence would necessarily prejudice defendant, that prejudice
is not unfair and, in any event, does not substantially outweigh its probative value. The burden
in this case is on plaintiff to establish by a preponderance of the evidence that defendant’s
termination action was motivated by improper animus. Excluding evidence that reasonably
could lead the ultimate finder of fact to conclude the discharge was based on discriminatory
animus would thus be improper. See Warren v. Halstead Industries, Inc., 802 F.2d 746, 753 (4th
Cir. 1986). Additionally, if Mr. Stringer’s actions were provoked by his employer, the employer
cannot use the employee’s response as justification for termination and yet remain impervious to
claims based on the alleged discriminatory conduct. Bosley v. Excel, 165 F.3d 635, 639 (8th Cir.
1999); See Hertz v. Luzenac America, Inc., 370 F.3d 1014, 1022 (10th Cir. 2004).
Testimony of John Bowen, Angela Bickford and Michael Yen
Plaintiff lists these three individuals as witnesses in its Pretrial Order despite not
disclosing them during discovery pursuant to Rule 26(a)(1). However, plaintiff cites the
advisory committee's note to 1993 Amendments to Fed. R. Civ. P. 26(e)(1) which states, “there
is, however, no obligation to provide supplemental or corrective information . . . when a witness
not previously disclosed is identified during the taking of a deposition.” Id. Reading the
advisory notes in conjunction with Fed. R. Civ. P. 26(e)(1)(A) which requires supplemental
disclosures “if the additional or corrective information has not otherwise been made known to
the other parties during the discovery process or in writing,” the Court agrees with plaintiff that
there has been no discovery violation, and that these witnesses can testify.
Evidence of Other Charges of Discrimination
Defendant argues that these other charges are irrelevant and therefore inadmissible under
Fed. R. Evid. 402. It claims they have no connection to Mr. Stringer or his case. Mendelsohn v.
Sprint/United Mgmt. CO., 402 Fed. Appx. 337, 341-42 (10th Cir. 2010). Next, defendant argues
that the evidence is inadmissible pursuant to Rule 404(b). Without a link between this evidence
and Mr. Stringer’s termination and/or case, the evidence is inadmissible. Schneider v. City and
County of Denver, 47 Fed. Appx. 517, 526 (10th Cir. 2002). Finally, defendant alleges that to
the extent this evidence is relevant it should be excluded under Fed. R. Evid. 403 because the
probative value is substantially outweighed by the danger of unfair prejudice and confusion of
the issues. Defendant contends that admission of this evidence will potentially taint the jury and
require a mini-trial on the facts of these other cases.
The Tenth Circuit has previously stated that “[a]s a general rule, the testimony of other
employees about their treatment by the defendant is relevant to the issue of the employer's
discriminatory intent.” Spulak v. KMart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990). Plaintiff
argues that “the sheer number of complaints of disability discrimination is relevant to show a
pattern and/or culture of discriminatory conduct.” McDonnell Douglas v. Green, 411 U.S. 792,
804-05 (1973). Michael Yen’s complaint is directly relevant because he complained of similar
treatment by Ms. Scott, a manager also involved in Mr. Stringer’s incident.
Ultimately, the Court agrees with plaintiff that it is more appropriate to wait until trial to
determine whether each individual charge is relevant. I further agree that the evidence may be
admissible under Fed. R. Evid. 404(b) to prove motive and intent instead of showing that the
defendant acted in conformity with prior acts. Fed. R. Evid. 404(b). The Court declines to rule
on this issue in limine.
Plaintiff’s motion for sanctions for spoliation of evidence [#127] is granted. Defendant’s
motion in limine [#128] is granted in part and denied in part. It is granted to the extent that it
asks the Court to address the first two issues (evidence of alleged harassment, testimony of three
witnesses) in limine. However, it is denied to the extent that it seeks to exclude evidence in
those two categories. The motion to address the third issue in limine (evidence of other charges
of discrimination) is denied.
DATED this 21st day of November, 2011.
BY THE COURT:
R. Brooke Jackson
United States District Judge