BLAND v. SAM'S EAST INC et al
Filing
64
ORDER granting 36 Motion for Sanctions; granting 54 Motion in Limine; granting 55 Motion in Limine; granting 56 Motion in Limine; denying 57 Motion in Limine; deferring until trial 58 Motion in Limine; and deferring until trial 59 Motion in Limine. Ordered by US DISTRICT JUDGE CLAY D. LAND on 1/31/2019 (tlf).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
JOSHUA BLAND,
*
Plaintiff,
*
vs.
*
SAM’S EAST, INC., et al.,
*
Defendant.
CASE NO. 4:17-CV-190 (CDL)
*
O R D E R
This
Order
addresses
Plaintiff
Joshua
Bland’s
motion
regarding Defendants’ alleged spoliation of evidence and various
motions in limine that the Court ruled upon at the pretrial
conference.
This is a retaliation case.
Bland is a white male who was
formerly employed as a tire technician at Sam’s Club.
Before his
termination, Bland argued with coworker Edgar Cornell Robinson, a
black male.
Bland claims Robinson called him a “dumb, redneck,
hillbilly, white boy.”
Management heard about the argument and
asked all the tire technicians to provide written statements about
the incident.
Bland reported Robinson’s comment in his statement
and complained that it was racially discriminatory.
Bland’s
supervisor, Walter Capozucca, addressed all the tire technicians
and told them to work together.
Capozucca took no action against
Robinson for his comment to Bland.
1
Several days later, Bland reported to work and told Capozucca
that he was scheduled to open the shop with Robinson.
complained
Robinson.
to
Capozucca
that
he
had
taken
no
action
Bland
against
Bland commented that if he had used the “N word” toward
Robinson, Capozucca would have fired him immediately.
Bland
therefore complained about what he believed to be a disciplinary
double standard based on race.
Capozucca then told Bland to clock
out and go home. Bland later learned that Capozucca had terminated
him.
Bland returned to the store to try to speak to the store
manager, but she refused to see him.
Bland then called the Sam’s
ethics hotline and reported that although he had complained about
Robinson’s
conduct,
nothing
had
been
done
and
he
had
been
terminated.
Sam’s claims it terminated Bland’s employment in part because
of conduct he displayed in front of Capozucca.
Cameras recorded
video, but not audio, of Bland’s dispute with Robinson and of the
interaction between Bland and Capozucca. Sam’s destroyed the video
footage pursuant to its record retention policy 60 days after the
incidents.
Bland sued Sam’s for discriminatory termination and
retaliation.
The
Court
granted
summary
judgment
on
Bland’s
discriminatory termination claim but denied summary judgment on
his retaliation claim.
Bland
moved
for
sanctions
(ECF
No.
36)
based
on
Sam’s
destruction and failure to preserve the video footage and Sam’s
2
failure to produce the written statement of Bland’s coworker and
fellow
tire
technician
Ricky
Darden. 1
Bland
seeks
a
jury
instruction authorizing the jury to draw an adverse inference due
to the spoliation of the evidence.
The Court granted Bland’s
motion at the pretrial conference as more fully explained in the
remainder of this Order.
The Court also made oral rulings on the
parties’ various motions in limine which are documented in this
Order.
DISCUSSION
I.
Bland’s Motion for Sanctions
A.
Legal Standard
The Court considers the following factors in determining
whether
to
issue
sanctions
for
spoliation
of
evidence:
“(1) whether the party seeking sanctions was prejudiced as a result
of the destruction of evidence and whether any prejudice could be
cured, (2) the practical importance of the evidence, (3) whether
the spoliating party acted in bad faith, and (4) the potential for
abuse if sanctions are not imposed.”
ML Healthcare Servs., LLC v.
Publix Super Mkts., Inc., 881 F.3d 1293, 1307 (11th Cir. 2018).
For the third factor, Bland need not show malice to establish Sam’s
bad faith.
Flury v. Daimler Chrysler Corp., 427 F.3d 939, 946
1
Bland also moved for sanctions based on Sam’s failure to produce the
written statement of coworker Marcel Piett.
Bland did not mention
Piett’s statement until his reply brief, so that argument is not properly
before the Court. See Najjar v. Ashcroft, 257 F.3d 1262, 1283 n.12 (11th
Cir. 2001).
3
(11th Cir. 2005). Instead, to determine whether a spoliating party
acted in bad faith, the Court weighs “the degree of the spoliator’s
culpability against the prejudice to the opposing party.”
B.
Id. 2
Discussion
Sam’s sets forth the following arguments opposing sanctions:
(1) the Darden statement does not exist; (2) Sam’s was under no
duty to preserve until July 7, 2017, when Bland filed his EEOC
charge; (3) even if Sam’s had a duty to preserve, it did not extend
to the video footage because the footage had no audio; (4) Bland
is not prejudiced by the destruction of the evidence; and (5) Sam’s
did not act in bad faith.
The Court addresses these arguments in
turn.
1.
Ricky Darden’s Statement
First, Sam’s contends Bland failed to carry his burden to
show that the Darden statement actually existed.
Darden clearly
testified that he provided a written statement to Mary Gill, a
Sam’s employee.
Darden Dep 18:12-17, ECF No. 27.
Rebecca McCoy,
the tire technician team leader, clearly testified that Capozucca
told her to collect statements, that she collected a statement
2
Federal Rule of Civil Procedure 37(e) governs a party’s failure to
preserve electronically stored information and arguably applies in this
circumstance. The Eleventh Circuit has not decided whether Rule 37(e)
displaces the traditional sanctions analysis. See ML Healthcare Servs.,
881 F.3d at 1308 (concluding that district court did not abuse its
discretion by denying plaintiff’s motion for sanctions under either
analysis). The Court concludes for the same reasons as explained below
that an adverse inference is likewise appropriate under Rule 37(e).
4
from Darden, and that she left Darden’s statement (along with
several others) in Capozucca’s office.
No. 26.
McCoy Dep. 77:7-21, ECF
The Court finds that Bland has carried his burden to show
that Darden’s statement existed at the relevant time.
2.
Sam’s Notice of Litigation
Sam’s next argues that it had no notice of any pending
litigation regarding Bland’s termination until July 7, 2017, when
Bland filed his EEOC charge.
Because July 7 is more than 60 days
after April 24 (date of the Bland-Robinson altercation) and April
26 (date of Bland’s termination), Sam’s contends it had no notice
or duty to preserve the video footage and properly disposed of it
pursuant to their policy.
After Sam’s terminated Bland, Bland returned to the store
several days later to try to speak with the store manager, Madeline
Torres.
When she refused to speak with him, Bland told her she
would hear from his lawyer.
(describing
conversation
Hayes Dep. 12:3-6, ECF No. 38
between
Bland
and
Torres);
see
also
Torres Dep. 40:3, ECF No. 31 (recalling that Bland declined her
request to reschedule the meeting and told her: “[Y]ou’ll hear
from my lawyer.”).
Bland also applied to the Georgia Department
of Labor for unemployment benefits and explained to the state
examiner
that
termination.
he
was
suing
Sam’s
in
federal
court
over
his
See Email from J. Bland to V. Wilberd (June 2, 2017),
ECF No. 35-26.
The Department of Labor approved Bland’s request
5
for
benefits,
and
Torres
decided
to
appeal
that
decision,
presumably having read Bland’s rebuttal to the state examiner
describing his prospective federal lawsuit.
See Cooper Dep. 20:5-
12, ECF No. 34 (explaining that Torres made the decision to
appeal); Letter from T. Freeman to Ga. Dep’t of Labor (June 21,
2017), ECF No. 34-6 (appealing the decision two weeks before Bland
filed his EEOC charge and within 60 days of the April 24 and 26
incidents).
It is also undisputed that Sam’s investigated Bland’s
claim of discriminatory termination prior to its destruction of
the video footage.
That investigation included a review of the
video footage, which Sam’s claims corroborated its position and
contradicted Bland’s version of the events.
Under these circumstances, Sam’s should have been alerted to
the prospect of litigation involving Bland’s termination well
within the 60-day period, and it should have understood that the
video footage contained relevant evidence.
a duty to preserve relevant evidence.
Therefore, Sam’s had
Sam’s even recognized this
duty in response to Bland’s hotline complaint when it instructed
Marshall Bacote, a Sam’s employee tasked with investigating the
complaint, to “obtain witnessing manager notes and statements, and
review documents/video” and to “[k]eep these documents in a secure
location, like a locked filing cabinet in the managers’ office.”
Email from F. Cizerle to M. Bacote (May 4, 2017), ECF No. 32-4.
6
Accordingly, the Court rejects Sam’s argument resisting sanctions
on this ground.
3.
Scope of Sam’s Duty to Preserve
Sam’s further argues that even if it had a duty to preserve,
that duty did not extend to the video footage because it lacked
audio and was therefore irrelevant to Bland’s complaints.
The
Court finds this argument unpersuasive. While the absence of audio
may have made the video footage irrelevant as to what was said, it
still could have been relevant as to how the parties physically
interacted.
plainly
Accordingly, video footage of these two events is
relevant
particularly
to
since
his
Sam’s
claims,
has
even
attempted
if
to
it
lacked
justify
termination based on his behavior toward Capozucca.
audio,
Bland’s
Sam’s had a
duty to preserve it.
4.
Prejudice to Bland
Sam’s next contends Bland is not prejudiced by destruction of
the evidence.
Bland’s side of the story is that Robinson was the
aggressor in their dispute, that Robinson used “redneck” in a
racially derogatory way, that Bland complained about it, that
Capozucca did nothing about it, that Bland calmly pointed out the
alleged disciplinary double standard employed by Capozucca, and
that Capozucca immediately terminated him.
If Darden’s statement
and video footage were available, Bland could point to it at trial
to support his side of the story.
7
But because it is not, Bland
must simply hope the jury takes his word for it.
Further, Sam’s
asserts that it terminated Bland based on what he said during his
interaction with Capozucca.
But Bland’s testimony is that he did
not curse or raise his voice in any way when speaking to Capozucca.
If the video were to corroborate his version of events regarding
physical behavior, it would likewise cast doubt on Capozucca’s
testimony about what was said during the conversation. And Bland’s
opportunity to depose self-interested Sam’s employees about the
incident
does
not
cure
the
prejudice.
The
Court
therefore
concludes that because Bland is unable to use the missing evidence
to bolster his testimony or undermine Capozucca’s testimony, he
has
demonstrated
sufficient
prejudice
to
merit
an
adverse
inference instruction.
5.
Sam’s Bad Faith
Finally, Sam’s argues Bland failed to point to evidence of
bad faith.
As explained above, to determine whether a spoliating
party acted in bad faith, the Court weighs “the degree of the
spoliator’s culpability against the prejudice to the opposing
party.”
Flury, 427 F.3d at 946.
Here, the Court concludes Sam’s
culpability weighs in favor of imposing sanctions.
Sam’s could
have easily saved the Darden statement and video footage.
One of
Sam’s employees actually watched the video footage after Bland’s
8
termination. 3
what
he
And Bland is prejudiced by being unable to point to
alleges
is
corroborating
evidence
of
his
testimony.
Accordingly, the Court concludes that this factor is satisfied.
C.
Balance of Factors
Balancing the factors listed above, the Court concludes that
Bland has carried his burden to show that an adverse inference
instruction regarding the Darden statement, the April 24 video
footage of the Robinson dispute, and the April 26 video footage of
the Capozucca termination is appropriate.
motion
for
sanctions
(ECF
No.
36)
is
Accordingly, Bland’s
granted.
The
adverse
inference instruction shall state as follows:
You have heard evidence that cameras captured video, but
not audio, of Bland’s April 24 interaction with Robinson
and his April 26 interaction with Capozucca. You have
also heard evidence that Bland’s coworker, Ricky Darden,
submitted a written statement about Bland’s April 24
incident with Robinson. The Court previously concluded
Sam’s had a duty to preserve this evidence, but that the
evidence has been destroyed.
In considering this
evidence, you may conclude that the evidence would have
been unfavorable to Sam’s, but you are not required to
do so.
3
The Sam’s employee who viewed the video, asset protection manager Mary
Gill, testified that she would not have fired Bland based on what she
saw on the video, but that she could not say how Capozucca felt. Gill
Dep. 128:20-22, ECF No. 25.
She also testified, however, that if
Capozucca felt intimidated, “then he had every right to do what he did.”
Id. at 128:24-25.
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II.
Motions in Limine
Both parties filed motions in limine, and the Court ruled on
the
motions
at
the
pretrial
conference.
Those
rulings
are
summarized below:
•
Bland’s Motion in Limine (ECF No. 54) – Granted except
to the extent the date Bland filed his EEOC charge is
relevant to the jury’s consideration of Defendants’ duty
to preserve evidence.
•
Sam’s Motion in Limine Regarding Financial Resources
(ECF No. 55) – Granted.
•
Sam’s Motion in Limine Regarding
Employees (ECF No. 56) – Granted.
•
Sam’s Motion in Limine Regarding Evidence of Spoliation
(ECF No. 57) – Denied.
•
Sam’s
Motion
in
Limine
Regarding
Discriminatory
Termination Evidence (ECF No. 58) – Deferred to trial.
•
Sam’s Motion in Limine Regarding Emotional
Damages (ECF No. 59) – Deferred to trial.
Claims
by
Other
Distress
IT IS SO ORDERED, this 31st day of January, 2019.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
10
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