Doe v. Cisco Systems Inc.

Filing 137

OPINION & ORDER: the Court OVERRULES Defendant's objection and ADOPTS the R&R as the decision of this Court. As set forth herein and in the R&R, the Court GRANTS in part and DENIES in part Plaintiff's Motion for Spoliation Sanctions 89 a nd GRANTS in part and DENIES in part Defendant Cisco Systems, Inc.'s Motion for Summary Judgment 85 . The summary judgment motion is DENIED as to Plaintiff's ADA retaliation claim but is GRANTED as to her remaining claims. As for Plaintiff 's Motion for Spoliation Sanctions, Plaintiff's request that Defendant's answer be stricken or that adverse inferences be imposed is DENIED. However, the Court has given only limited consideration to the testimony of Webster and Barl ow concerning the elimination of Plaintiff's position as part of the 2016 Restructuring, and the parties will be allowed to present evidence and argument at trial regarding Defendant's failure to preserve the organizational design document s and budget and guidelines for the SPM Group during the 2016 Restructuring, and the jury will be instructed it may consider that evidence along with all of the other evidence in the case in making its decision. Signed by Judge Clarence Cooper on 11/30/20. (bjh)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

DEE DEE ATTA,
Plaintiff,
vs.
CISCO SYSTEMS, INC.,
Defendant.

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CIVIL ACTION NO.
1:18-CV-1558-CC

OPINION AND ORDER
Plaintiff Dee Dee Atta (“Plaintiff”) commenced this employment
discrimination action under the Americans with Disabilities Act (the “ADA”), the
Equal Pay Act (the “EPA”), and Title VII of the Civil Rights Act (“Title VII”). The
case is presently before the Court on the Final Report and Recommendation (the
“R&R”) [Doc. No. 126] issued by Magistrate Judge John K. Larkins III on August
3, 2020.

Magistrate Judge Larkins recommends that Plaintiff’s Motion for

Spoliation Sanctions [Doc. No. 89] be granted in part and denied in part and that
Defendant Cisco Systems, Inc.’s Motion for Summary Judgment [Doc. No. 85] be
granted in part and denied in part.
With respect to the Motion for Spoliation Sanctions, Magistrate Judge
Larkins recommends that the Court grant Plaintiff’s request for spoliation
sanctions but deny her specific request that Defendant’s answer be stricken or that

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adverse inferences be imposed. Magistrate Judge Larkins instead recommends
that the Court impose the following sanctions for Defendant’s failure to preserve
organizational design documents and budget and guidelines for the Service
Provider Marketing Group (“SPM Group”) during the August 2016 limited
restructuring of Defendant’s Marketing Department (the “Restructuring”):
(1) Doug Webster’s and Robert Barlow’s testimony concerning the
elimination of Plaintiff’s position as part of the 2016 Restructuring not be
considered in support of Defendant’s arguments for summary judgment;
and
(2) The parties be allowed to present evidence and argument at trial
regarding Defendant’s failure to preserve the documents, and the jury be
instructed that it may consider that evidence along with all of the other
evidence in the case in making its decision.
Magistrate Judge Larkins recommends that Defendant’s Motion for Summary
Judgment be denied as to Plaintiff’s ADA retaliation claim but granted as to
Plaintiff’s remaining claims.
On August 17, 2020, Defendant timely filed an objection to the R&R. (Doc.
No. 129.)

Defendant maintains that Magistrate Judge Larkins erred in

recommending that the Court grant, in part, Plaintiff’s Motion for Spoliation
Sanctions. Defendant further maintains that Magistrate Judge Larkins erred in
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recommending that Defendant’s summary judgment motion be denied as to
Plaintiff’s ADA retaliation claim. Plaintiff has responded to Defendant’s objection,
urging that the Court should adopt the R&R and schedule the case for trial. (Doc.
No. 134.)
After reviewing a magistrate judge’s findings and recommendations
submitted pursuant to 28 U.S.C. § 636(b)(1)(B), a district judge may accept, reject,
or modify the findings or recommendations. 28 U.S.C. § 636(b)(1). A party
challenging a report and recommendation must “file . . . written objections which
shall specifically identify the portions of the proposed findings and
recommendation to which objection is made and the specific basis for objection.”
Macort v. Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (citation and internal
quotation marks omitted); see also Fed. R. Civ. P. 72(b)(2). A district judge “shall
make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Jeffrey S. v.
State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (citation omitted). The
district judge must “give fresh consideration to those issues to which specific
objection has been made by a party.” Id. “Frivolous, conclusive, or general
objections need not be considered by the district court.” Marsden v. Moore, 847
F.2d 1536, 1548 (11th Cir. 1988) (citation omitted). Those portions of a report and

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recommendation to which an objection has not been made are reviewed for plain
error. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
Having conducted a de novo review of those portions of the R&R to which
Defendant specifically objects, the Court finds that Defendant’s objections are
without merit. As to Plaintiff’s Motion for Spoliation Sanctions, Magistrate Judge
Larkins correctly determined that Defendant had an obligation but failed to take
reasonable steps to preserve organizational design documents and budget and
guidelines for the SPM Group, which were directly relevant to the 2016
Restructuring that resulted in the termination of Plaintiff’s employment. The
evidence of record indicates that these documents existed at the time Defendant
should have anticipated litigation and at least one page of the documents existed
the day prior to Doug Webster’s deposition, according to Webster’s
uncontradicted testimony.1 Magistrate Judge Larkins soundly concluded that
Plaintiff has been prejudiced in her ability to fully address the assertions of Doug
Webster and Robert Barlow that Plaintiff’s position was in fact eliminated as part
of the Restructuring and that she was not terminated solely as a result of Barlow’s
assessment of her. Significantly, Federal Rule of Civil Procedure 37(e)(1), pursuant
to which Magistrate Judge Larkins recommends that limited sanctions be
imposed, only requires a showing of prejudice to the moving party, not bad faith

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 Defense counsel’s unverified contentions to the contrary are not evidence.

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by the spoliator. See Storey v. Effingham Cty., No. CV415-149, 2017 WL 2623775,
at *4-5 (S.D. Ga. June 16, 2017) (holding that limited sanctions were appropriate,
pursuant to Rule 37(e)(1), to redress prejudice resulting from defendants’ careless
failure to preserve video evidence); see also Bistrian v. Levi, 448 F.Supp.3d 454,
477 n.90 (E.D. Pa. 2020) (rejecting suggestions that Rule 37(e)(1) requires showing
of bad faith to establish prejudice). Carelessness or negligence by the spoliator is
sufficient, when coupled with prejudice, to warrant the imposition of sanctions.
See Storey, 2017 WL 2623775, at *4-5. Finally, the sanctions recommended by
Magistrate Judge Larkins are no greater than necessary to cure the prejudice. As
such, the Court agrees with the recommended disposition of Plaintiff’s Motion for
Spoliation Sanctions.
Next, the Court’s review of the parties’ summary judgment filings and
evidence informs that Defendant is not entitled to summary judgment on
Plaintiff’s ADA retaliation claim. Defendant maintains that Plaintiff cannot make
out a prima facie case of retaliation under the ADA because she cannot establish a
causal connection between Plaintiff’s protected activity and her termination. The
Court disagrees.

While Defendant argued before the Magistrate Judge and

continues to argue that temporal proximity should be measured from the time that
Plaintiff began requesting a reduction in her workload in the second half of 2015
or, at the latest, when Plaintiff formally requested an accommodation in April
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2016, Magistrate Judge Larkins correctly reasoned that “the more appropriate date
to locate the beginning of the temporal period is sometime between May 31, 2016,
when Plaintiff met with Richardson and Barlow to negotiate the proposed
accommodations, and June 29, 2016, when Plaintiff finalized the documentation
for approval of her request.” (R&R at 72.) Using the later date, which is when
Plaintiff would have provided all of the necessary information and when
Defendant would have been in a position to approve Plaintiff’s request, the time
between Plaintiff’s protected activity and her termination was seven weeks, which
typically is close enough to establish a causal connection. Singleton v. Pub. Health
Tr. of Miami-Dade Cty., 725 F. App’x 736, 738 (11th Cir. 2018) (citations omitted).
Magistrate Judge Larkins additionally cited authority holding that complaints
about the inadequacy of accommodations also qualify as protected expression and
noted that Plaintiff complained about her accommodations as late as August 8,
2016, which was approximately a week before her termination. Whether the Court
relies on this date or the date that Plaintiff finalized her documentation, the close
temporal proximity between Defendant’s awareness of each protected activity and
Plaintiff’s termination is sufficient to create a factual issue with respect to
causation.
The Court also finds no error with respect to Magistrate Judge Larkins’s
analysis of the additional evidence supporting a finding of causation and the
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evidence creating an issue of fact as to whether Plaintiff’s inclusion in the 2016
Restructuring was pretextual. The Court has given all of this evidence fresh
consideration and agrees that the evidence warrants denial of summary judgment
as to the ADA retaliation claim. The Court appreciates that Defendant has a
different view of this evidence, but “[t]he evidence of the non-movant is to be
believed [at the summary judgment stage], and all justifiable inferences are to be
drawn in [the non-movant’s] favor.” Anderson v. Liberty Lobby, 477 U.S. 242, 255,
106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). The Court cannot, as Defendant suggests,
simply reject Plaintiff’s testimony. The ADA retaliation claim must proceed to
trial, and the parties will have an opportunity to present their evidence and make
arguments before a jury.
Accordingly, the Court OVERRULES Defendant’s objection and ADOPTS
the R&R as the decision of this Court. As set forth herein and in the R&R, the
Court GRANTS in part and DENIES in part Plaintiff’s Motion for Spoliation
Sanctions [Doc. No. 89] and GRANTS in part and DENIES in part Defendant
Cisco Systems, Inc.’s Motion for Summary Judgment [Doc. No. 85]. The summary
judgment motion is DENIED as to Plaintiff’s ADA retaliation claim but is
GRANTED as to her remaining claims. As for Plaintiff’s Motion for Spoliation
Sanctions, Plaintiff’s request that Defendant’s answer be stricken or that adverse
inferences be imposed is DENIED. However, the Court has given only limited
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consideration to the testimony of Webster and Barlow concerning the elimination
of Plaintiff’s position as part of the 2016 Restructuring, and the parties will be
allowed to present evidence and argument at trial regarding Defendant’s failure
to preserve the organizational design documents and budget and guidelines for
the SPM Group during the 2016 Restructuring, and the jury will be instructed it
may consider that evidence along with all of the other evidence in the case in
making its decision.
SO ORDERED this 30th day of November, 2020.
s/ CLARENCE COOPER
CLARENCE COOPER
SENIOR UNITED STATES DISTRICT JUDGE 

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