Stewart v. Durham et al
ORDER granting 69 Motion for Sanctions; denying 69 Motion to Dismiss; granting 124 Motion for Summary Judgment; granting 126 Motion for Leave to File Excess Pages. Signed by District Judge Carlton W. Reeves on 9/8/2017. (AC)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ERICA N. STEWART
CAUSE NO. 3:16-CV-744-CWR-LRA
Before the Court are Belhaven University’s motion for sanctions and dismissal, Docket
No. 69, as well as its motion for summary judgment, Docket No. 124.1 The matters are fully
briefed and ready for adjudication.
Factual and Procedural History
In 2015, Erica Stewart sought a job in the Online Admissions Department of Belhaven
University. She knew Tarold Durham, the director of that office, through social channels.
Durham had led her to believe that there would be a vacancy within the Department.
Stewart and Durham then exchanged a series of sexually explicit text messages and
photos. Durham wanted sexual favors in exchange for the job offer, while Stewart kept up
flirtatious banter to try and get the job. When no offer materialized, Stewart filed a charge of
discrimination with the EEOC and subsequently commenced this suit against Belhaven and
Durham. She asserted a variety of claims under Title VII and Mississippi law.
Durham—who was fired from Belhaven for his conduct—maintained that the messages
were flirtatious and consensual. The record bore that out to the extent that there was no evidence
that he had caused Stewart emotional distress. As a result, Durham was dismissed from this case.
See Docket No. 98.
Belhaven’s motion for leave to file excess pages, Docket No. 126, is granted.
Belhaven now seeks sanctions and summary judgment. It contends that Stewart’s case
should be dismissed because she disposed of her cell phone in disregard of her obligation to
preserve relevant evidence. Alternatively, Belhaven seeks summary judgment because there was
no actual job vacancy, Durham was not a supervisor within the meaning of Title VII, and Stewart
did not suffer any emotional distress at Belhaven’s hands, among other reasons.
Sanctions for Destruction of Evidence
“Courts agree that a willful or intentional destruction of evidence to prevent its use in
litigation can justify severe sanctions.” Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp.
2d 598, 618 (S.D. Tex. 2010). “Sanctions for spoliation of evidence may include awarding
attorney fees, deeming certain facts admitted, giving an adverse inference instruction to the jury,
excluding evidence or expert testimony, striking pleadings, entering a default judgment, and
dismissing the case entirely.” Allstate Texas Lloyd’s v. McKinney, 964 F. Supp. 2d 678, 683 (S.D.
Tex. 2013) (quotation marks and citation omitted). Spoliation of evidence may also subject a
party to criminal penalties, contempt sanctions, and disciplinary sanctions. Wallace v. Ford
Motor Co., No. 3:11-CV-567-CWR-FKB, 2013 WL 3288435, at *5 n.1 (S.D. Miss. June 28,
2013). Much like criminal sentencing, an appropriate discovery sanction will take into account
principles of deterrence, restitution, and punishment in proportion to the significance of the
violation. McKinney, 964 F. Supp. 2d at 682-83.
Dismissal with prejudice is an extreme sanction. It is appropriate “only if: (1) there is a
clear record of delay or contumacious conduct by the plaintiff, and (2) lesser sanctions would not
serve the best interests of justice.” Brown v. Oil States Skagit Smatco, 664 F.3d 71, 77 (5th Cir.
2011) (quotation marks and citations omitted). “[I]t is not a party’s negligence—regardless of
how careless, inconsiderate, or understandably exasperating—that makes conduct contumacious;
instead, it is the stubborn resistance to authority which justifies a dismissal with prejudice.”
McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir. 1988) (quotation marks and citation omitted).
Summary judgment is appropriate when “the movant shows that 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). A party seeking to avoid summary judgment must identify admissible evidence in
the record showing a fact dispute. Id. at 56(c)(1). “Once a summary judgment motion is made
and properly supported, the nonmovant must go beyond the pleadings and designate specific
facts in the record showing that there is a genuine issue for trial. Neither ‘conclusory allegations’
nor ‘unsubstantiated assertions’ will satisfy the nonmovant’s burden.” Wallace v. Tex. Tech Univ.,
80 F.3d 1042, 1047 (5th Cir. 1996) (quotation marks and citations omitted).
The Court views the evidence and draws reasonable inferences in the light most favorable
to the nonmovant. Maddox v. Townsend and Sons, Inc., 639 F.3d 214, 216 (5th Cir. 2011). But
the Court will not, “in the absence of any proof, assume that the nonmoving party could or would
prove the necessary facts.” McCallum Highlands, Ltd. v. Wash. Capital Dus, Inc., 66 F.3d 89, 92
(5th Cir. 1995), as revised on denial of reh’g, 70 F.3d 26 (5th Cir. 1995).
This case concerns text messages and photos sent between smartphones. The parties
disagree about what was sent, when it was sent, and why it was sent. That means the parties’
phones were critical evidence. The Federal Rules of Civil Procedure and this Court’s Case
Management Order required the phones to be preserved.
Stewart knew that the texts and photos on her phone were important. The EEOC
investigator intimated that Stewart had not shared all of the relevant communications with the
EEOC. When this suit was commenced, Belhaven’s attorneys immediately sent Stewart’s lawyer
a letter demanding that she “preserve and sequester” her phone. And in spring 2017, as discovery
progressed, Stewart had to sign several documents, under oath, indicating that she still had her
phone and had not deleted or excluded any of its content from the defendants.2
Belhaven was therefore surprised to learn during Stewart’s deposition that the phone had
broken and was no longer in her possession. After repeated inquiries to her counsel over the
following weeks, Belhaven discovered that Stewart had taken her phone to a local AT&T store
and purchased a new phone. She had not kept her old phone.
No independent forensic examination had been conducted before the phone was lost.
Such an examination probably would have hurt Stewart’s case. We know that because testimony
and screenshots now establish that Stewart had indeed failed to share all of the relevant messages
with the EEOC. In her deposition, Stewart could not explain how some of the text messages were
deleted from her phone before they were shared with the EEOC.3
Among these documents is her affidavit which states that she had fully produced all text messages and digital
communications between her and Durham, and that she had not deleted any or allowed anyone to delete any
Stewart’s deposition also contained this gem:
Do you consider any of the things that you said during this conversation between
November 28th and the -- January 2016 to be flirtatious?
Was I flirting with him?
Do you deem any of those messages that you sent to be flirtatious?
I don’t know what -- like flirtatious can be anything, so I don’t know -Q:
What’s your definition of flirtatious?
I don’t know. I mean, I just have -- there’s so many different ones. I don’t think I was
Tell me what your definition is, all of them.
Counsel: I am going to object that she hasn’t been identified as an expert in the meaning of words.
Stewart denies that her conduct is sanctionable. She blames opposing counsel for not
getting stored copies of her text messages from her iCloud account or her new phone. She also
says that opposing counsel failed to try and recover the phone directly from the AT&T store.
Stewart even has the gall to ask the Court to award her attorney’s fees for having to respond to
These arguments are inexcusable. Stewart and her attorney had the duty to preserve her
phone. When they failed to do so, they should have attempted to recover stored messages from
iCloud, the new phone, and the AT&T store. This kind of deflection has no defense.4
When Stewart did search her iCloud, moreover—after her attorney filed this response
memorandum—she identified new, material, and important evidence. That is hardly a sign of
diligence, though; it directly contradicts Stewart’s earlier sworn statements that she had produced
everything to Belhaven.
The Court finds that Stewart’s behavior, from the EEOC investigation to the present,
suggests a pattern of deception. The discovery violation and false statements merit sanctions. Her
attorney’s failure to comply with his discovery obligations under the Rules and Court Orders also
Belhaven argues that Stewart’s conduct warrants dismissal of her case. That is not an
effective sanction because her case fails on the merits. Monetary sanctions are the only option.
The undersigned concludes that the discovery violations in this case merit a $100 fine to
Stewart, which shall be paid to the Clerk of Court, and a $500 attorney’s fee assessment to her
It also is factually incorrect. Defense counsel says that he personally went to the AT&T store in question, spoke
with the manager, and learned that phones turned into AT&T are not traceable and, even if they were able to be
located, are erased twice to delete customers’ personal data.
counsel, which shall be paid to Belhaven’s law firm in partial recompense for the time defense
counsel had to spend on this broken-phone charade.5
Stewart first contends that Belhaven is liable under Title VII for Durham’s arguable sex
discrimination. Under Title VII,
an employer may be vicariously liable for an employee’s unlawful harassment only
when the employer has empowered that employee to take tangible employment
actions against the victim, i.e., to effect a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.
Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013) (quotation marks and citation omitted). A
supervisor’s “ability to exercise significant direction over another’s daily work” is not enough to
make the employer liable under Title VII. Id.
In Morrow v. Kroger, for example, the Fifth Circuit found that an alleged harasser was
not a supervisor under Title VII despite “evidence that [the supervisor] filled out performance
evaluations; handled administrative tasks such as scheduling; boasted at a barbeque at his house
that he could influence who was hired into the meat department; was consulted about hiring
decisions; and may have had a close and friendly relationship with” the hiring authority. 681 F.
App’x 377, 380 (5th Cir. 2017).
The Court takes no joy in imposing sanctions on parties or counsel. Our system of justice requires those with
claims to bring their disputes to a court of law instead of taking measures into their own hands. Courts have a duty to
protect that process. When the process itself has been so defiled, flagrantly abused, or mistreated—as done
throughout this litigation by plaintiff and her counsel—judges must act. We must do so not only to penalize those
whose conduct warrant sanctions but to discourage others from walking down that same treacherous path. This is
not the first time this Court has imposed sanctions. See, e.g., Taylor v. Consolidated Pipe & Supply Co., No. 3:15CV-585-CWR-FKB, 2017 WL 3090317 (S.D. Miss. July 20, 2017) (dismissing case as sanction); Brown v. Asea
Brown Boveria, Inc., No. 3:14-CV-37-CWR-LRA, 2015 WL 7289492 (S.D. Miss. Nov. 16, 2015) (imposing
sanctions against counsel); Brown v. Dow Chem. Co., No. 3:13-CV-359-CWR-FKB, 2015 WL 5785571 (S.D. Miss.
July 9, 2015) (imposing sanctions against pro se plaintiff); Firestone Building Prods. Co. v. Frazier, No. 3:10-CV375-CWR-LRA, 2012 WL 243453 (S.D. Miss. Jan. 25, 2012) (striking answer and entering default against
offending party). The Court hopes it is the last time it has to take such action.
Stewart’s case does not meet this standard. The undisputed evidence shows that Durham
did not have authority to hire anyone at Belhaven. Summary judgment must be granted on this
Next is Stewart’s state-law claim for negligent supervision. The claim also cannot
proceed, as it is undisputed that Durham was not acting in the course and scope of his
employment when he engaged in sexual communications with Stewart. See Cockrell v. Pearl
River Valley Water Supply Dist., 865 So. 2d 357, 362 (Miss. 2004) (“An employee’s personal
unsanctioned recreational endeavors are beyond the course and scope of his employment.”).
Finally, Stewart contends that her emotional distress claims should proceed to trial. But
the Court has previously found a lack of evidence that Stewart suffered emotional distress. See
Docket No. 98 (granting Durham’s motion for summary judgment). Her identical claims against
Belhaven are foreclosed.
The motion for sanctions is granted in part and denied in part. The motion for summary
judgment is granted. Stewart and her counsel shall pay their sanctions within 30 days or, if an
appeal is taken, within 30 days of issuance of the mandate from the Fifth Circuit.
SO ORDERED, this the 8th day of September, 2017.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
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