United States of America v. New Mexico State University et al
Filing
323
MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting and denying in part 290 MOTION for Sanctions Due to Spoliation. (bap)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
v.
No. 16-CV-911-JAP-LF
REGENTS OF NEW MEXICO
STATE UNIVERSITY,
Defendant.
MEMORANDUM OPINION AND ORDER
The United States of America (Plaintiff or the United States) filed suit against Defendant
Regents of New Mexico State University (Defendant or NMSU) to enforce the provisions of
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq.1 The United States alleges that
Defendant engaged in pay discrimination against former NMSU employee Meaghan Harkins
(Ms. Harkins) in violation of Title VII. Because Defendant destroyed certain documents the
United States sought to obtain through discovery, the United States has moved to exclude
evidence at trial as a sanction for spoliation.2 Defendant responds that no sanction is warranted.3
The Court will grant the Motion in part and deny the Motion in part.
I.
BACKGROUND
Plaintiff alleges that because of Ms. Harkins’ gender, Defendant paid her less than it paid
two male employees in similar positions. The factual background of this claim is set forth in the
1
See COMPLAINT (Doc. No. 1).
See UNITED STATES’ MOTION FOR SPOLIATION SANCTIONS (Doc. No. 290); UNITED STATES’
REPLY IN SUPPORT OF ITS MOTION FOR SPOLIATION SANCTIONS (Doc. No. 303).
3
See DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR SPOLIATION
SANCTIONS (Doc. No. 298).
2
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Court’s Memorandum Opinion and Order denying summary judgment (Doc. No. 259), and the
Court will not repeat it here other than as is relevant to Plaintiff’s spoliation claim. Defendant
hired two male assistant coaches in August 2007, Mr. Harkins and Mr. Fister. Doc. No. 141, Ex.
A. Defendant had interviewed Ms. Harkins for the position filled by Mr. Fister, but it did not hire
her at that time. Doc. No. 187, Ex. 5. Ms. Harkins began volunteering with Defendant’s track
and field program in January 2008, and in March 2008 she was hired in a paid position. Doc. No.
141, Ex. B. Ms. Harkins remained employed by Defendant until December 2011. Doc. No. 187,
Ex. 5. After her resignation, Ms. Harkins filed a charge alleging that Defendant had
discriminated against her by paying her less than the male coaches. Doc. 146, Ex. E.
Defendant received notice of Ms. Harkins’ gender-based discrimination charge from the
EEOC on May 15, 2012. Doc. No. 191, Ex. 1; Doc. No. 214, Ex. 1. The EEOC requested
specific documents and information from Defendant, but also informed Defendant that the
requested items were not necessarily all that would be required to resolve the charge. Doc. No.
214, Ex. 2. The EEOC instructed Defendant to retain all personnel records that were relevant to
the charge until final disposition of the matter, which it defined as the termination of litigation or
the expiration of the period in which suit could be filed. Doc. No. 236, Ex. 3. The recruitment
files for Ms. Harkins,4 Mr. Harkins, and Mr. Fister were subject to destruction in 2011 or 2012
under NMSU’s normal operating procedures. Doc. No. 191, Ex. 14. However, these files were
still in Defendant’s possession when it received notice of the EEOC charge and of its duty to
retain documents. Doc. No. 214, Ex. 5.
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Defendant suggests that no recruitment file may have ever existed for Ms. Harkins because she was not hired
through a competitive process. However, testimony Defendant has previously presented to the Court states that Ms.
Harkins did have a recruitment file. To the extent any recruitment file did exist, it is undisputed that it was destroyed
in October of 2014.
2
On August 2, 2013, the EEOC issued a Letter of Determination informing Defendant that
it had found reasonable cause to believe that Defendant had discriminated against Ms. Harkins
due to her gender. Doc. No. 146, Ex. F. Efforts by the EEOC to negotiate a settlement with
Defendant were unsuccessful. Doc. No. 146, Ex. G. On May 13, 2014, the EEOC notified
Defendant that the charge was being sent to the Department of Justice (DOJ) for possible
litigation. Id.
On or about October 10, 2014, Defendant destroyed the recruitment files for Ms. Harkins,
Mr. Fister, and Mr. Harkins. Doc. No. 214, Ex. 5. DOJ notified Defendant on January 7, 2015,
that it was beginning investigation of the charge. Doc. No. 191, Ex. 6. It conducted interviews
and requested information and documentation, noting Defendant’s obligation to retain all
relevant documents even if DOJ had not requested that they be produced. See Doc. No. 191, Ex.
7–Ex. 11. Certain requested information which may have been contained in the recruitment files
was unavailable to DOJ because the files had been destroyed prior to the start of DOJ’s
investigation.
II.
LEGAL STANDARD
When a charge of discrimination has been filed with EEOC against an employer, the
employer must preserve all relevant personnel records until the matter has been resolved. 29
C.F.R. § 1602.14. Personnel records “include[e] but [are] not necessarily limited to requests for
reasonable accommodation, application forms submitted by applicants and other records having
to do with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay or other
terms of compensation, and selection for training or apprenticeship[.]” Id. “‘[P]ersonnel records
relevant to the charge,’ . . . would include personnel or employment records relating to the
aggrieved person and to all other employees holding positions similar to that held . . . by the
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aggrieved person . . ..” Id. These documents must be preserved until “the date of expiration of the
statutory period within which the aggrieved person may bring an action in a U.S. District Court
or, where an action is brought against an employer either by the aggrieved person, the
Commission, or by the Attorney General, the date on which such litigation is terminated.” Id.
“Spoliation includes the intentional or negligent destruction or loss of tangible and
relevant evidence which impairs a party’s ability to prove or defend a claim.” Browder v. City of
Albuquerque, 209 F. Supp. 3d 1236, 1243 (D.N.M. 2016) (internal quotation marks omitted).
“Spoliation sanctions are proper when ‘(1) a party has a duty to preserve evidence because it
knew, or should have known, that litigation was imminent, and (2) the adverse party was
prejudiced by the destruction of the evidence.’” Turner v. Pub. Serv. Co. of Colorado, 563 F.3d
1136, 1149 (10th Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013,
1032 (10th Cir. 2007)). “‘[T]he general rule is that 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.’” 103 Investors I, L.P. v. Square D
Co., 470 F.3d 985, 988 (10th Cir. 2006) (quoting Aramburu v. Boeing Co., 112 F.3d 1398 (10th
Cir.1997)). “Mere negligence in losing or destroying records” will not justify an adverse
inference instruction, but “the [C]ourt . . . may impose lesser sanctions absent a finding of bad
faith.” Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1220 (10th Cir. 2008). “‘The district
court has discretion to fashion an appropriate remedy depending on the culpability of the
responsible party and whether the evidence was relevant to proof of an issue at trial.’” Id.
(quoting Estate of Trentadue v. United States, 397 F.3d 840, 862 (10th Cir. 2005)); see also 103
Investors I, L.P., 470 F.3d at 989 (upholding the district court’s exclusion of evidence as a
sanction for spoliation without a showing of bad faith).
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III.
DISCUSSION
The United States contends that the recruitment files for Ms. Harkins, Mr. Harkins, and
Mr. Fister were relevant personnel records that Defendant was required to retain until the
termination of this litigation. Plaintiff asserts that Defendant’s October 2014 destruction of these
files “prejudices the United States by depriving it of contemporaneous evidence of NMSU’s
evaluation of the three assistant coaches.” Mot. at 8. As a sanction, the United States requests
that the Court exclude “any evidence that, in setting Mr. Fister’s and Mr. Harkins’ salaries,
[NMSU] considered any education or experience beyond what is included in the coaching
experience sections of their resumes.” Mot. at 13. Plaintiff argues that the destroyed recruitment
files contained the only contemporaneous record of salary setting decisions for the three assistant
coaches. It maintains that prohibiting NMSU from presenting any evidence that it considered
information other than that included in the coaching experience section of the resume is an
appropriate sanction because the United States has no records of the decision-making process
with which to challenge such testimony.
NMSU argues that the recruitment files are not relevant because (1) any important
documents, such as resumes and cover letters, were transferred to the coaches’ personnel files
and were produced in discovery; (2) salaries were set based on the budget and NMSU relied on
education and experience only to determine if a deviation from the budget was required; (3) the
files contained information used in hiring, not salary setting, and (4) Ms. Harkins may not have
had a standard recruitment file because she was not hired through a competitive process.
It is difficult to determine the exact relevancy of the information contained in destroyed
files because their contents are unknown. However, the recruitment files clearly fall within the
category of “relevant personnel records” as defined by 29 C.F.R. § 1602.14, and any documents
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contained within the files would have been relevant to hiring decisions made regarding the three
coaches. Further, NMSU itself argued that these files contained relevant salary comparisons
when it sought dismissal based on laches. See Reply in Support of Defendant’s Motion to
Dismiss, ¶ 9 (Doc. No. 226). Accordingly, the Court finds that the recruitment files are relevant
and that Defendant had a duty to preserve these records.
Even so, NMSU asserts that the United States has not been prejudiced by the destruction
because the education and experience Defendant was aware of and relied on to set the coaches’
salaries were listed on their resumes and did not come from “some extraneous source.” See Resp.
at 10–11. However, there is no substitute for the contemporaneous salary comparisons and any
notes these recruitment files may have contained, and the Court therefore finds that Plaintiff has
been prejudiced by the destruction of this evidence. Of course, the degree of prejudice is
uncertain when the particular documents that were destroyed are not identifiable, but the Court
concludes that a properly tailored evidentiary sanction would be appropriate under these
circumstances. See Chambers v. NASCO, Inc., 501 U.S. 32, 43–44 (1991) (Federal courts
possess the inherent power “to fashion an appropriate sanction[.]”).
The United States’ requested sanction is the exclusion of “any evidence that, in setting
Mr. Fister’s and Mr. Harkins’ salaries, [NMSU] considered any education or experience beyond
what is included in the coaching experience sections of their resumes.” Mot. at 13. It argues that
the breadth of this exclusion is warranted by NMSU’s culpability in destroying the files and the
prejudice the United States has suffered as a result. Any notes from interviews or consultations
with references that could have reflected NMSU’s knowledge or evaluation of the applicant have
been destroyed. As a consequence, the United States contends that it will be unable to effectively
cross-examine witnesses who testify that they learned and considered additional information
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during the hiring process. The United States maintains that the destroyed files may have
contained evidence that even qualifications listed in cover letters or other sections of the resumes
were not actually relied on as a basis for salary-setting decisions. It asserts that this missing
information has hindered its ability to demonstrate that NMSU’s proffered justifications for the
salary differences are pretextual.
The Court agrees that the destruction of contemporaneous records makes it difficult to
prove what NMSU knew and considered, or failed to consider, at the time the hiring and salarysetting decisions were made. However, the Court believes the requested sanction is overly broad
given that there is no dispute that the entirety of the resumes and cover letters were available to
NMSU during the hiring process, were preserved in the personnel files, and were produced in
discovery. Accordingly, the Court will grant the Motion in part but will impose a more limited
sanction than the United States has requested.
IT IS THEREFORE ORDERED that:
(1)
The UNITED STATES’ MOTION FOR SPOLIATION SANCTIONS (Doc. No.
290) is GRANTED in part and DENIED in part;
(2)
Defendant is precluded from introducing evidence that, in setting Mr. Harkins’
and Mr. Fister’s salaries, NMSU considered any education or experience that is
not included in their respective resumes, cover letters, or other contemporaneous
documentation of the hiring or salary-setting process that has been produced to
the United States during discovery; and
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(3)
The United States may address through cross-examination (1) those qualifications
that are documented but that it believes were not actually considered; (2) the
inability of witnesses to recall the hiring and salary-setting process; and (3) the
destruction of files after Defendant was notified of the charges in this case.
SENIOR UNITED STATES DISTRICT JUDGE
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