Mestecky v. New York City Department of Education et al
Filing
83
ORDER re 79 Letter MOTION for Sanctions filed by Rosa A. Mestecky, 82 Order on Motion for Sanctions: For the reasons stated at the 1/29/2016 conference and in the Court's Order at 82 and further supplemented by the attached Order, the Court denies Plaintiff's motion for sanctions in its entirety. Ordered by Magistrate Judge Vera M. Scanlon on 2/5/2016. (Calabrese, Corey)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROSA A. MESTECKY,
:
:
Plaintiff,
:
:
-against:
:
NEW YORK CITY DEPARTMENT OF
:
EDUCATION, DENNIS M. WALCOTT, in his :
official capacity as Chancellor of the New York :
City Department of Education, MICHELE
:
LLOYD-BEY, individually and in her official
:
capacity as Superintendent of District 27, and
:
GARY FAIRWEATHER, individually and in his :
official capacity as Principal of the PS/MS 43
:
School,
:
:
Defendants.
:
:
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ORDER
13-CV-4302 (CBA) (VMS)
Vera M. Scanlon, United States Magistrate Judge:
Before this court is Plaintiff Rosa A. Mestecky’s (“Plaintiff”) motion for sanctions
against Defendants New York City Department of Education (“DOE”), Dennis M. Walcott,
Michelle Lloyd-Bey and Gary Fairweather (collectively “Defendants”) for spoliation of
evidence. For the reasons stated on the record at the Court’s January 29, 2016 conference and
further discussed herein, Plaintiff’s motion is denied in its entirety.
I.
BACKGROUND
Plaintiff brings this action against Defendants seeking monetary damages for alleged
violations of her rights as protected under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq.; the New York Civil Rights Act of 1991, N.Y. Exec. Law 290 et seq.; the Age
Discrimination Employment Act, 29 U.S.C. § 621 et seq.; the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq.; the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k); 42
U.S.C. § 1983; New York Human Rights Law, Exec. Law § 290 et seq.; and Title 8 of the
Administrative Code of the City of New York. See generally Amended Compl., ECF No. 30.
The Court assumes familiarity with the facts of this case. In brief, Plaintiff, a
probationary teacher employed by Defendant DOE, alleges that she was discriminated against
and denied tenure status in September and October 2012 as a result of her pregnancy, gender,
ethnicity and medical leave. Id. ¶¶ 80-88. Following her denial of tenure, on October 4, 2012,
Plaintiff was provided with an Annual Professional Performance Review and Report on
Probationary Service of Pedagogical Employee (“year-end review”) with several letters attached
and a denial of tenure letter dated October 1, 2012. Id. ¶¶ 91-92. The report found Plaintiff’s
teaching “unsatisfactory” with the exception of classroom management and stated that Defendant
Mr. Fairweather, the principal of Plaintiff’s school, was recommending denial of completion of
Plaintiff’s probationary period. Id. ¶ 91. Plaintiff alleges that this evaluation was inaccurate and
that Defendants produced the negative evaluation in retaliation for Plaintiff filing a
discrimination claim with the Equal Employment Opportunity Commission in September 2012.
Id. ¶¶ 75, 94, 106. On October 21, 2012, Defendant Ms. Lloyd-Bey, the superintendent of the
school district that included Plaintiff’s school, sent Plaintiff a letter denying her certificate of
completion of probation, which led to the termination of Plaintiff’s employment. Id. ¶ 107. In
response, Plaintiff filed a petition for an Article 78 proceeding in New York State Supreme
Court. Id. ¶ 122; Petition attached as Ex. B. to Defs.’ Opp’n to Mot. for Sanctions (“Defs.’
Opp’n”), ECF No. 81. Respondents granted Plaintiff all or almost all of her requested relief and
the state court justice dismissed the Article 78 proceeding as moot. Decision attached as Ex. D
to Defs.’ Opp’n.
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On January 15, 2016, the Court-ordered date for the close of discovery, Plaintiff filed
three motions: a motion for extension of time to complete discovery; a motion to compel
discovery; and a motion for sanctions due to Defendants’ alleged spoliation of evidence. See
generally Mot. for Extension of Time, ECF No. 77; Mot. to Compel, ECF No. 78; Mot. for
Sanctions (“Pl.’s Mot.”), ECF No. 79. Defendants submitted their responses to Plaintiff’s
motions for discovery and sanctions on January 26, 2016. See generally Defs.’ Opp’n to Mot. to
Compel Discovery, ECF No. 80; Defs.’ Opp’n. The Court denied Plaintiff’s motions in their
entirety on the record at a conference held on January 29, 2016. See Minute Entry for
Proceedings held 1/29/2016 and Order, ECF No. 82. This opinion followed to further explain
the Court’s reasoning in denying Plaintiff’s motion for sanctions against Defendants for
spoliation of the evidence.
In her motion for spoliation, Plaintiff accuses Defendants of issuing a directive to
“destroy Plaintiff’s personnel file, including her October 2012 year-end evaluation and 2012
observations of Plaintiff’s performance,” and attaches an email from supervisory Defendants
directing Defendant Mr. Fairweather to remove and shred Plaintiff’s October 2012 year-end
review, tenure decision letter and letter of denial of completion of probation (the “October 2012
documents”). Pl.’s Mot. at 1-2; Ex. 9 attached to Pl.’s Mot. Plaintiff points to this email as
evidence of Defendants’ intentional destruction of the October 2012 documents. Pl.’s Mot. at 3.
Plaintiff seeks the production of the October 2012 documents, as well as the second page of
Plaintiff’s June 2012 year-end evaluation and observation reports conducted by the DOE during
the 2012-2013 school year. Id. at 2. As a result of Defendant’s alleged spoliation, Plaintiff
demands that the Court: (1) strike Defendant’s answer; (2) direct that the jury be given an
adverse inference at trial; (3) issue monetary sanctions against Defendants; (4) order that
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Defendants reimburse Plaintiff for the costs and attorneys’ fees incurred in investigating and
litigating the spoliation of evidence issue; and (5) order any other sanctions and relief that the
Court deems just and proper. Id. at 1, 4.
On the face of Plaintiff’s motion, and the seemingly incriminatory email attached to it, it
would appear that Defendants had intentionally spoliated evidence. Plaintiff’s filing fails to
present an accurate history of relevant events. In their opposition, Defendants provide the Court
with a very good explanation for the destruction of certain documents, which came as a surprise
to the Court given the representations in Plaintiff’s motion. Defendants relate that Plaintiff
requested the expungement of the October 2012 documents in her Article 78 petition and
Amended Article 78 petition as part of her relief sought, and that Defendants complied with this
request in an effort to satisfy Plaintiff’s demands. Defs.’ Opp’n at 1; Amended Petition attached
as Ex. A to Defs.’ Opp’n; Decision. Defendants point to Plaintiff’s Amended Article 78 petition,
wherein Plaintiff requests a judgment directing Defendants to “expunge the false items placed in
[Plaintiff’s] personnel file after September 2012.” Amended Petition at 45 (emphasis added). In
an effort to resolve the Article 78 proceeding, Defendants removed and shredded the documents
to satisfy Plaintiff’s Article 78 demand. Defs.’ Opp’n. at 2. Defendants then memorialized these
actions in an affidavit presented to the state court as part of Defendants’ motion to dismiss the
proceeding as moot, explaining to the court that the documents had been removed from
Plaintiff’s personnel file. Defs.’ Opp’n at 2; Aff. of Charles Peeples (“Peeples Aff.”) attached as
Ex. C to Defs.’ Opp’n ¶¶ 10-12, 14. In the court’s opinion, New York State Supreme Court
Justice Alice Schlesinger explicitly relied on the representations in the Peeples Affidavit in
finding that Defendants had provided to Plaintiff the relief that she had requested in her petition
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and dismissing the proceeding as moot. Decision at 3-4. There is no evidence in the present
record that Plaintiff appealed the Article 78 proceeding dismissal.
Defendants also inform the Court that Plaintiff is in possession of the October 2012
documents, has used them during depositions, and even attached portions of them to her April
29, 2015 motion to compel and the motion to compel she filed on the same day as this motion.
Defs.’ Opp’n at 3. At the January 29, 2016 conference, the Court discussed the “missing”
documents further with the parties. Upon review of the submissions and discussion during the
conference, the Court learned that, although certain original documents were destroyed, Plaintiff
has copies of all of the substantive documents, and that only three documents that may or may
not have existed are not available. First, as to the 2012-2013 observation reports that Plaintiff
claims exist, there is no testimonial evidence that formal observations occurred or that the
documents ever existed. The only indication that Plaintiff had about the existence of these
documents was a notification put in Defendants’ ARIS system, but as Defendants explained, the
computer notices do not prove that a performance was ever conducted. Plaintiff was unable to
give specific dates or provide any recollection as to these formal observations of Plaintiff having
occurred. The only observation discussed with Plaintiff was the informal supplemental
observation by Mr. Fairweather, see Amended Compl. ¶ 30, and there was no evidence presented
that the ARIS system notification referred to the informal review. As to the second page of
Plaintiff’s June 2012 year-end evaluation, Defendants explained that the second page is likely a
signature page (given the usual format of these forms), and as Plaintiff was not a candidate for
tenure during that review, this page would likely not have been completed and submitted. As to
the October 2012 year-end evaluation, the alleged missing page is a signature page. There is no
dispute that Plaintiff’s denial of tenure was stated in the main pages of the document, and there
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was no testimonial evidence that the page was completed, although it may have been. There also
is no denial by Defendant that Plaintiff was denied tenure and her employment terminated based
on the principal’s and superintendent’s actions, which is the only issue that any signature page
would likely support. Thus, the documents Plaintiff claims are missing may never have existed
or would have been of minimal relevance in this case at trial. For these reasons and the reasons
discussed in their opposition, Defendants ask the Court to deny Plaintiff’s motion. Defs.’ Opp’n
at 3.
II.
ANALYSIS
Spoliation is the “destruction or significant alteration of evidence, or the failure to
preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”
West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). A party seeking
sanctions for spoliation, including an adverse inference jury instruction, “must establish ‘(1) that
the party having control over the evidence had an obligation to preserve it at the time it was
destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the
destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of
fact could find that it would support that claim or defense.’” Coale v. Metro-N. Commuter R.
Co., 621 F. App’x 13, 16 (2d Cir. 2015) (quoting Residential Funding Corp. v. DeGeorge Fin.
Corp., 306 F.3d 99, 107 (2d Cir. 2002)).
1. Duty To Preserve
“The obligation to preserve evidence arises when the party has notice that the evidence is
relevant to litigation or when a party should have known that the evidence may be relevant to
future litigation.” Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001). Here, it is
not disputed that Defendants knew of ongoing federal litigation, as Plaintiff had, in addition to
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litigating the Article 78 proceeding, also commenced this federal action by the time the October
2012 documents were destroyed. See Defs.’ Opp’n at 2. Yet, Plaintiff, by requesting that
Defendants expunge the October 2012 documents, by participating in the Article 78 proceeding
and by not appealing the dismissal, waived Defendants’ duty to preserve the evidence and
forfeited any basis on which to accuse Defendants of spoliation of these documents.
Plaintiff’s counsel, at the January 29, 2016 conference, complained that Defendants
should have instead removed the documents from Plaintiff’s file, but saved them in a lawyer’s
file for the ongoing litigation. Her counsel argues that this would have satisfied Plaintiff’s
demands in her Article 78 petition while not violating any preservation obligations in the federal
action. The Court finds Plaintiff’s argument unavailing. First, Plaintiff asked that Defendants
“expunge” the records from her file, Amended Petition at 45, which implies that Plaintiff wanted
the documents destroyed and not merely removed. Second, Defendants’ actions were taken with
the goals of securing Plaintiff the relief she sought in order to resolve the Article 78 proceeding
and of avoiding the need for continued state court litigation. Their actions had that effect, as
Justice Schlesinger determined that Defendants, in removing the October 2012 documents from
her personnel file and providing Plaintiff with other relief, had satisfied all of Plaintiff’s demands
in her petition, and she dismissed the petition as moot. Decision at 3-4. The decision, in fact,
indicates that Justice Schlesinger was aware of the federal action. If Plaintiff disagreed with
these steps and the state court’s decision, she could have opposed Defendants’ actions or
appealed this dismissal, but there is no evidence in the record that she undertook either activity
except to have tried to add new claims to the Article 78 petition. Third, had Defendants merely
removed the documents, and not destroyed them, they would have run the risk that Plaintiff
would have successfully claimed that they gave Plaintiff incomplete relief. Moreover, Plaintiff
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has copies of the main expunged documents.
Thus, it is unreasonable for Plaintiff to have asked Defendants to expunge the October
2012 documents then to have accused Defendants of spoliation. Therefore, the Court finds that
in asking Defendants to expunge the October 2012 documents and participating in the Article 78
proceeding and not appealing, Plaintiff waived Defendants’ duty to preserve in this action.
2. Culpable State of Mind
“Even where the preservation obligation has been breached, sanctions will only be
warranted if the party responsible for the loss had a sufficiently culpable state of mind.” Estate
of Jackson v. Cty. of Suffolk, 12 Civ. 1455 (JFB) (AKT), 2014 WL 1342957, at *11 (E.D.N.Y.
Mar. 31, 2014), adopted by, 12 Civ. 1455 (JFB) (AKT), 2014 WL 3513403 (E.D.N.Y. July 15,
2014) (internal quotation omitted). “In determining culpability, a case-by-case approach is
preferable because failures to produce or preserve can occur ‘along a continuum of fault—
ranging from the innocence through the degrees of negligence to intentionality.’” Wandering
Dago Inc. v. New York State Office of Gen. Servs., No. 13 Civ. 1053 (MAD), 2015 WL
3453321, at *11 (N.D.N.Y. May 29, 2015) (quoting Residential Funding Corp., 306 F.3d at 108).
For example, in Rabenstein, the parties had settled the case and evidence was destroyed after the
settlement agreement was signed. Rabenstein v. Sealift, Inc., 18 F. Supp. 3d 343, 362 (E.D.N.Y.
2014). The plaintiff then accused defendants of gross negligence for failing to preserve the
evidence. Id. The Court, in finding that defendants did not act with a culpable state of mind,
held that “given the ostensible settlement between the parties, there was no duty to preserve the
overtime sheets in question and, thus, no negligence for failing to preserve said overtime sheets.”
Id. at 363; see Wandering Dago, 2015 WL 3453321, at *11 (no culpable state of mind where
emails were administratively deleted); Centrifugal Force, Inc. v. Softnet Commc’n, Inc., 783 F.
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Supp. 2d 736, 742-43 (S.D.N.Y. 2011) (inadvertent destruction of email did not show culpable
state of mind).
In this instance, the Court finds that Defendants similarly did not act with a culpable state
of mind. As in Rabenstein where Defendants acted under the assumption that the case had
settled, Defendants here acted with the intention of resolving Plaintiff’s Article 78 proceeding in
a way sanctioned by the state court. They destroyed the October 2012 documents in a good faith
effort to secure the relief Plaintiff demanded in her petition and to avoid future litigation.
Moreover, they sought Court approval and Plaintiff did not appeal, thus the decision is final.
Under the circumstances presented here, the Court certainly cannot fault Defendants for their
actions nor find they acted with any culpability. As to the other documents Plaintiff identified, it
is not clear that they ever existed or were destroyed by Defendant, so the request fails.
3. Relevance
The Second Circuit has made “clear that relevant in th[e context of a spoliation motion]
means something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of
Evidence.” Residential Funding Corp., 306 F.3d at 108-09 (internal quotations omitted).
It is not enough for the innocent party to show that the destroyed evidence
would have been responsive to a document request. The innocent party
must also show that the evidence would have been helpful in proving its
claims or defenses – i.e. that the innocent party is prejudiced without that
evidence. Proof of relevance does not necessarily equal proof of
prejudice.
Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456,
467 (S.D.N.Y. 2010), abrogated on other grounds by, Chin v. Port Auth. of New York & New
Jersey, 685 F.3d 135 (2d Cir. 2012). “No matter what level of culpability is found, . . . . the
spoliating party should have the opportunity to demonstrate that the innocent party has not been
prejudiced by the absence of the missing information.” Id. at 468. “[T]he absence of prejudice
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can be shown by demonstrating . . . that the other parties were able to obtain the same evidence
from another source,” R.F.M.A.S., Inc. v. So, 271 F.R.D. 13, 24-25 (S.D.N.Y. 2010), adopted
by, R.F.M.A.S., Inc. v. So, 271 F.R.D. 55 (S.D.N.Y. 2010), or that the “evidence would not
support the innocent party’s claims or defenses,” Pension Comm., 685 F. Supp. 2d at 468-69.
See Ruzhinskaya v. HealthPort Techs., LLC, 14 Civ. 2921 (PAE), 2015 WL 7308662, at *5
(S.D.N.Y. Nov. 19, 2015) (“The Court accordingly rejects [the defendant’s] bid for an adverse
inference instruction, because the records that [were] spoliated are, ultimately, immaterial to this
litigation”); In re Pfizer Inc. Sec. Litig., 288 F.R.D. 297, 325 (S.D.N.Y. 2013) (no prejudice
demonstrated where scientific study sought was similar to studies that had already been
produced); Ispat Inland, Inc. v. Kemper Envtl., Ltd., 05 Civ. 5401 (BSJ) (HBP), 2006 WL
3478339, at *3 (S.D.N.Y. Nov. 30, 2006) (no spoliation where specific copies of documents
were destroyed because “duplicates were available to [the defendant’s] counsel and in his actual
possession . . .”).
The Court finds that while the October 2012 documents were relevant, Plaintiff has not
been prejudiced by their destruction as she actually possesses copies of them. Plaintiff even
attached her October 2012 evaluation, in its entirety, to her April 29, 2015 motion to compel.1
See Ex. 4 attached to 4/29/2015 Mot. To Compel, ECF No. 36. Plaintiff has not alleged that the
documents she now accuses Defendants of destroying are different or have been altered from the
copies she holds in her possession. At the January 29, 2016 conference, Plaintiff did not point to
1
At the January 29, 2106 conference Plaintiff attempted to argue that pages were missing from
the October 2012 year-end evaluation. This argument arose from Defendants’ former counsel’s
objection at a deposition that some of the pages from Plaintiff’s copy were missing. No evidence
was presented to the Court that there are actually missing pages, and Defendants’ current counsel
makes no such representation. It is possible that a signature page is missing, but there was no
testimony offered to show it was ever signed or annotated. Therefore, the Court finds this
argument also unavailing.
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any testimony that suggests the documents were modified in any way after Plaintiff received her
copies. Therefore, Plaintiff has access to the documents and has failed to show that she was
prejudiced by their destruction in any way.
As to the possibly missing documents, Plaintiff has failed to demonstrate that they exist
or how they are relevant to this action. The observation reports moat likely were nonexistent as
there is no record they were ever created and Plaintiff did not provide any dates that she was
officially observed in the 2012-2013 year. The second page of her June 2012 year-end
evaluation is also irrelevant as it is likely a form page for signatures. There is no prejudice to
Plaintiff of not having documents of no consequence, that at best would likely concern issues not
in dispute.
III.
CONCLUSION
For the reasons stated above, Plaintiff’s motion for sanctions against Defendants for
spoliation of evidence is denied in its entirety as lacking merit.
Dated: Brooklyn, New York
February 5, 2016
Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge
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