Heck v. Memorial Health Systems

Filing 111

MEMORANDUM AND ORDER re 88 MOTION for Sanctions for Spoilation filed by Memorial Health Systems. Defendant's Motion for Sanctions for Spoiliation is DENIED in its entirety. Signed by Honorable John E. Jones, III on 8/20/12. (pw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANNE HECK,
Plaintiff,
v.
MEMORIAL HEALTH SYSTEMS d/b/a
MEMORIAL HOSPITAL,
Defendant.

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No. 1:10-cv-1675
Hon. John E. Jones III

MEMORANDUM & ORDER
August 20, 2012
Presently pending before the Court in this matter is the Motion for
Spoliation Sanctions (doc. 88) filed by the Defendant, Memorial Health Systems
d/b/a Memorial Hospital (“Memorial”). Therein, Memorial seeks preclusion of all
evidence related to Plaintiff’s attempt to find replacement employment from May
2009 through the present, in addition to an award of costs and attorneys’ fees
incurred in the filing of the instant Motion. (Id.). For the reasons stated herein, we
will deny the Defendant’s Motion.
I.

INTRODUCTION & BACKGROUND
Plaintiff Anne Heck (“Plaintiff”) commenced the above-captioned action

with the filing of a Complaint (doc. 1) on August 11, 2012. Therein, Plaintiff sets
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forth several causes of action pursuant to the Americans with Disabilities Act
(“ADA”) alleging that Memorial failed to accommodate her disability and
retaliated against her for the same. (Id.). Among other damages, she seeks both
back pay and front pay, relating back to the date on which she was asserts she was
constructively discharged. (Id.). Memorial pled as an affirmative defense that the
Plaintiff has failed to mitigate any such damages. (Doc. 21, p. 31, ¶ 9).
On March 18, 2011, Memorial served Plaintiff with its first set of Requests
for Production of Documents which sought, inter alia:
All documents that relate or refer in any way by you to
obtain employment from January 1, 2009, to the present,
(excluding Memorial) including, but not limited to,
advertisements reviewed, advertisements responded to,
employment agencies contacted, applications made,
resumes submitted, interviews obtained, resumes, forms,
correspondence, notes, and/or memoranda.
(Doc. 89, Ex. A, Request for Production No. 15). Plaintiff served her responses on
May 5, 2011. (Id. Ex. B). In response to Request No. 15, Plaintiff produced a copy
of her personal calendar for the months of January through May 2011, where she
handwrote the places of employment where she allegedly submitted applications.
(Id. Ex. C, Plaintiff’s Deposition).
During her deposition on May 18, 2011, Plaintiff admitted that the personal
calendar did not fully reflect her attempts to obtain employment following her
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May 2009 separation from Memorial. (Id. Ex. D, p. 139-40). Plaintiff explained
that she began looking for positions in the fall of 2009, but “was not aware at the
time that [she] needed to document or journal them.” (Id. p. 139). She stated that
she did calendar her various applications throughout 2010, but that she lost that
calendar approximately two weeks prior to her deposition. (Id. p. 116). In response
to Memorial’s request on July 2, 2012 querying whether the Plaintiff intended to
supplement her response to Request No. 15, Plaintiff’s counsel represented that
Plaintiff had no further documents to produce regarding her employment search.
On July 18, 2012, Memorial filed a Motion in Limine (doc. 68) to preclude
reference to Plaintiff’s wage loss claims, contending that no evidence in support of
that claim existed. In response, Plaintiff argued that she would offer testimony in
support of her job search efforts. (Doc. 83, p. 7). The Court denied this motion
during the pretrial conference, concluding that the same was nothing more than a
ill-disguised and untimely motion to dismiss the Plaintiff’s entire wage loss claim.
On July 27, 2012, Memorial filed the instant Motion for Sanctions for Spoliation
(doc. 88), contending that the Plaintiff failed to preserve relevant evidence.
II.

DISCUSSION
As a threshold matter, we note that the parties seemingly conflate the issues

of whether spoliation occurred and whether spoliation sanctions are warranted.
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The Third Circuit has distinguished the tests to be applied by district courts in
making both determinations. “Spoliation occurs where: the evidence was in the
party’s control; the evidence is relevant to the claims or defenses in the case; there
has been actual suppression or withholding of evidence; and, the duty to preserve
the evidence was reasonably foreseeable to the party.” Bull v. U.P.S., 665 F.3d 68,
73-74 (3d Cir. 2012). However, a finding that spoliation occurred does not
necessarily require an award of spoliation sanctions. The sanctions analysis
requires balancing of the following factors: “(1) the degree of fault of the party
who altered or destroyed the evidence; (2) the degree of prejudice suffered by the
opposing party; and (3) whether there is a lesser sanction that will avoid
substantial unfairness to the opposing party, and, where the offending party is
serious at fault, will serve to deter such conduct in the future.” Id. at 73 n.5. We
thus first query whether spoliation occurred in this case.
Two factors are easily satisfied. Plaintiff stated during her deposition that
she has applied for more than fifty different positions. Thus, application materials,
advertisements, and other documents including resumes, notes, and
correspondence were necessarily within the Plaintiff’s possession and control at

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some point during her employment search.1 The same is true, for example, of
advertisements reviewed in newspapers, or resumes mailed out, which were
likewise at some point within the Plaintiff’s control. The second element is
likewise easily fulfilled: the evidence directly supports Plaintiff’s contention that
she tried, but failed, to obtain employment in aid of mitigating her damages.
In support of the third and fourth elements of our analysis, Memorial asserts
that Plaintiff has consistently––and continues to––engage in the “actual
suppression or withholding of evidence” by applying for vacant positions while
knowingly failing to preserve evidence. It contends that she has purposefully and
deliberately attempted to spoliate evidence by failing to preserve or disclose any
documentation or other evidence related to her job search, aside from her personal
calendars for each year––one of which she reports is now lost. It is here that our
agreement with Memorial’s analysis ends.
The Third Circuit has held that “a finding of bad faith is pivotal to a

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Plaintiff’s argument in opposition to this conclusion is borderline disingenuous. Plaintiff
contends that because she did not have a printer attached to her computer to create a tangible,
physical copy of the applications, she did not have control over the documents and thus cannot be
held responsible for failure to preserve them. The mere fact that Plaintiff did not have the ability
at her home to create tangible copies of these documents does not negate the fact that such
documents could have been electronically store or mailed, or printed at any one of a number of
commercial copying or printing services throughout discovery. As Memorial notes, the Plaintiff’s
argument would permit parties to escape discovery simply by never creating a physical copy of
an electronically-stored document. The absurdity of such a rule begs no further discussion.
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spoliation determination.” Bull, 665 F.3d at 79 (emphasis added). Memorial has
failed to demonstrate to this Court that the Plaintiff’s actions in choosing to
document her employment search on a personal calendar and her subsequent
accidental loss of one of those calendars were actions taken in bad faith or in an
attempt to thwart the judicial system. Plaintiff stated at her deposition that the
calendar had merely been misplaced, and that she did not keep detailed records of
her job applications, such as printed records or copies of newspaper
advertisements, because she “was not aware at the time that [she] needed to
document or journal them.” (Doc. 89, Ex. D, p. 139).
The purpose of spoliation sanctions is to adequately deter evidentiary
misdeeds by parties and to remedy prejudice to the moving party cause by the
opposing party’s injudicious behavior. See Bull, 665 F.3d at 73-74. Memorial has
demonstrated to this Court no degree of fault on the part of Plaintiff warranting
such draconian a punishment as exclusion of all evidence related to a substantial
portion of her discrimination claims. We thus conclude that spoliation sanctions
are not warranted and will deny the Defendant’s Motion.
III.

CONCLUSION
For all of the above reasons, the Court will deny the Defendant’s Motion for

Sanctions for Spoliation (doc. 88).
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NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s
Motion for Sanctions for Spoliation (doc. 88) is DENIED in its entirety.

/s John E. Jones III
John E. Jones III
United States District Judge

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