Julian v. City Of Houston
MEMORANDUM AND ORDER DENYING 41 Second MOTION for Sanctions, 60 MOTION to Supplement Plaintiff's Second Motion for Sanctions (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CHARLES H. JULIAN,
§ CIVIL ACTION NO. 4:12-cv-2973
CITY OF HOUSTON,
MEMORANDUM AND ORDER
Pending before the Court in this employment discrimination suit is Plaintiff Charles H.
Julian’s Second Motion for Sanctions. (Doc. No. 41.)1 By this motion, Mr. Julian seeks
attorneys’ fees as a sanction under Federal Rule of Civil Procedure 37 for alleged discovery
abuses by Defendant City of Houston (“the City”). Since the Court finds that it would be unjust
to require the City to pay attorneys’ fees, Mr. Julian’s motion must be DENIED.
Federal Rule of Civil Procedure 37 “empowers a district court to impose ‘just’ sanctions
on parties who disobey a discovery order,” and “grants a district court considerable, but not
unlimited, discretion in fashioning appropriate penalties for those who disobey such an order.”
F.D.I.C. v. Conner, 20 F.3d 1376, 1380 (5th Cir. 1994) (citing Chilcutt v. United States, 4 F.3d
1313, 1320 (5th Cir. 1993)); see Compaq Computer Corp. v. Ergonome Inc., 387 F.3d 403, 413
(5th Cir. 2004) (“First, any sanction must be ‘just’; second, the sanction must be specifically
related to the particular ‘claim’ which was at issue in the order to provide discovery.”) (quoting
All docket references are to Civil Action No. 4:12-CV-2973. The litigation history, as well as
disputed questions of fact and law in this case, are the subject of prior rulings from the Court.
They will not be repeated here.
Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)
(internal quotation marks omitted)). The Fifth Circuit has cautioned that “sanctions should not be
used lightly, and should be used as a lethal weapon only under extreme circumstances.” E.E.O.C.
v. General Dynamics Corp., 999 F.2d 113, 119 (5th Cir. 1993). “The imposition of a sanction
without a prior warning is to be avoided.” Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.
The Fifth Circuit has explained that courts should consider the following factors in
determining whether to impose sanctions for discovery violations: “(1) the reasons why the
disclosure was not made; (2) the amount of prejudice to the opposing party; (3) the feasibility of
curing such prejudice with a continuance of the trial; and (4) any other relevant circumstances.”
Bennett v. GEO Grp., Inc., No. 12-60017, 2013 WL 5916765, at *4 (5th Cir. May 22, 2013)
(quoting United States v. Garza, 448 F.3d 294, 299-300 (5th Cir. 2006)).
As this Court granted the City’s Motion for Summary Judgment, the only remaining
sanctions issue is Mr. Julian’s request for $5,000.00 in attorneys’ fees.
Mr. Julian contends that Emergency Services Consulting International (“ESCI”), the
executive search firm hired by the City to conduct the City’s 2010 search for a new Fire Chief,
produced several documents in the course of that selection process, all of which it gave to the
City. According to Mr. Julian, those documents include interview notes, score sheets and
assessment notes for each applicant, relevant correspondence, the numerical assessments of each
applicant according to each of the criteria in the initial evaluation, and documents explaining the
initial, semifinalist, and finalist rankings. (See Doc. No. 41-1 at 120:3-12, 120:23-122:13.)
Though these materials were all turned over to the City, the City disclosed to Mr. Julian in
discovery the overall scores and rankings only; nothing was produced showing how the ESCI
team arrived at those scores and rankings. Mr. Julian argues that the City had a legal duty to
preserve these records. See, e.g., 42 U.S.C. § 2000e-8(c) (requiring employers, employment
agencies, and labor organizations to make, keep, and preserve “records relevant to the
determinations of whether unlawful employment practices have been or are being committed.”).
He further claims that he has been prejudiced by the City’s failure to disclose these materials.
Mr. Julian also argues that the City belatedly produced an August 2010 job posting for
the Fire Chief position. Mr. Julian believes that this posting demonstrates that Terry Garrison,
who was ultimately selected as Fire Chief, did not timely apply for the position. He contends that
this document was produced two weeks before trial, and “more than a year after [it was]
originally due.” (Doc. No. at 2.) Mr. Julian believes that he has been prejudiced by the City’s
delayed disclosure. Consequently, Mr. Julian seeks $5,000 in attorneys’ fees and costs under
Rule 37(b)(2)(C) for the drafting of this motion for sanctions, as well as that of past motions, and
for attending hearings on discovery matters.
The City claims that it has produced in discovery in this action all materials that were
produced to the Equal Employment Opportunity Commission (“EEOC”) in response to Mr.
Julian’s February 1, 2011 discrimination complaint, and all documents known to the City, and in
its possession, that are related to ESCI. It claims that it conducted yet another search for
responsive materials following Mr. Julian’s filing of his Second Motion for Sanctions, and did
not uncover any documents that had not already been produced. It submits an affidavit
describing that search and its results from Nancy Yue, a Division Manager in the City’s Human
Resources Department. (Doc. No. 42-3.) “Quite simply,” the City states, “the items the Plaintiff
seeks have not been located through various attempts throughout this litigation, and, in fact, no
one can assert that they exist at all.” (Doc. No. 42 at 4.) The City also argues that Mr. Julian
failed to identify a discovery request that would have required production of the August 2010 job
posting. Accordingly, the City argues that there is no evidence that it willfully avoided, impeded,
or otherwise kept from discovery any responsive materials, or that Mr. Julian has been
prejudiced, rendering the sanctions sought by Mr. Julian entirely inappropriate.
Although the Court queries why the August 2010 job posting did not surface during Ms.
Yue’s July 2014 records sweep, the Court is unconvinced that attorneys’ fees are a just penalty
for these discovery disputes. The prejudice to Mr. Julian from the belated disclosure of the
August 2010 posting is minimal. Mr. Julian argues that the August 2010 job posting supports his
argument that “Chief Garrison did not apply for the Fire Chief Position until after he was
selected for it on August 16, 2014.” (Doc. No. 60 at 2.) But as the Court noted in its order on
“While this evidence may serve to raise a fact question as to whether the rules were bent
regarding Mr. Garrison’s application, the Court is not persuaded that it is sufficient to
demonstrate pretext because it does not serve to cast any doubt on the legitimate,
nondiscriminatory reason the City has proffered for its decision: that Mr. Garrison was
better qualified for the Fire Chief position than Mr. Julian.”
(Doc. No. 48 at 29.) Since the August 2010 job posting offers little support for Mr. Julian’s
argument for pretext, the City’s failure to timely disclose caused negligible prejudice. The City’s
disorganized response to Mr. Julian’s discovery requests is lamentable, but it is not sufficiently
prejudicial to warrant sanctions.
Further, there is no evidence to indicate that the City’s failure to produce the ESCI
materials prejudiced Mr. Julian. While the Court is persuaded by Jerry Freshour’s testimony that
the City very likely possessed these materials at some point, the Court accepts the Affidavit of
Nancy Yue as demonstrating that the City has produced everything responsive in its possession.
Mr. Julian has shown that the City very likely had the materials in its possession, and has made
the uncontroversial showing that the City had a duty to preserve them. The City has not
explained its failure to produce the materials, and instead suggests (stopping just short of
asserting) that the materials do not exist, notwithstanding Mr. Freshour’s testimony.
Nevertheless, there is no evidence that the failure to preserve and produce these materials
prejudiced Mr. Julian’s case. Mr. Julian was allowed to obtain deposition testimony from Mr.
Freshour, whose team created the materials, and Mayor Annise Parker, who interviewed the two
individuals ESCI recommended and made the ultimate hiring decision. Mr. Julian also had
access to the overall scores, rankings, and names of each of the candidates ESCI evaluated. In
light of the information Mr. Julian had access to, the Court is unconvinced that his inability to
access internal ESCI documents constitutes prejudice. While these documents may have shed
light on the mechanics of the hiring process, they would not have undercut the legitimate, nondiscriminatory reason the City provided for its decision to select Mr. Garrison, namely that he
was better qualified for the position than Mr. Julian.
Finally, Mr. Julian has not produced even a scintilla of evidence to show any willfulness
or bad faith on the City’s part. The City’s lack of explanation for its failure to produce the ESCI
materials is disappointing, but there is no evidence to suggest that the City volitionally withheld
the materials. Instead, it appears that the City simply failed to appropriately preserve these
documents. In light of the minimal prejudice to Mr. Julian, attorneys’ fees would not be a just
sanction for this oversight.
The City should not, however, misinterpret the Court’s conclusion. On slightly different
facts, sanctions would be appropriate. The City should use this case as an exemplar to inform all
responsible personnel of the legal requirements as to document retention. The Court takes these
requirements seriously, and so must the City.
For these reasons, Mr. Julian’s Second Motion for Sanctions is DENIED.
IT IS SO ORDERED.
SIGNED at Houston, Texas on this the 10th day of September, 2014.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?