A federal district court did not abuse its discretion in rejecting a request by plaintiffs—the EEOC and several Muslim women—for spoliation sanctions either excluding evidence or instructing the jury that it must draw an adverse inference against a prospective employer the women claimed refused to hire them because they wore hijabs. The plaintiffs’ assertion that the exclusion sanction should have been applied was waived in their opening statement at trial and, as to the adverse inference instruction, they conceded that the company’s destruction of records was not done in bad faith, the Seventh Circuit found (EEOC v. JetStream Ground Services, Inc., December 28, 2017, Hartz, H.).
After Jetstream was selected by United Airlines to clean aircraft at Denver International Airport, it scheduled a job fair for employees of AirServ Corp., the company that was doing the work until JetStream’s contract began. The individual plaintiffs were employed by AirServ, attended the job fair, but were not hired, allegedly because of Jetstream’s religious discrimination.
Change in position. For several years, JetStream claimed the plaintiffs were not hired because of their applications and interviews. A year into discovery, however, it changed its position and instead argued that the hiring decisions were based on the recommendations of an AirServ supervisor. According to JetStream, two of its employees met with the supervisor on November 5, 2008, to hear his hiring recommendations. During the meeting, they marked which employees he recommended on an AirServ employee schedule that contained the names of all AirServ employees. They then entered the information into an Excel spreadsheet. Later that day, the names of the successful applicants were posted in an AirServ employee break room.
Production request. In response to the plaintiffs’ request that JetStream produce, among other things, all documents related to the nondiscriminatory reasons for not hiring the individual plaintiffs, JetStream produced a November 10 version of the Excel spreadsheet. Neither JetStream employee involved in the meeting with the AirServ supervisor could recall what had happened to their notes or the list with checked-off names, although both indicated that they could see no reason to have kept them.
Spoliation request. In a pretrial motion, the plaintiffs sought spoliation sanctions against JetStream, claiming its failure to maintain the original versions of the recommendations violated 29 C.F.R. § 1602.14, which requires employers to preserve for one year all personnel or employment records that it makes or keeps and, if a discrimination charge has been filed, to continue to preserve the records until final disposition of the charge. The district court, however, reserved ruling on the motion, stating that it needed to “hear the evidence at trial.”
Request not renewed. At the trial, however, the plaintiffs did not renew their request to exclude evidence of the list. Rather, during her opening statement EEOC counsel, without objection from any other attorney, extensively discussed the list and JetStream’s assertion that it relied upon it. The plaintiffs did, however, submit a proposed instruction telling the jury to assume the destroyed list included recommendations that the individual plaintiffs “were good workers and that they should be hired.” After a 14-day trial, the jury found for JetStream. The plaintiffs unsuccessfully moved for a new trial under Fed. R. Civ. P. 59, in part based on the district court’s spoliation rulings.
Preclusion of testimony. On appeal, the plaintiffs argued that JetStream should have been precluded from testifying about the supervisor’s possible recommendations. They claimed they failed to object at trial because the district court had already ruled that the evidence was to be presented to the jury, but the court found this to be a “strained interpretation” of the lower court’s statement. There could be little doubt, said the appeals court, that what the district court was conveying at the pretrial hearing was that, before ruling on the request for exclusion of evidence of what amounted to JetStream’s defense, it wanted to hear the plaintiffs’ presentation of their case to better understand the context in which it would have to decide whether destruction of the materials was in bad faith or prejudicial. This, said the appeals court, was a reasonable course for the lower court to take.
Adverse inference instruction. At issue on appeal was whether the requested adverse inference instruction was proper absent a finding of bad faith by the party that possessed the records that were lost or destroyed. The court pointed out that while more recent Tenth Circuit precedents insist on a finding of bad faith before giving an adverse inference instruction, an earlier case suggested that such a finding is unnecessary. Although the court observed that the reasoning in the more recent opinions “might one day convince this court, acting en banc, to overrule the earlier precedent,” it found it unnecessary to resolve this matter now because, under the facts of this case, the court’s earlier decision did not require an adverse inference instruction. In this case, the court pointed out, the plaintiffs conceded during closing arguments at trial that the loss or destruction of the documents at issue was not in bad faith.
The plaintiffs argued that the court was bound by its earlier precedent in Hicks v. Gates Rubber Co., which strongly suggests that in any trial a violation of Section 1602.14, even if not in bad faith, creates a presumption about which the factfinder should be informed. However, the court found Hicks was distinguishable, so it complied with its post-Hicks precedents.
The court then turned to Fed. R. Evid. 301, which governs in the absence of a contrary command in a federal statute or the federal rules. Under Rule 301, once the opposing party produces sufficient evidence to support a finding contrary to the presumed fact, the presumption disappears—that is, no jury instruction should mention it, the court explained, finding that the Hicks presumption required no more from JetStream than to produce evidence that the information destroyed was not favorable for the plaintiffs. And JetStream did just that, said the court, noting that one of the employees involved in the meeting with the AirServ supervisor testified that she did not add anyone to the supervisor’s list or remove from the list any person he recommended. Further, she testified that the individual plaintiffs were not on the list because the supervisor did not recommend them. Given this evidence, the appeals court found that proper application of Rule 301 required the district court to reject an instruction stating the Hicks presumption.
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