Park, Yu Jung v. City of Chicago ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-1552 & 01-2760
YU JUNG PARK,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 372—Joan Humphrey Lefkow, Judge.
____________
ARGUED JANUARY 14, 2002—DECIDED JULY 22, 2002
____________
Before POSNER, RIPPLE and DIANE P. WOOD, Circuit Judges.
RIPPLE, Circuit Judge. In February 1999, the Chicago Po-
lice Department (“CPD”) terminated Yu Jung Park on the
ground that she had abused her use of leave time from
work. Soon after this decision, Ms. Park filed this action
against the City of Chicago (“the City”). She alleged that the
CPD terminated her because of her race and national origin
in violation of Title VII and 42 U.S.C. § 1981. These claims
proceeded to trial, and a jury returned a verdict for the City.
Ms. Park now appeals and alleges that the district court
made several erroneous rulings that affected the outcome
of the trial. For the reasons set forth in the following opin-
ion, we affirm.
2 Nos. 01-1552 & 01-2760
I
BACKGROUND
A. Facts
In May 1998, Ms. Park, an Asian-American of Korean
ancestry, graduated from the CPD’s police academy. Al-
though the CPD still considered Ms. Park a probationary
police officer (“PPO”), it assigned her for field training
in the Thirteenth District, a precinct on Chicago’s west
side. During her probationary period, Ms. Park generally
received solid evaluations from her primary field training
officer (“FTO”), Officer Miguel Reyes. A second officer who
served as Ms. Park’s temporary FTO for a two-week period
provided a harsher critique of Ms. Park’s performance.
In particular, the temporary FTO, Officer Lily St. Pierre,
noted deficiencies in Ms. Park’s attitude and attention to
detail.
Sergeant Bryon Uding of the Thirteenth District, at the
direction of his watch commander, reviewed the negative
evaluation with Ms. Park. The conversation became heated,
and Ms. Park expressed in colorful terms her displeas-
ure with Officer St. Pierre’s training methodology. The ser-
geant’s report of this incident prompted the commander
of the police academy not only to counsel Ms. Park con-
cerning her attitude but also to extend her probationary
period. Throughout the autumn and winter months of 1998,
Ms. Park spent several days on the medical roll, nearly de-
pleting her leave time with the CPD.
In early 1999, citing an alleged abuse of leave time, the
CPD convened a Field Evaluation Review Board (“FERB”)
to assess Ms. Park’s performance. During the meeting, the
FERB considered various materials, including the FTOs’
evaluations of Ms. Park’s performance, Sergeant Uding’s
report concerning his encounter with Ms. Park and informa-
Nos. 01-1552 & 01-2760 3
tion concerning Ms. Park’s use of the medical roll. After
considering these materials, the FERB unanimously recom-
mended Ms. Park’s termination; she learned of this action
several days later.
In January 2000, almost one year after her termination,
Ms. Park requested to review her CPD personnel file pur-
suant to the Illinois Personnel Record Review Act (“the
Illinois Record Act” or “the Act”), 820 ILCS 40/1 to 40/12.
In general terms, this state statutory scheme permits an
employee to inspect personnel documents “used in deter-
mining [his] qualifications for employment, . . . discharge
or disciplinary action.” 820 ILCS 40/2. If an employer fails
to abide by the Act, an aggrieved employee may seek not
only compliance but also sanctions against the employer
through administrative, and in some cases, judicial chan-
nels. See 820 ILCS 40/2, 40/12. In particular, if an employer
withholds personnel records from the employee, the Illi-
nois Record Act prohibits the employer from using these
documents against the employee in a judicial proceeding
unless a judge determines that: (1) the failure to turn over
the documents was unintentional; and (2) the employee has
had a reasonable time to review the documents prior to
trial. See 820 ILCS 40/4. In this case, the City responded to
Ms. Park’s request and turned over what it represented to be
the entire contents of her personnel file.
B. District Court Proceedings
After inspecting her personnel file, Ms. Park filed this
action against the City. She alleged that the CPD terminated
her because of her race and national origin in violation of
Title VII and 42 U.S.C. § 1981. The district court promptly
scheduled a trial date and established a stringent discov-
ery schedule. The parties, however, quickly became em-
4 Nos. 01-1552 & 01-2760
broiled in discovery disputes. In particular, on July 24,
2000, Ms. Park, through counsel, filed the first of several
motions to compel the production of documents retained
by the City. The City contested the motion on the ground
that it had disclosed several thousand pages of documents
in compliance with Ms. Park’s discovery requests. Dissatis-
fied with this response, the district court entered judgment
against the City on liability, but stayed the order to provide
the parties with an opportunity to resolve the dispute.
Although the City produced additional documents over
the next two weeks, some of Ms. Park’s discovery requests
remained unfulfilled.
On August 10, the parties appeared before the district
court. Although acknowledging that the City had disclosed
thousands of records, Ms. Park’s counsel emphasized that
she had not received “performance evaluation[s] or dis-
ciplinary histor[ies], attendance records, the core docu-
ments . . . need[ed] to prove [her] case in this matter.” Tr.26-
2 at 14. In response, the City stressed that it had responded
to Ms. Park’s broad discovery requests in “a very short pe-
riod of time with very tight manpower” constraints. Id. at 6.
Moreover, the City noted that it would continue its ef-
forts to comply with Ms. Park’s discovery requests. The dis-
trict court, however, lifted the stay on its order and entered
a judgment on liability in favor of Ms. Park. Several days
later, on its own motion, the district court reversed course
and entered the following order: “The court . . . vacates its
entry of judgment on liability for plaintiff as premature
1
since discovery does not close until 9/5/00.” R.22.
Over the next several months, the district court continued
to work with the parties to resolve the remaining discovery
1
Soon after this ruling, a different judge assumed responsibility
over this case and presided over the remainder of the litigation.
Nos. 01-1552 & 01-2760 5
disputes. Although granting Ms. Park’s third motion to
compel production of a small class of additional documents,
the district court expressed concern that “this case is be-
ing over discovered.” Tr.101-2 at 7. In December 2000, Ms.
Park filed an additional motion to compel, seeking, among
other things, the performance reviews of several additional
police officers. In addition, Ms. Park’s counsel expressed
frustration with the City’s failure to produce other docu-
ments and noted that she was “getting the same response
from the defendant regarding these issues, if they don’t
produce the documents, it has been destroyed. . . . None of
these documents should be destroyed.” Tr.101-5 at 4. Once
again, the City reiterated that it had attempted vigorously
to comply with the document requests and had produced,
“substantially all that [it was] required to produce.” Tr.101-5
at 2. The City indicated that many of the unproduced
documents had been destroyed or could not be located.
After considering the parties’ positions, the district court
again granted the motion to compel, but declined implicitly
to impose sanctions on the City. The district court also
instructed the City to provide Ms. Park with a formal
response detailing the precise documents that had been lost
or destroyed.
Shortly before trial, citing the missing and destroyed
documents, Ms. Park requested that the district court pro-
vide the jury with an adverse inference instruction. In
particular, Ms. Park submitted that a jury could infer from
the City’s failure to produce these records that the docu-
ments contained information adverse to its case. The district
court, however, declined to give the instruction.
Prior to trial, Ms. Park also filed a motion in limine seek-
ing the exclusion of certain documents (“the contested
documents”) from trial pursuant to the sanction provision
of the Illinois Record Act. In July 2000, the City disclosed
6 Nos. 01-1552 & 01-2760
numerous documents relating to Ms. Park’s termination
from the CPD. However, some of these records—the con-
tested documents—had been absent from Ms. Park’s per-
sonnel file when she inspected it in January 2000. According
to Ms. Park, the City had withheld intentionally these doc-
uments in January 2000 in violation of the Illinois Record
Act. Ms. Park contended that the district court was obli-
gated to exclude the documents in accordance with the
sanction provision of the Illinois statute.
In addition, one week before trial, Ms. Park sought leave
to amend her complaint to include a claim that the City had
violated the Act. Again, she requested that the district court
enforce the sanction provision of the statute and exclude
the contested documents from trial.
The district court denied both motions. In particular, the
court rejected Ms. Park’s contention that the exclusionary
provision of the state statute controlled in this federal
question litigation. Moreover, the court noted that, even
if the Act controlled, Ms. Park had failed to establish that
the City intentionally withheld the contested documents—
the necessary showing needed to trigger the sanction
provision. Similarly, the court denied the motion to amend
on the grounds that such an amendment would be futile
and untimely. In particular, Ms. Park had failed to follow
the administrative procedures necessary before a personal
suit could be instituted under the Act, thereby rendering
her amendment futile. In the alternative, the district court
noted that Ms. Park knew of the potential violation of the
Act in July 2000, but had waited until the eve of trial to
amend her complaint.
After a trial on the merits of Ms. Park’s claims, a jury
found the City not liable for violations of Title VII and
§ 1981. The City promptly moved to recover its costs for the
litigation. Although Ms. Park vigorously contested the
Nos. 01-1552 & 01-2760 7
imposition of costs, the district court granted the City’s
motion.
II
DISCUSSION
A. Illinois Record Act
1.
We turn first to Ms. Park’s contention that the district
court violated the mandates of Erie Railroad Co. v. Tompkins,
304 U.S. 64 (1938), when it denied her motion in limine
and thus declined to exclude the contested documents
from trial pursuant to a sanction provision of the Illinois
Record Act. In essence, Ms. Park submits that this state
evidentiary statute should govern not only discovery but
also issues of admissibility in this federal question litiga-
tion.
We cannot accept this proposition. The Federal Rules of
Evidence, not provisions of state law, govern the admissibil-
ity of evidence in federal court. See Fed. R. Evid. §§ 101, 402.
It is well-established that, generally, the rule in Erie Railroad
Co. v. Tompkins, 304 U.S. 64 (1938), requires federal courts to
apply state substantive law “except in matters governed by
the Federal Constitution or by acts of Congress.” Erie, 304
U.S. at 78. Matters concerning the admissibility of evidence
and matters of practice and procedure are governed by
federal law, as long as those rules are procedural in charac-
2
ter. See Hanna v. Plumer, 380 U.S. 460, 469-74 (1965).
2
Even if the exclusion of these documents were considered a
matter of substance under the Erie doctrine, that doctrine, by its
own terms, would not apply in this case. The doctrine simply
(continued...)
8 Nos. 01-1552 & 01-2760
Given these principles, the district court correctly rejected
Ms. Park’s motion in limine seeking exclusion of the doc-
uments pursuant to the Illinois Record Act. The exclusion
of documents as a sanction for nondisclosure is a subject
for regulation by the federal court as a matter of proce-
dure. Moreover, Ms. Park’s principal cause of action stems
from Title VII, a federal statute that prohibits certain
forms of discrimination in the workplace. Indeed, her
claims arise exclusively under federal law. As we noted, in
such a situation, Erie and its progeny do not bind the fed-
eral courts. As such, the Illinois Record Act, a state eviden-
3
tiary statute, may not displace the Federal Rules of Evi-
dence and the guidelines they establish concerning the
admissibility of these documents in Ms. Park’s Title VII and
§ 1981 actions. Accordingly, the district court was not ob-
ligated to follow the sanction provision of the Illinois
Record Act and properly rejected Ms. Park’s motion in
limine.
2
(...continued)
does not apply and state substantive law does not control when
a plaintiff’s claim arises under federal statutory or constitutional
law. See Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 131
F.3d 625, 628 n.3 (7th Cir. 1997). Simply put, “Erie and its prog-
eny do not bind federal courts [when] rights are asserted under
an act of Congress.” Commonwealth Edison Co. v. Gulf Oil Corp.,
541 F.2d 1263, 1271 (7th Cir. 1976).
3
Although the parties debate whether the Illinois Record Act
constitutes a substantive or procedural rule, the distinction is
irrelevant in this case. Ms. Park’s claims derive from federal stat-
utes. As discussed in footnote 2 and the accompanying text,
under these circumstances, the federal courts have no obliga-
tion to follow in federal question litigation this evidentiary
sanction provision regardless of its procedural or substantive
nature.
Nos. 01-1552 & 01-2760 9
2.
In addition, Ms. Park also contends that the district court
erred when it denied her leave to amend her complaint
to include a claim against the City for a violation of the
Illinois Record Act. The district court denied the mo-
tion, concluding not only that the amendment was futile
but also untimely. We review this determination for an
abuse of discretion. See Feldman v. Am. Memorial Life Ins. Co.,
196 F.3d 783, 793 (7th Cir. 1999).
Although Federal Rule of Civil Procedure 15(a) provides
that, in most instances, a party must seek leave of court
to amend his complaint, it instructs the courts to give free-
ly such leave “when justice so requires.” Fed. R. Civ. Proc.
15(a). The terms of the rule, however, do not mandate
that leave be granted in every case. In particular, a district
court may deny a plaintiff leave to amend his complaint
if “there is undue delay, bad faith[,] or dilatory motive . . .
[, or] undue prejudice to the opposing party by virtue
of allowance of the amendment, [or] futility of amendment.”
Ferguson v. Roberts, 11 F.3d 696, 706 (7th Cir. 1993). In
this case, the district court determined that amendment
4
would be futile because Ms. Park had not exhausted the
available administrative remedies and because the request,
filed on the eve of trial, was untimely.
We find it unnecessary to address the issue of non-ex-
haustion of administrative remedies because, even if
those remedies had been exhausted, Ms. Park would not
be entitled to the relief she seeks. Although the Illinois
Record Act permits a victorious plaintiff to recover money
4
See Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964,
974-75 (7th Cir. 2001); Bower v. Jones, 978 F.2d 1004, 1008 (7th Cir.
1992).
10 Nos. 01-1552 & 01-2760
damages for a violation of its terms, Ms. Park, through
her motion to amend, sought only to exclude the con-
tested documents. Indeed, when asked during oral argu-
ment what remedies were sought for a violation of the Act,
counsel for Ms. Park confirmed that his client only sought
the exclusion of the documents from trial. In essence, the
motion to amend served merely as a permutation of her
attempt to use this state statute to exclude otherwise
admissible and relevant documents from this federal ques-
tion litigation. As we have already concluded, the sanction
provision of the Illinois Record Act cannot dictate the ad-
missibility of evidence in this proceeding.
Moreover, we cannot say that the district court abused
its discretion in concluding that the proposed amendment
was untimely because Ms. Park unduly delayed in fil-
ing the motion to amend her complaint. Delay, standing
alone, may prove an insufficient ground to warrant denial
of leave to amend the complaint; rather, “the degree of
prejudice to the opposing party is a significant factor in
determining whether the lateness of the request ought to bar
filing.” See Doherty v. Davy Songer, Inc., 195 F.3d 919, 927
(7th Cir. 1999). However, even if the district court fails
to articulate a finding of prejudice, we may affirm pro-
vided that “the prejudice that would result from such
amendment was apparent.” Feldman v. Am. Memorial Life Ins.
Co., 196 F.3d 783, 793 (7th Cir. 1999); Sanders v. Venture
Stores, Inc., 56 F.3d 771, 773-74 (7th Cir. 1995). Here, the
district court acted well within its discretion in concluding
that Ms. Park’s six-month wait constituted undue delay.
As the district court noted, Ms. Park knew or should have
known of the City’s possible violation of the Act in July
2000—the month in which the City disclosed the contested
documents during discovery. At that time, Ms. Park could
have alleged a violation of the Act and sought money
Nos. 01-1552 & 01-2760 11
damages as well as a preemptive ruling on the admissibil-
ity of the contested documents. Instead, Ms. Park delayed
bringing this claim until the eve of trial, well over six
months after she could have filed the claim. Moreover, it
is apparent that prejudice would have resulted from the
late motion. In particular, the City would have been forced
to prepare a defense to this claim in little under a week’s
time. Such a situation, no doubt, also would have burdened
the district court. It would have been forced to conduct a
hasty hearing on the admissibility of this evidence days
before the trial. We cannot conclude, on this record, that
the district court abused its discretion in denying the mo-
tion to amend the complaint.
B. Sanctions
In the most conclusory manner, Ms. Park also contends
that the district court erred when it failed to impose sanc-
tions on the City for purported abuses of the discov-
ery process. In particular, Ms. Park challenges the district
court’s decision to vacate the judgment on liability against
the City.
A trial court has broad discretion concerning the imposi-
tion of discovery sanctions. See Scaggs v. Consol. Rail Corp.,
6 F.3d 1290, 1295 (7th Cir. 1993). Indeed, it is in “the best
position to determine if a party has complied with its dis-
covery orders.” Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 670
(7th Cir. 1996). Accordingly, we review the district court’s
decision to refrain from imposing discovery sanctions for
an abuse of discretion. See Matei v. Cessna Aircraft Co., 35
F.3d 1142, 1147 (7th Cir. 1994).
We cannot accept Ms. Park’s contention that the dis-
trict court abused its discretion in vacating the entry of judg-
12 Nos. 01-1552 & 01-2760
ment on liability against the City. When the City seeming-
ly failed to comply with a portion of Ms. Park’s discovery
request, the district court promptly levied a severe sanc-
tion against the offending party—the entry of judg-
ment in favor of Ms. Park. Discovery, however, had not
closed at the time the district court took this action.
Upon recognizing this fact, the district court reversed
course, vacated the judgment and provided the City with
an opportunity to comply with the discovery request. This
decision certainly does not constitute an abuse of discre-
tion.
Although the discovery disputes continued well after the
district court’s decision to vacate the entry of judgment, we
simply cannot conclude, on this record, that it abused
its discretion in declining to impose additional sanctions.
Ms. Park undoubtedly filed several motions seeking
to compel the City to produce certain documents. The rec-
ord, however, also contains evidence that the City at-
tempted to comply not only with the original discovery
requests but also with the district court’s orders compel-
ling production of documents. Moreover, the City re-
sponded to numerous discovery requests without incident;
volumes of documents changed hands without interven-
tion from the district court. Although the district court
did not address expressly the requests for sanctions con-
tained in Ms. Park’s final motions to compel, its handling
of these motions during numerous hearings constituted
an implicit response that sanctions were not warranted.
The district court fully considered the parties’ arguments
during these hearings and resolved the discovery dis-
putes. Accordingly, we conclude that the district court did
not abuse its discretion in declining to impose sanctions
on the City.
Nos. 01-1552 & 01-2760 13
C. Adverse Inference Instruction
We next address Ms. Park’s contention that the district
court erred when it declined to give an adverse inference
5
instruction to the jury. In particular, Ms. Park alleges
that the City, in bad faith, intentionally destroyed or lost
portions of the following records: (1) management logs
detailing disciplinary actions in the Thirteenth District; (2)
FERB files for retained PPOs; (3) evaluation forms of
PPOs comparable to Ms. Park; and (4) time and attendance
sheets. Moreover, according to Ms. Park, the City’s destruc-
tion of some of these documents violated an EEOC rec-
6
ord retention regulation, 29 C.F.R. § 1602.14, further war-
5
Ms. Park requested, and the district court declined to give, the
following instruction: “If a party fails to produce evidence, which
is under its control and reasonably available to it and not rea-
sonably available to the adverse party, then you may infer that
the evidence is unfavorable to the party who could have pro-
duced it and did not.” Appellant’s Appendix at 4.
6
The regulation states in pertinent part:
Any personnel or employment record made or kept by an
employer (including but not necessarily limited to re-
quests for reasonable accommodation, application forms
submitted by applicants and other records having to do
with hiring, promotion, demotion, transfer, lay-off or ter-
mination, rates of pay or other terms of compensation, and
selection for training or apprenticeship) shall be preserved
by the employer for a period of one year from the date of
the making of the record or the personnel action involved,
whichever occurs later. In the case of involuntary termina-
tion of an employee, the personnel records of the individual
terminated shall be kept for a period of one year from the
date of termination. Where a charge of discrimination has
been filed, or an action brought by the Commission or the
(continued...)
14 Nos. 01-1552 & 01-2760
ranting the adverse inference instruction. We review a dis-
trict court’s determinations concerning jury instructions
for an abuse of discretion. See Spiller v. Brady, 169 F.3d
1064, 1066 (7th Cir. 1999).
An employer’s destruction of or inability to produce a
document, standing alone, does not warrant an inference
that the document, if produced, would have contained
information adverse to the employer’s case. See Rummery
v. Ill. Bell Tel. Co., 250 F.3d 553, 558 (7th Cir. 2001). Rather,
to draw such an inference, the employer must have de-
stroyed the documents in bad faith. See id.; S.C. Johnson
& Son, Inc. v. Louisville & Nashville R.R. Co., 695 F.2d 253,
258 (7th Cir. 1982). Thus, “[t]he crucial element is not that
evidence was destroyed but rather the reason for the de-
struction.” S.C. Johnson & Son, Inc., 695 F.2d at 258. More-
over, we have stated that a violation of a record retention
regulation “creates a presumption that the missing record[s]
contained evidence adverse to the violator.” Latimore v.
Citibank Fed. Sav. Bank, 151 F.3d 712, 716 (7th Cir. 1998)
(cautioning, however, that the presumption does not at-
tach to inadvertent failures to comply with a regulation). At
the same time, though, we have intimated that, absent bad
faith, a violation of 29 C.F.R. § 1602.14, the EEOC record
retention regulation, would not automatically trigger an
adverse inference. See Rummery, 250 F.3d at 558.
Ms. Park first notes that, during discovery, the City pro-
duced only two management logs from one of the time
6
(...continued)
Attorney General, against an employer under title VII or
the ADA, the respondent employer shall preserve all person-
nel records relevant to the charge or action until final dis-
position of the charge or the action.
29 C.F.R. § 1602.14.
Nos. 01-1552 & 01-2760 15
periods relevant to this litigation, 1997 to 1999. Before the
district court, and again on appeal, the City indicates that,
in good faith, it destroyed all such records relating to events
before April 20, 2000, pursuant to a routine record ex-
pungement policy. The City cannot articulate the precise
dates on which these management logs were destroyed;
however, under department regulations, the management
logs apparently are retained only for three twenty-eight day
periods before expungement. If the CPD followed this
policy, the vast majority of these records would have been
destroyed well before September 1999—the month in which
Ms. Park filed her EEOC charge and thus triggered the
City’s obligation to preserve documents relevant to her
7
discrimination claims. Ms. Park, skeptical of this explana-
7
We cannot accept Ms. Park’s attempt to tie her discrimination
claim to that of a fellow PPO, Officer Cezary Glebocki. Officer
Glebocki filed a claim of discrimination against the City in June
1998 and thus triggered at that time the City’s duty under the
EEOC regulation to preserve documents relevant to his claim.
During the pendency of Officer Glebocki’s claim, but before Ms.
Park filed her charge with the EEOC, the City destroyed numer-
ous documents pursuant to a record retention policy.
Ms. Park contends that the destroyed documents were relevant
to both her and Glebocki’s claims of discrimination and hence
violated the EEOC record retention policy. Consequently, she
continues, this destruction warrants an adverse inference against
the City in her case.
Although both officers filed discrimination claims against the
City, the suits dealt with different issues. In particular, Officer
Glebocki contended that a sergeant in the Thirteenth District filed
frivolous complaint registers against him because of his Polish
nationality. Whatever may be the importance of this officer’s
allegations in his own case, they are not relevant to Ms. Park’s. At
(continued...)
16 Nos. 01-1552 & 01-2760
tion, questions why the City managed to preserve two
logs, both of which documented disciplinary actions taken
against her. However, as the City notes, it retained the
records relating to Ms. Park because the CPD had extended
her probationary period; in essence, the City sought to
preserve the record against Ms. Park should further disci-
plinary problems have occurred during the course of her
employment. We cannot say that, based on this record, the
district court abused its discretion in declining to give
an adverse inference instruction to the jury concerning the
management files.
Next, Ms. Park asserts that the City selectively destroyed
FERB files of other PPOs. In particular, Ms. Park notes
that the City retained only for a two-year period the FERB
files of two non-Korean PPOs investigated, but never
terminated, by the committee. In contrast, the City kept
indefinitely the FERB file of a PPO named Flynn whom the
committee decided to terminate. The issue, however, is
not merely whether documents where destroyed or even
selectively destroyed. Rather, the crucial inquiry concerns
the reason underlying the destruction of the documents.
As the City notes, it retained Flynn’s file precisely because
it terminated him; the document was retained for liabil-
ity purposes. Moreover, the other documents were de-
stroyed before Ms. Park filed her charge of discrimination
in September 1999. Ms. Park offers little in response other
than her own speculation that the records of the retained
PPOs may have indicated that the CPD was more lenient
7
(...continued)
the time of the destruction of the records, she had not filed her
complaint with the EEOC. Therefore, it cannot be inferred that
the City destroyed the documents to conceal adverse information
relating to Ms. Park’s suit.
Nos. 01-1552 & 01-2760 17
towards non-Korean, non-Asian-American officers. The dis-
trict court’s decision to reject this proffer as a basis for
giving an adverse inference instruction does not constitute
an abuse of discretion.
Finally, Ms. Park claims that the City intentionally mis-
placed and destroyed portions of the last two classes of
documents—PPO performance evaluations and time sheets
for officers working in the Thirteenth District. Her argu-
ments, however, are unavailing. Foremost, although Ms.
Park correctly notes that the City destroyed PPO evaluation
forms for the years 1993 to 1997, she fails to mention that
the City expunged these documents in June 1999—before
she filed her complaint with the EEOC. It is apparent that
the City failed to produce certain documents to Ms. Park
including: one of her performance evaluations, a handful
of reviews relating to other PPOs and at least 235 time
and attendance sheets for officers of the Thirteenth District.
However, other than her own speculation, Ms. Park has
failed to adduce evidence that the City, in bad faith, de-
clined to produce these records. Indeed, the City repre-
sented to the district court that, after a diligent search,
it could not locate these records. Simply put, the City lost
these documents. Despite these deficiencies in its produc-
tion of documents, the City did produce evaluations and
time sheets that proved adverse to its case. In particular, it
gave Ms. Park all but one of her evaluations; most of the
reviews contained positive critiques of her performance.
Likewise, the City provided Ms. Park with records in-
dicating that the CPD did not terminate an individual
who had used more medical days than Ms. Park had. If
the City, in fact, was selectively losing documents, seem-
ingly it would have disposed of these records as well. A
finding of bad faith is not compelled on these facts. Accord-
ingly, the district court did not abuse its discretion in
18 Nos. 01-1552 & 01-2760
declining to give an adverse inference instruction to the
jury.
D. Imposition of Costs
Finally, we address Ms. Park’s contention that the district
court erred in assessing roughly $8,000 in costs imposed
upon her pursuant to Federal Rule of Civil Procedure 54(d).
We review the district court’s decision to impose costs
for an abuse of discretion. See Spegon v. Catholic Bishop of
Chicago, 175 F.3d 544, 550 (7th Cir. 1999). However, we note
that, under Rule 54(d), “discretion is narrowly confined
because of the strong presumption created by [this rule]
that the prevailing party will recover costs.” Contreras v. City
of Chicago, 119 F.3d 1286, 1295 (7th Cir. 1997).
Ms. Park’s argument centers on the alleged misconduct
in which the City engaged during discovery. Specifically,
she contends that the City’s activities exacerbated the
assessment against her. Indeed, she submits that the City’s
actions required the district court to refuse the imposition
of costs. Ms. Park is correct that misconduct on the part of
a prevailing party suffices to deny costs. See Contreras, 119
F.3d at 1295. However, this argument is, in essence, the
same argument as the one we already have considered and
rejected in holding that the district court acted within its
discretion in refusing to impose sanctions upon the City.
We shall not revisit that determination. Moreover, in her
brief to this court, Ms. Park failed to note that the district
court did reduce the amount of copying costs it assessed
on her. In particular, the district court “infer[red] that
more timely production of documents during the discovery
phase would have made prior review of the documents
more practicable,” and thus reduced the need for wholesale
copying. R.96 at 5. We find no abuse of discretion in the
Nos. 01-1552 & 01-2760 19
manner in which the district court accounted for the dis-
8
covery disputes in assessing costs on Ms. Park.
Conclusion
We conclude that Ms. Park has failed to raise any claims
that warrant further proceedings in this case. Accordingly,
the judgment of the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
8
In her reply brief, Ms. Park submits that she is unable to pay
the assessment thereby justifying the denial of costs. Ms. Park,
however, failed to raise this contention in her opening brief. As
such, the argument has been waived. See Bobo v. Kolb, 969 F.2d
391, 400 (7th Cir. 1992).
USCA-97-C-006—7-22-02