EEOC v. JetStream Ground Services

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 28, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff - Appellant,
and
SAFIA ABDULLE ALI; SAHRA BASHI No. 17-1003
ABDIRAHMAN; HANA BOKKU;
SADIYO HASSAN JAMA; SAIDA
WARSAME, a/k/a Amino Warsame,
Intervenor Plaintiffs - Appellants,
v.
JETSTREAM GROUND SERVICES,
INC.,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:13-CV-02340-CMA-KMT)
_________________________________
Gail S. Coleman (James L. Lee, Deputy General Counsel, Jennifer S. Goldstein,
Associate General Counsel, and Elizabeth E. Theran, Acting Assistant General Counsel,
with her on the briefs), Equal Employment Opportunity Commission, Washington, D.C.,
for Plaintiff-Appellant.
Diane S. King and Hunter A. Swain, King & Greisen, LLP, Denver, Colorado, on the
briefs for Plaintiff-Intervenor-Appellants.
Ryan C. Brenton, Brenton Legal P.A., Fort Lauderdale, Florida, for Defendant Appellee.
_________________________________
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
A jury rejected an employment-discrimination claim against JetStream Ground
Services, Inc. filed by several Muslim women and the Equal Employment Opportunity
Commission (EEOC) (collectively, Plaintiffs1), who alleged that JetStream discriminated
against the women on religious grounds by refusing to hire them because they wore
hijabs. Plaintiffs’ sole argument on appeal is that the district court abused its discretion
by refusing to impose a sanction on JetStream—either excluding evidence or instructing
the jury that it must draw an adverse inference—because it disposed of records contrary
to a federal regulation purportedly requiring their preservation. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm. Plaintiffs’ argument that the exclusion sanction
should have been applied was waived in their opening statement at trial. And the district
court did not abuse its discretion in refusing to give an adverse-inference instruction after
Plaintiffs conceded that destruction of the records was not in bad faith.
I. BACKGROUND
In October 2008 JetStream was selected by United Airlines to clean aircraft at
Denver International Airport. To assist in staffing for the upcoming contract, JetStream
1
The EEOC and the individual Plaintiffs (as a group) have been represented by separate
counsel in district court and on appeal. But as far as we can tell, their positions on all
issues have been fully aligned, and the individual Plaintiffs, rather than submitting a
separate brief, have stated that they join the EEOC’s brief on appeal. We will therefore
not distinguish between them in discussing events in district court or issues on appeal.
2
scheduled a job fair for employees of AirServ Corp., the company that was continuing to
do the work until JetStream’s contract began. The individual Plaintiffs were employed
by AirServ and participated in the job fair but were not hired, allegedly because of
religious discrimination by JetStream based on their wearing hijabs.
Plaintiffs’ theory of the case has been that although JetStream’s dress policy was
silent regarding head coverings, including hijabs, the co-owner of JetStream, David
Norris, did not want to hire women who insisted on wearing hijabs at work. At trial the
individual Plaintiffs testified to discriminatory statements made by Norris, and Plaintiffs
offered supporting testimony from two former JetStream administrative managers who
had since been terminated. One testified that she was instructed by JetStream’s human-
resources department to tell applicants that head coverings were not permitted, even for
religious reasons. The other testified that at the job fair Norris said that he would not
tolerate Muslim women wearing hijabs at work. Norris and other JetStream employees
denied that the company opposed wearing hijabs on the job.
For the first several years of the controversy, JetStream asserted that the decisions
not to hire the individual Plaintiffs were based on their applications and interviews. But a
year into discovery, JetStream changed its position, arguing instead that the hiring
decisions were based on the recommendations of Arnold Knoke, a supervisor at AirServ.
JetStream claimed the following: Two of its employees, Frank Austin and Gail
Cadorniga, met with Knoke on November 5, 2008, to hear Knoke’s recommendations on
which AirServ employees to hire. During the meeting Austin and Cadorniga marked
which employees Knoke recommended on an AirServ employee schedule provided by
3
Knoke that contained the names of all the AirServ employees. Austin wrote the names
on a piece of paper; and promptly after the meeting Cadorniga obtained the phone
numbers for the recommended persons from the applications. Cadorniga then entered the
information into an Excel spreadsheet, which she saved on her laptop and a flash drive.
Later that day the names of the successful applicants were posted in the break room for
AirServ employees. Cadorniga neither added to the list anyone not recommended by
Knoke, nor did she remove anyone from his recommended list. JetStream claims that
Knoke’s recommendations, and not any discriminatory animus, drove its hiring decisions.
Plaintiffs requested 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 Cadorniga
nor Austin 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. As for
the earlier (November 5) version of the Excel spreadsheet, it was apparently updated as
information was modified or added, although it is undisputed that the names on the
November 10 spreadsheet are identical to the names posted in the employees’ break room
on November 5.
In a pretrial motion, Plaintiffs sought spoliation sanctions against JetStream. They
claimed that JetStream’s 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.
4
(The first claims were filed against JetStream on February 5, 2009).2 Plaintiffs argued
that disposal of the handwritten notes deprived them of the opportunity to effectively
rebut JetStream’s defense because Plaintiffs were unable to compare the list of hires to
the original documents from the meeting with Knoke and determine whether any names
were added or removed after the receipt of Knoke’s recommendations. Any changes,
they argue, would indicate that someone (Plaintiffs suggest Norris) altered those
recommendations, perhaps for discriminatory purposes.
Plaintiffs requested two alternative sanctions for the alleged spoliation: exclusion
of testimony by JetStream’s witnesses about the list of Knoke’s recommendations, or an
instruction to the jury that they should infer that the missing documents were harmful to
JetStream. At the pretrial hearing the district court reserved ruling on the motion, stating
that it needed to “hear the evidence at trial.” Aplt. App. at 234. It said that it could not
2
The pertinent part of the regulation states:
Any personnel or employment record made or kept by an employer
(including but not necessarily limited to . . . application forms submitted by
applicants and other records having to do with hiring . . . ) 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. . . . When a charge of discrimination has been filed, or an action
brought by the Commission or the Attorney General, against an employer
under title VII, the ADA, or GINA, the respondent employer shall preserve
all personnel records relevant to the charge or action until final disposition
of the charge or the action.
29 C.F.R. § 1602.14.
5
determine at that point whether JetStream acted in bad faith in discarding the documents
or whether Plaintiffs would be prejudiced.3
At trial, Plaintiffs did not renew their request to exclude evidence of the Knoke
list. On the contrary, during her opening statement the counsel for the EEOC, without
objection from any other attorney, extensively discussed the list and JetStream’s assertion
that it relied upon it. Plaintiffs did, however, submit a proposed instruction telling the
jury to assume that the destroyed list included recommendations that the individual
Plaintiffs “were good workers and that they should be hired.” Aplt. App. at 184. After a
14-day trial, the jury found for JetStream. Plaintiffs unsuccessfully moved for a new trial
under Fed. R. Civ. P. 59, in part based on the district court’s spoliation rulings.
II. DISCUSSION
We review for abuse of discretion both the district court’s denial of spoliation
sanctions and its denial of the motion for a new trial. See Turner v. Pub. Serv. Co. of
Colo.¸ 563 F.3d 1136, 1150 (10th Cir. 2009) (spoliation); Henning v. Union Pac. R. Co.,
530 F.3d 1206, 1216 (10th Cir. 2008) (new trial). For purposes of this appeal we will
assume without deciding that JetStream did violate 29 C.F.R. § 1602.14 by failing to
preserve records of Knoke’s recommendations. We analyze Plaintiffs’ requested
spoliation sanctions in turn.
3
Plaintiffs’ opening brief on appeal also complains that JetStream did not produce
emails from Knoke regarding his recommendations. But they never requested spoliation
sanctions based on that alleged failure to produce.
6
A. Preclusion of Testimony
Plaintiffs argue that JetStream should have been precluded from testifying about
Knoke’s possible recommendations. But they never argued at trial that such evidence
should be excluded. Although they filed a pretrial motion to exclude the evidence as a
spoliation sanction, the district court deferred ruling on the motion. Only when the court
rules definitively on the record before trial is the party seeking to exclude evidence
excused from renewing the objection at trial. See Fed. R. Evid. 103(b); McEwen v. City
of Norman, 926 F.2d 1539, 1543–44 (10th Cir. 1991). Although the district court’s
decision could still be reviewed for plain error, see Nat’l Envtl. Serv. v. Ronan Eng., 256
F.3d 995, 1001 (10th Cir. 2001), Plaintiffs have not sought plain-error review, so we do
not undertake that analysis, see Richison v. Ernest Group, Inc., 634 F.3d 1123, 1130–31
(10th Cir. 2011).
Plaintiffs try to justify their failure to object at trial by contending that the district
court had already ruled that the evidence was to be presented to the jury at trial. They
point to the court’s statement at the spoliation hearing that it could not rule because it
needed to “hear the evidence at trial.” Aplt. App. at 234. But that is a strained
interpretation of the court’s statement, an interpretation that contradicts both the court’s
language (“I am reserving ruling on the Motion for Spoliation of Evidence,” Aplt. App.
at 234) and standard practice in litigation. If Plaintiffs wished to pursue at trial the
exclusion of the Knoke evidence, they should have requested the court to forbid
JetStream from presenting any such evidence until Plaintiffs had an opportunity to proffer
evidence and argument (outside the presence of the jury) against admission. There can
7
be little doubt 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 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 prejudiced Plaintiffs. This was a reasonable course for the court to take. There is
no merit to the contention in Plaintiffs’ appellate brief, undeveloped and without any
citation to authority, that the district court abused its discretion in reserving decision on
the spoliation motion.
Moreover, Plaintiffs waived this argument by discussing the Knoke list at length
in their opening statement. See United States v. Chavez, 229 F.3d 946, 952 (10th Cir.
2000) (“It is widely recognized that a party who raises a subject in an opening statement
‘opens the door’ to admission of evidence on that same subject by the opposing party.”);
see also Vehicle Mkt. Research, Inc. v. Mitchell Int’l., Inc., 839 F.3d 1251, 1257 (10th
Cir. 2016) (“‘Generally, a party introducing evidence cannot complain on appeal that the
evidence was erroneously admitted.’” (quoting Ohler v. United States, 529 U.S. 753, 755
(2000))). Plaintiffs argue that this general rule does not apply to them, because “the court
affirmatively told the parties that they should discuss the evidence.” Aplt. Reply at 18.
As previously noted, however, that is a distortion of the court’s remarks.
B. Adverse-Inference Instruction
As a general rule, “[s]poliation sanctions are proper when (1) a party has a duty to
preserve evidence because it knew, or should have known, that litigation was imminent,
and (2) the adverse party was prejudiced by the destruction of the evidence.” Turner, 563
8
F.3d at 1149 (internal quotation marks omitted). The only sanction other than exclusion
that was sought by Plaintiffs was that the district court give the jury an adverse-inference
instruction.4 They unsuccessfully tendered the following proposed instruction:
In this case, you have heard testimony about a list of employee
recommendations allegedly given to JetStream by AirServ in 2008. The
court has previously found that JetStream intentionally lost or destroyed
this list. Accordingly, you should infer that had the list been produced at
trial for you, the contents of the list would have been unfavorable to
JetStream and would have been favorable to the Plaintiffs. Specifically,
you are to assume that the destroyed list of recommendations included
recommendations that [the individual Plaintiffs] were good workers and
that they should be hired by JetStream.
Aplt. App. at 184. The central debate between the parties on appeal is whether such an
instruction is proper absent a court finding of bad faith by the party that possessed the
records that were lost or destroyed.
There is some tension in precedents of this court. The more recent precedents
insist on a finding of bad faith before giving an adverse-inference instruction. An earlier
case, however, suggests that such a finding is unnecessary. We begin by discussing the
more recent opinions. The reasoning in those opinions, supported by strongly persuasive
authority, might one day convince this court, acting en banc, to overrule the earlier
precedent. But it is unnecessary to resolve this matter now because, under the facts of
this case, our earlier decision does not require an adverse-inference instruction.
4
Although Plaintiffs contend on appeal that the district court was required to impose
some sort of sanction, it had no obligation to impose a sanction not sought by a party.
The only case cited by Plaintiffs in support of its contention, 103 Investors I, L.P. v.
Square D Co., 470 F.3d 985, 988–89 (10th Cir. 2006), said only that the sanction
imposed by the court in that case was appropriate.
9
In Aramburu v. Boeing Co., 112 F.3d 1398, 1401 (10th Cir. 1997), the plaintiff
brought a Title VII discrimination claim challenging his firing. The employer contended
that he was fired for excessive absenteeism. See id. at 1402. Portions of the plaintiff’s
attendance record, however, had been lost, and the plaintiff sought an adverse-inference
instruction that the missing records would have been unfavorable to the company’s
contention. See id. at 1407. We held that the plaintiff was not entitled to an instruction
because the evidence showed that the loss of the documents was inadvertent. We wrote:
“The adverse inference must be predicated on the bad faith of the party destroying the
records. Mere negligence in losing or destroying records is not enough because it does
not support an inference of consciousness of a weak case.” Id. (citations omitted).
We followed Aramburu in Turner. The plaintiff in Turner, 563 F.3d at 1140–42,
brought a Title VII claim of gender discrimination after being denied employment. The
employer defended its decision on the ground that her interviews had been scored lower
than any of those hired. See id. But some of the notes of the interviewers had been lost.
See id. at 1148–49. The plaintiff, just as Plaintiffs in this case, argued that the employer
had violated 29 C.F.R. § 1602.14 and she was therefore entitled to an adverse-inference
instruction. See id. We rejected the argument on the ground that there was no evidence
of bad faith, saying, “[I]f the aggrieved party seeks an adverse inference to remedy the
spoliation, it must also prove bad faith.” Id. at 1149.
Our bad-faith requirement finds strong support in an explanation by the Advisory
Committee to the Federal Rules of Civil Procedure for the same requirement in a virtually
identical context. Fed. R. Civ. P. 37(e) governs the imposition of sanctions when
10
“electronically stored information that should have been preserved in the anticipation or
conduct of litigation is lost because a party failed to take reasonable steps to preserve it,
and it cannot be restored or replaced through additional discovery.” Among the sanctions
authorized by the rule are that the court may “(A) presume that the lost information was
unfavorable to the party; [or] (B) instruct the jury that it may or must presume the
information was unfavorable to the party.” Fed. R. Civ. P. 37(e)(2). But those sanctions
can be imposed “only upon finding that the party acted with the intent to deprive another
party of the information’s use in the litigation.” Id. The advisory committee note to this
provision provides a commonsense explanation for the bad-faith requirement:
Adverse-inference instructions were developed on the premise that a party’s
intentional loss or destruction of evidence to prevent its use in litigation
gives rise to a reasonable inference that the evidence was unfavorable to the
party responsible for loss or destruction of the evidence. Negligent or even
grossly negligent behavior does not logically support that inference.
Information lost through negligence may have been favorable to either
party, including the party that lost it, and inferring that it was unfavorable
to that party may tip the balance at trial in ways the lost information never
would have.
Fed. R. Civ. P. 37 (Advisory Committee Note to Subdivision (e)(2) (2015 Amendment)).
We see no reason why common sense should not also guide the imposition of an adverse-
inference instruction for violation of § 1602.14. For the court to give an adverse-
inference instruction when the violation of the regulation was not in bad faith “may tip
the balance at trial in ways the lost information never would have.” Id.
In this case, Plaintiffs conceded during closing argument at trial that the loss or
destruction of the documents from the Knoke meeting was not in bad faith. See Aplee.
App. at 1033 (“[W]e are not arguing that Ms. Cadorniga or Mr. Austin intentionally
11
destroyed these lists. They are lists from the supposed alleged meeting with Mr. Knoke.
We are not alleging that they intentionally destroyed those to hurt the litigation. That is
not what we are arguing.”). Therefore, the court’s failure to give an adverse-inference
instruction was not an abuse of discretion.
Plaintiffs contend, however, that we are bound by our precedent in Hicks v. Gates
Rubber Co., 833 F.2d 1406, 1408 (10th Cir. 1987), which, of course, cannot be overruled
by later panel decisions of this court, see Green Sol. Retail, Inc v. United States, 855 F.3d
1111, 1115 (10th Cir. 2017). Although Hicks did not concern a jury instruction, it
strongly suggests that in any trial a violation of § 1602.14, even if not in bad faith, creates
a presumption about which the factfinder should be informed. Nevertheless, as we
proceed to explain, Hicks is distinguishable on the facts of this case, so we comply with
the post-Hicks precedents of this court discussed above.
Ms. Hicks was a black female security guard who brought a suit under Title VII
alleging that she was subjected to racial and sexual harassment and retaliatory discharge.
See Hicks, 833 F.2d at 1408. In a bench trial the district court had granted judgment for
the employer. We reversed in part and remanded for further proceedings. In the ruling
relevant here, we held that the selective destruction of some of Ms. Hicks’s personnel
records violated 29 C.F.R. § 1602.14. See id. at 1418–19. And even though the evidence
did not support a finding of bad faith in the destruction, see id. at 1419 n.5, we stated that
because the employer “violated § 1602.14 by destroying the personnel records, Hicks is
entitled to the benefit of a presumption that the destroyed documents would have
12
bolstered her case.” Id. at 1419. The employer argued that the record rebutted the
presumption, but we left that to be determined by the district court on remand. See id.
Hicks does not govern here for at least two reasons. First, Plaintiffs’ proffered
instruction did not permit the jury to decide that the evidence rebutted the presumption.
Second, any presumption in this case was rebutted by the evidence at trial. Our opinion
in Hicks does not address what quantum of evidence is necessary to rebut the
presumption. We therefore turn to Fed. R. Evid. 301, which governs in the absence of a
contrary command in a federal statute or the federal rules. It states:
In a civil case, unless a federal statute or these rules provide otherwise, the
party against whom a presumption is directed has the burden of producing
evidence to rebut the presumption. But this rule does not shift the burden
of persuasion, which remains on the party who had it originally.
See Presbyterian/St. Luke’s Med. Ctr. v. N.L.R.B., 653 F.2d 450, 456 (10th Cir. 1981)
(holding that the National Labor Relations Board had acted contrary to Rule 301 by using
a Board-created presumption to shift the burden of persuasion, rather than the burden of
production). 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. See Middleton v. Stephenson, 749 F.3d 1197, 1200
(10th Cir. 2014) (“But that presumption is a rebuttable one, and the party seeking to rebut
. . . the presumption need only produce sufficient evidence suggesting [the opposite of
the presumed fact]; the party need not prove it. . . . And if a party successfully rebuts the
presumption, it disappears from the case, leaving us at square one . . . .”);
Presbyterian/St. Luke’s, 653 F.2d at 455 (“In those presumptions [controlled by Fed.
13
R. Evid. 301], the presumption disappears upon introduction of evidence sufficient to
sustain a finding of the nonexistence of the presumed fact.” (internal quotation marks
omitted)).5
Thus, the Hicks presumption required no more from JetStream than to produce
evidence that the information destroyed was not favorable for Plaintiffs. And JetStream
did so—Gail Cadorniga testified that she did not add anyone to the Knoke list, nor did
she remove from the list any person he recommended. See Aplee. App. at 733. She
further testified that the women in this case were not on the list because Knoke did not
recommend them. See id. at 737–38. Given this evidence, proper application of
Rule 301 required the district court to reject an instruction stating the Hicks presumption.
The district court did not abuse its discretion in rejecting Plaintiffs’ requests for
spoliation sanctions or denying the motion for new trial based on the failure to impose
such sanctions.
III. CONCLUSION
We AFFIRM the judgment of the district court.
5
It may be helpful to point out that the advisory committee notes to Rule 301 can be
misleading if not read carefully. The rule adopted by Congress is not the one submitted
in the 1972 proposed rules, or even the rule proposed by the House of Representatives.
Rather, it was the rule first set forth in a Senate amendment, which is discussed in the
final paragraphs of the notes on the 1974 enactment.
14