United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
United States of America (Plaintiff or the United States)
filed suit against Defendant Regents of New Mexico State
University (Defendant or NMSU) to enforce the provisions of
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e,
et seq. The United States alleges that Defendant
engaged in pay discrimination against former NMSU employee
Meaghan Harkins (Ms. Harkins) in violation of Title VII.
Because Defendant destroyed certain documents the United
States sought to obtain through discovery, the United States
has moved to exclude evidence at trial as a sanction for
spoliation. Defendant responds that no sanction is
warranted.The Court will grant the Motion in part and
deny the Motion in part.
alleges that because of Ms. Harkins' gender, Defendant
paid her less than it paid two male employees in similar
positions. The factual background of this claim is set forth
in the Court's Memorandum Opinion and Order denying
summary judgment (Doc. No. 259), and the Court will not
repeat it here other than as is relevant to Plaintiff's
spoliation claim. Defendant hired two male assistant coaches
in August 2007, Mr. Harkins and Mr. Fister. Doc. No. 141, Ex.
A. Defendant had interviewed Ms. Harkins for the position
filled by Mr. Fister, but it did not hire her at that time.
Doc. No. 187, Ex. 5. Ms. Harkins began volunteering with
Defendant's track and field program in January 2008, and
in March 2008 she was hired in a paid position. Doc. No. 141,
Ex. B. Ms. Harkins remained employed by Defendant until
December 2011. Doc. No. 187, Ex. 5. After her resignation,
Ms. Harkins filed a charge alleging that Defendant had
discriminated against her by paying her less than the male
coaches. Doc. 146, Ex. E.
received notice of Ms. Harkins' gender-based
discrimination charge from the EEOC on May 15, 2012. Doc. No.
191, Ex. 1; Doc. No. 214, Ex. 1. The EEOC requested specific
documents and information from Defendant, but also informed
Defendant that the requested items were not necessarily all
that would be required to resolve the charge. Doc. No. 214,
Ex. 2. The EEOC instructed Defendant to retain all personnel
records that were relevant to the charge until final
disposition of the matter, which it defined as the
termination of litigation or the expiration of the period in
which suit could be filed. Doc. No. 236, Ex. 3. The
recruitment files for Ms. Harkins,  Mr. Harkins, and Mr. Fister
were subject to destruction in 2011 or 2012 under NMSU's
normal operating procedures. Doc. No. 191, Ex. 14. However,
these files were still in Defendant's possession when it
received notice of the EEOC charge and of its duty to retain
documents. Doc. No. 214, Ex. 5.
August 2, 2013, the EEOC issued a Letter of Determination
informing Defendant that it had found reasonable cause to
believe that Defendant had discriminated against Ms. Harkins
due to her gender. Doc. No. 146, Ex. F. Efforts by the EEOC
to negotiate a settlement with Defendant were unsuccessful.
Doc. No. 146, Ex. G. On May 13, 2014, the EEOC notified
Defendant that the charge was being sent to the Department of
Justice (DOJ) for possible litigation. Id.
about October 10, 2014, Defendant destroyed the recruitment
files for Ms. Harkins, Mr. Fister, and Mr. Harkins. Doc. No.
214, Ex. 5. DOJ notified Defendant on January 7, 2015, that
it was beginning investigation of the charge. Doc. No. 191,
Ex. 6. It conducted interviews and requested information and
documentation, noting Defendant's obligation to retain
all relevant documents even if DOJ had not requested that
they be produced. See Doc. No. 191, Ex. 7-Ex. 11.
Certain requested information which may have been contained
in the recruitment files was unavailable to DOJ because the
files had been destroyed prior to the start of DOJ's
charge of discrimination has been filed with EEOC against an
employer, the employer must preserve all relevant personnel
records until the matter has been resolved. 29 C.F.R. §
1602.14. Personnel records “include[e] but [are] not
necessarily limited to requests for reasonable accommodation,
application forms submitted by applicants and other records
having to do with hiring, promotion, demotion, transfer,
lay-off or termination, rates of pay or other terms of
compensation, and selection for training or
“‘[P]ersonnel records relevant to the
charge,' . . . would include personnel or employment
records relating to the aggrieved person and to all other
employees holding positions similar to that held . . . by the
aggrieved person . . ..” Id. These documents
must be preserved until “the date of expiration of the
statutory period within which the aggrieved person may bring
an action in a U.S. District Court or, where an action is
brought against an employer either by the aggrieved person,
the Commission, or by the Attorney General, the date on which
such litigation is terminated.” Id.
includes the intentional or negligent destruction or loss of
tangible and relevant evidence which impairs a party's
ability to prove or defend a claim.” Browder v.
City of Albuquerque, 209 F.Supp.3d 1236, 1243 (D.N.M.
2016) (internal quotation marks omitted). “Spoliation
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 v. Pub. Serv. Co. of Colorado, 563 F.3d 1136,
1149 (10th Cir. 2009) (quoting Burlington N. & Santa
Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir.
2007)). “‘[T]he general rule is that bad faith
destruction of a document relevant to proof of an issue at
trial gives rise to an inference that production of the
document would have been unfavorable to the party responsible
for its destruction.'” 103 Investors I, L.P. v.
Square D Co., 470 F.3d 985, 988 (10th Cir. 2006)
(quoting Aramburu v. Boeing Co., 112 F.3d 1398 (10th
Cir.1997)). “Mere negligence in losing or destroying
records” will not justify an adverse inference
instruction, but “the [C]ourt . . . may impose lesser
sanctions absent a finding of bad faith.” Henning
v. Union Pac. R.R. Co., 530 F.3d 1206, 1220 (10th Cir.
2008). “‘The district court has discretion to
fashion an appropriate remedy depending on the culpability of
the responsible party and whether the evidence was relevant
to proof of an issue at trial.'” Id.
(quoting Estate of Trentadue v. United States, 397
F.3d 840, 862 (10th Cir. 2005)); see also 103 Investors
I, L.P., 470 F.3d at 989 (upholding the district
court's exclusion of evidence as a sanction for
spoliation without a showing of bad faith).
United States contends that the recruitment files for Ms.
Harkins, Mr. Harkins, and Mr. Fister were relevant personnel
records that Defendant was required to retain until the
termination of this litigation. Plaintiff asserts that
Defendant's October 2014 destruction of these files
“prejudices the United States by depriving it of
contemporaneous evidence of NMSU's evaluation of the
three assistant coaches.” Mot. at 8. As a sanction, the
United States requests that the Court exclude “any
evidence that, in setting Mr. Fister's and Mr.
Harkins' salaries, [NMSU] considered any education or
experience beyond what is included in the coaching experience
sections of their resumes.” Mot. at 13. Plaintiff
argues that the destroyed recruitment files contained the
only contemporaneous record of salary setting decisions for
the three assistant coaches. It maintains that prohibiting
NMSU from presenting any evidence that it considered
information other than that included in the coaching
experience section of the resume is an appropriate sanction
because the United States has no records of the
decision-making process with which to challenge such
argues that the recruitment files are not relevant because
(1) any important documents, such as resumes and cover
letters, were transferred to the coaches' personnel files
and were produced in discovery; (2) salaries were set based
on the budget and NMSU relied on education and experience
only to determine if a deviation from the budget was
required; (3) the files contained information used in hiring,
not salary setting, and (4) Ms. Harkins may not have had a
standard recruitment file because she was not hired through a
difficult to determine the exact relevancy of the information
contained in destroyed files because their contents are
unknown. However, the recruitment files clearly fall within
the category of “relevant personnel records” as
defined by 29 C.F.R. § 1602.14, and any documents
contained within the files would have been relevant to hiring
decisions made regarding the three coaches. Further, NMSU
itself argued that these files contained relevant salary
comparisons when it sought dismissal based on laches.
See Reply in Support of Defendant's Motion to
Dismiss, ¶ 9 (Doc. No. 226). Accordingly, the Court
finds that the recruitment files are relevant and that
Defendant had a duty to preserve these records.
so, NMSU asserts that the United States has not been
prejudiced by the destruction because the education and
experience Defendant was aware of and relied on to set the
coaches' salaries were listed on their resumes and did
not come from “some extraneous source.”
See Resp. at 10-11. However, there is no substitute
for the contemporaneous salary comparisons and any notes
these recruitment files may have contained, and the Court
therefore finds that Plaintiff has been prejudiced by the
destruction of this evidence. Of course, the degree of
prejudice is uncertain when the particular documents that
were destroyed are not identifiable, but the Court concludes
that a properly tailored evidentiary sanction would ...