United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION FOR SANCTIONS
C. YARBROUGH UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Plaintiff Barbara
Marquez's Motion for Sanctions Based on Spoliation of
Evidence, Doc. 76, filed May 30, 2019 and fully briefed July
11, 2019, Docs. 85, 89. Having considered the parties'
arguments and all relevant authority, the Court denies
Plaintiff's Motion for Sanctions.
lawsuit, Plaintiff brings unlawful discrimination claims
against Albuquerque Public Schools and Albuquerque School
Board (collectively “APS”). Doc. 1-2 at 6-12.
Plaintiff alleges that on July 26, 2016 she applied and was
later interviewed by APS for an athletic trainer position at
Volcano Vista High School, but that APS hired a younger,
unqualified male, Enrique Ochoa. Doc. 1-2 at 3-4,
¶¶ 13, 15. Plaintiff had previously filed a lawsuit
against APS for discrimination, which ended in a settlement.
Doc. 1-2 at 3, ¶ 10. She alleges she was passed over for
the athletic trainer position in retaliation for her previous
lawsuit, and that APS discriminated against her on the basis
of age and sex. Doc. 1-2 at 4, ¶ 16.
interviewed for the athletic trainer position with Volcano
Vista principal Valerie Atencio and Athletic Director Ben
Brown. During the interviews of both Plaintiff and Mr. Ochoa,
Ms. Atencio and Mr. Brown used an Athletic Trainer Interview
form. Doc. 76-2 at 65:5-17; Doc. 76-3 at 83:24- 84:6. The
form has thirteen questions, a space for making notations,
and a space to rank the interviewees' answers from 0 to
5. Doc. 76-1. Mr. Brown testified that after he completed the
forms he gave them to Ms. Atencio. Doc. 76-3 at 85:21-23. Ms.
Atencio testified that she discarded the forms around June
2017, roughly ten months after the interviews. Doc. 76-2 at
66:22-67:3. In the present motion, Plaintiff moves for
sanctions against Defendant APS for failure to preserve the
interview forms. The only sanctions Plaintiff requests are
for the Court to impose liability on APS and find that the
discrimination was the proximate cause of Plaintiff's
damages. Doc. 76 at 5. In other words, Plaintiff asks for the
most severe of sanctions, a default judgment. The Court does
not consider whether lesser sanctions would be appropriate
because Plaintiff does not request any.
courts have ‘substantial weaponry' in their arsenal
to shape the appropriate relief for a party's spoliation
of evidence.” Helget v. City of Hays, Kan.,
844 F.3d 1216, 1225-26 (10th Cir. 2017). Such rulings are
reviewed for abuse of discretion. Id. at 1225.
“Among the options, a court may strike witnesses, issue
an adverse inference, exclude evidence, or, in extreme
circumstances, dismiss a party's claims.”
Id. at 1226 (citations 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 Colo., 563 F.3d 1136,
1149 (10th Cir. 2009). “But if the aggrieved party
seeks an adverse inference to remedy the spoliation, it must
also prove bad faith.” Id.; see also Jones
v. Norton, 809 F.3d 564, 580 (10th Cir. 2015)
(“The entry of default judgment or the imposition of
adverse inferences require a showing of bad faith.”).
“Without a showing of bad faith, a district court may
only impose lesser sanctions.” Id.
Plaintiff's motion is timely filed.
first argues that the Court should deny Plaintiff's
motion as untimely. The deadline for the parties to file
motions related to discovery was May 14, 2019. Doc. 60.
Plaintiff filed the current motion on May 30, 2019, the
deadline by which the parties had to file pretrial motions.
Id. Defendant argues that because Plaintiff is
requesting discovery sanctions under Rule 37 - that the Court
render a default judgment against the disobedient party under
Fed.R.Civ.P. 37(b)(2)(A)(vi) - she was required to file her
motion by the discovery motions deadline.
on the other hand, argues that she is not seeking discovery
sanctions under Rule 37 but sanctions under a spoliation of
evidence theory. Doc. 89 at 4. The Tenth Circuit has held
that “plaintiffs must be ‘diligent in the defense
of their own interests' and should seek sanctions under
Federal Rule of Civil Procedure 37 to remedy any prejudice
caused by spoliation.” Turner, 563 at 1149
(citing Mathis v. John Morden Buick, Inc., 126 F.3d
1153, 1156 (7th Cir. 1998)). However, “[w]hen a
plaintiff fails to seek sanctions under Rule 37” she
“‘forecloses access to the substantial weaponry
in the district court's arsenal,' [and] the
plaintiff's only remaining option is to seek sanctions
under a spoliation of evidence theory.” Id.
(citing Mathis, 126 F.3d at 1155). That theory
requires a showing of bad faith. Id.
Plaintiff could have filed this motion as a discovery motion
under Rule 37, she choose to bring her motion under a
spoliation of evidence theory. She therefore was not required
to file her motion by the discovery motions deadline. But
because Plaintiff is pursuing a spoliation theory and not
requesting a lesser sanction available from the Court's
“substantial arsenal, ” she must make a showing
of bad faith. Plaintiff thus cannot obtain default judgment
merely by showing that Defendant had a duty to preserve the
evidence and that Plaintiff was prejudiced by the loss.
Plaintiff has not shown prejudice or bad faith sufficient to
support her requested sanctions.
being turned down for the athletic trainer position,
Plaintiff filed a charge of discrimination with the New
Mexico Department of Workforce Solutions and presented the
charge to the U.S. Equal Employment Opportunity Commission.
Doc. 76-4. On September 16, 2016, the Department sent a copy
of the charge to APS. Docs. 76-5, 76-6. Along with a copy of
the charge, the Department sent APS information on the charge
of discrimination, including a recitation of 29 C.F.R. §
1602.14. Doc. 76-6. Section 1602.14 requires that
“[a]ny personnel or employment record made or kept by
an employer . . . 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.” Section 1602.14 also requires that
“[w]here a charge of discrimination has been filed . .
. against an employer under title VII . . ., the respondent
employer shall preserve all personnel records relevant to the
charge or action until final disposition of the ...