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Marquez v. Albuquerque Public Schools

United States District Court, D. New Mexico

October 30, 2019




         THIS 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.


         In this 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.

         Plaintiff 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.[1]


         “District 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).[2] 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.


         1. Plaintiff's motion is timely filed.

         Defendant 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.

         Plaintiff, 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.

         Although 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.

         2. Plaintiff has not shown prejudice or bad faith sufficient to support her requested sanctions.

         After 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 ...

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