United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING PLAINTIFF VIVIAN
VASSER'S MOTION FOR SPOLIATION OF EVIDENCE AND
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.
case involves an employment discrimination action brought by
Plaintiff, Vivian Vasser, against David Shulkin in his
capacity as Secretary of the United States Department of
Veterans Affairs (“VA”). Ms. Vasser claims that
the VA discriminated and retaliated against her when it
failed to promote her several times over the course of three
years. The matter now comes before the Court on Ms.
Vasser's Motion for Spoliation of Evidence and Sanctions
(“Pl.'s Mot.”), ECF No. 56. For the reasons
set forth below, that motion is GRANTED.
September 2008, Ms. Vasser applied for a position as a Deputy
Regional Manager for the Readjustment Counseling Service
(“RCS”) at the VA in Bay Pines, Florida under
Vacancy Announcement No. MPA 08-351 (the “2008
Vacancy” or “2008 Position”). Second Am.
Compl. (“SAC”) ¶ 18, ECF No. 19. According
to Ms. Vasser, the former Regional Manager responsible for
selecting a candidate wanted to hire her, but was unable to
get the necessary approval from Dr. Alfonso Batres, the
former chief of RCS. SAC ¶ 18. Thus, instead of
selecting Ms. Vasser, the vacancy was canceled. SAC ¶
18. A few months later, in April 2009, that very same
position was advertised again, this time under Vacancy No.
2009-196-AA (the “2009 Vacancy” or “2009
Position”). SAC ¶ 19. Ms. Vassar once again
applied for the position, but ultimately someone else was
selected. See SAC ¶ 21-28.
February 2010, Ms. Vasser filed a formal Equal Employment
Opportunity (“EEO”) Complaint in which she
alleged that her non-selection for the 2009 Position was
discriminatorily motivated. See Mot. Dismiss, Ex.
13, ECF No. 21-5. In an attachment, Ms. Vasser described the
history of her non-selection, including how she had
previously been offered the 2008 Position before it was later
canceled and re-advertised. See Def.'s Partial
Mot. Dismiss, Ex. 13, ECF No. 21-5. The VA's Office of
Resolution Management (“ORM”) accepted Ms.
Vasser's EEO Complaint for investigation and further
processing, but limited the investigation solely to the 2009
Vacancy. See Def.'s Partial Mot.
Dismiss, Ex. 15, ECF No. 21-5. In June 2010, after Ms. Vasser
complained that ORM had failed to accept her non-selection
claim for the 2008 Vacancy, ORM informed her that any
non-selection claim that she was sought to assert relating to
the 2008 Vacancy must be dismissed because it was
untimely. See Def.'s Partial Mot.
Dismiss, Ex. 14, ECF No. 21-5. Thus, ORM did not conduct a
separate investigation into Ms. Vasser's non-selection
under that vacancy announcement. Winston Johnson Decl. ¶
even despite the dismissal, both the EEO investigator and Ms.
Vasser apparently viewed the facts surrounding the 2008
Vacancy to be relevant to her non-selection claim for the
2009 Vacancy. Indeed, the EEO investigator issued questions
to relevant VA personnel, including Dr. Batres and a human
resources representative, inquiring about the 2008 Vacancy
and specifically linked it to the investigation of the 2009
Vacancy. See Pl.'s Mot., Ex. 2. Likewise, in
November 2010, Ms. Vasser propounded her own interrogatories
and document requests relating to the 2008 Vacancy.
See Pl.'s Mot., Ex. 3, ECF No. 56-1. Counsel for
the VA, however, refused to address or provide the discovery
that Ms. Vasser requested because ORM had dismissed her 2008
Vacancy claim as untimely. See Pl.'s Mot., Ex.
4, ECF No. 56-1. Indeed, agency counsel suggested that the
discovery was “irrelevant an[d] immaterial to the
subject claim.” Pl.'s Mot., Ex. 4; Pl.'s Mot.
Ex. 5, ECF No. 56-1. Although Ms. Vasser did not seek to
compel responses to her discovery requests, see
Pl.'s Reply at 13, in her correspondence with agency
counsel, she continued to maintain that her prior
non-selections were relevant to “rebut any proffer that
the agency possessed a legitimate basis for its non-promotion
of Ms. Vasser, ” especially given “Dr.
Batres's role in each of the non-selections,
” Pl.'s Reply, Ex. 22, ECF No. 65-1 (emphasis in
Ms. Vasser filed suit in this Court alleging discrimination
and retaliation stemming from her non-selection for ten
separate vacancies, including both the 2008 Vacancy and the
2009 Vacancy. See First Am. Compl., ECF No. 5. Ms.
Vasser again propounded discovery requests on Defendant and
again sought information and documents relating to each of
her prior non-selections. See Pl.'s Mot., Ex. 6,
ECF No. 56-1. Defendant objected to the discovery on the
grounds that some of the claims, including the claim
regarding the 2008 Vacancy, was the subject of a partial
motion to dismiss. See Pl.'s Mot., Ex. 6. Ms.
Vasser protested Defendant's objections, see
Pl.'s Mot. Ex. 7, ECF No. 56-1, and eventually brought
the issue before the Court on September 28, 2016. After
hearing argument from counsel, the Court ordered that the
Secretary produce the documents that Ms. Vasser had
requested. See Hr'g Tr. at 13:15-17 (Sept. 28,
2016); Minute Order (Sept. 28, 2016). However, rather than
produce documents relating to the 2008 Vacancy, the Secretary
provided Ms. Vasser with a declaration from a human resources
representative stating that she was unable to locate any
documents other than the vacancy announcement and that, under
the VA's Record Control Schedule, any documents relating
to that vacancy should have been previously destroyed.
See Pl.'s Mot., Ex. 8 ¶¶ 6-9. A later
deposition of that representative revealed that this
destruction would have happened in January 2011. Dep.
Rachelle Seybold at 43:12-44:5.
December 2016, the Court issued an opinion dismissing Ms.
Vasser's non-selection claim for the 2008 Vacancy because
her EEO contact regarding that claim was indeed untimely.
See Mem. Op., ECF No. 50. The Court, however, made
clear that this decision did not mean that the failure to
promote Ms. Vasser to the 2008 Vacancy was irrelevant to her
claim concerning the 2009 Vacancy. See Mem. Op. at
April 18, 2017, Ms. Vasser filed the instant motion for
spoliation sanctions pursuant to Rule 37 of the Federal Rules
of Civil Procedure. See Pl.'s Mot. Ms. Vasser
requests adverse findings of fact, appropriate inferences
related to this evidence and, if appropriate, a missing
evidence jury instruction and attorney fees. Thereafter, on
October 12, 2017, the Court heard argument from both parties
on the motion and ultimately requested further briefing from
the parties, which the parties timely submitted for the
has a duty to preserve potentially relevant evidence whenever
“litigation is reasonably foreseeable.”
Gerlich v. U.S. Dep't of Justice, 711 F.3d 161,
170 (D.C. Cir. 2013); see also Shepherd v. Am. Broad.
Cos., 62 F.3d 1469, 1481 (D.C. Cir. 1995) (a party to
litigation has “an obligation to preserve and also not
to alter documents it knew or reasonably should have known
were relevant . . . if it knew the destruction or alteration
of those documents would prejudice” an opponent.).
“A party that fails to preserve evidence ‘runs
the risk of being justly accused of spoliation'-defined
as ‘the destruction or material alteration of evidence
or the failure to preserve property for another's use as
evidence in pending or reasonably foreseeable
litigation'-and find itself the subject of
sanctions.” Zhi Chen v. District of Columbia,
839 F.Supp.2d 7, 12 (D.D.C. 2011) (quoting D'Onofrio
v. SFX Sports Group, Inc., No. 06-0687, 2010 WL 3324964,
at *5 n.5 (D.D.C. Aug. 24, 2010)). “The sanctions
available for the destruction of documents or evidence with
notice of their potential usefulness in litigation may
include the assessment of fines or attorneys' fees and
costs, the preclusion of certain lines of argument that might
have been advanced by the culpable party, and/or the issuance
of an instruction informing jurors that they may draw an
adverse inference from the spoliator's actions.”
Id. “A court generally imposes such sanctions
in the exercise of its inherent authority ‘to manage
[its] own affairs so as to achieve the orderly and
expeditious disposition of cases.'” Id.
(quoting Young v. Office of U.S. Senate Sergeant at
Arms, 217 F.R.D. 61, 65 (D.D.C. 2003)). However,
“[t]hat authority ‘must be exercised with
restraint and discretion.'” Id.
“Moreover, because the overriding purpose of the
inherent power is ‘to achieve the orderly and
expeditious disposition of cases, ' the use of this power
should reflect our judicial system's strong presumption
in favor of adjudications on the merits.”
Shepherd, 62 F.3d at 1475 (quoting Link v.
Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)).
party seeking sanctions bears an evidentiary burden that is
calibrated to “ensure that the gravity of [the]
sanction corresponds to the misconduct.”
Shepherd, 62 F.3d at 1479. In the context of a party
seeking an adverse inference instruction, the moving party
must show that such a sanction is supported by a
preponderance of the evidence. See Clarke v.
Washington Metro. Area Transit Auth., 904
F.Supp.2d 11, 21 (D.D.C. 2012) (citing Shepherd, 62
F.3d at 1477-78. Specifically, the requesting party must show
(1) the party having control over the evidence had an
obligation to preserve it when it was destroyed or altered;
(2) the destruction or loss was accompanied by a
“culpable state of mind”; and (3) the evidence
that was destroyed or altered was “relevant” to
the claims or defenses of the party that sought the discovery
of the spoliated evidence, to the extent that a reasonable
factfinder could conclude that the lost evidence would have
supported the claims or defense of the party that sought it.
Mazloum v. D.C. Metro. Police Dep't, 530
F.Supp.2d 282, 291 (D.D.C. 2008) (internal quotation