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Vasser v. Shinseki

United States District Court, District of Columbia

November 22, 2017

DAVID SHULKIN, Secretary, United States Department of Veterans Affairs Defendant.




         This 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.


         In 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.

         In 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.[1] 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.[2] 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. ¶ 13.

         However, 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 original).

         Ultimately, 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.

         In 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 20 n.12.

         On 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 Court's review.


         A party 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)).

         The 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 that:

(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 ...

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