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Equal Employment Opportunity Commission v. Jetstream Ground Services, Inc.

United States Court of Appeals, Tenth Circuit

December 28, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant,
v.
JETSTREAM GROUND SERVICES, INC., Defendant-Appellee. and SAFIA ABDULLE ALI; SAHRA BASHI ABDIRAHMAN; HANA BOKKU; SADIYO HASSAN JAMA; SAIDA WARSAME, a/k/a Amino Warsame, Intervenor Plaintiffs - Appellants,

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:13-CV-02340-CMA-KMT)

          Gail S. Coleman (James L. Lee, Deputy General Counsel, Jennifer S. Goldstein, Associate General Counsel, and Elizabeth E. Theran, Acting Assistant General Counsel, with her on the briefs), Equal Employment Opportunity Commission, Washington, D.C., for Plaintiff-Appellant.

          Diane S. King and Hunter A. Swain, King & Greisen, LLP, Denver, Colorado, on the briefs for Plaintiff-Intervenor-Appellants.

          Ryan C. Brenton, Brenton Legal P.A., Fort Lauderdale, Florida, for Defendant Appellee.

          Before KELLY, HARTZ, and HOLMES, Circuit Judges.

          HARTZ, CIRCUIT JUDGE.

         A jury rejected an employment-discrimination claim against JetStream Ground Services, Inc. filed by several Muslim women and the Equal Employment Opportunity Commission (EEOC) (collectively, Plaintiffs[1]), who alleged that JetStream discriminated against the women on religious grounds by refusing to hire them because they wore hijabs. Plaintiffs' sole argument on appeal is that the district court abused its discretion by refusing to impose a sanction on JetStream-either excluding evidence or instructing the jury that it must draw an adverse inference-because it disposed of records contrary to a federal regulation purportedly requiring their preservation. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Plaintiffs' argument that the exclusion sanction should have been applied was waived in their opening statement at trial. And the district court did not abuse its discretion in refusing to give an adverse-inference instruction after Plaintiffs conceded that destruction of the records was not in bad faith.

         I. BACKGROUND

         In October 2008 JetStream was selected by United Airlines to clean aircraft at Denver International Airport. To assist in staffing for the upcoming contract, JetStream scheduled a job fair for employees of AirServ Corp., the company that was continuing to do the work until JetStream's contract began. The individual Plaintiffs were employed by AirServ and participated in the job fair but were not hired, allegedly because of religious discrimination by JetStream based on their wearing hijabs.

         Plaintiffs' theory of the case has been that although JetStream's dress policy was silent regarding head coverings, including hijabs, the co-owner of JetStream, David Norris, did not want to hire women who insisted on wearing hijabs at work. At trial the individual Plaintiffs testified to discriminatory statements made by Norris, and Plaintiffs offered supporting testimony from two former JetStream administrative managers who had since been terminated. One testified that she was instructed by JetStream's human-resources department to tell applicants that head coverings were not permitted, even for religious reasons. The other testified that at the job fair Norris said that he would not tolerate Muslim women wearing hijabs at work. Norris and other JetStream employees denied that the company opposed wearing hijabs on the job.

         For the first several years of the controversy, JetStream asserted that the decisions not to hire the individual Plaintiffs were based on their applications and interviews. But a year into discovery, JetStream changed its position, arguing instead that the hiring decisions were based on the recommendations of Arnold Knoke, a supervisor at AirServ.

         JetStream claimed the following: Two of its employees, Frank Austin and Gail Cadorniga, met with Knoke on November 5, 2008, to hear Knoke's recommendations on which AirServ employees to hire. During the meeting Austin and Cadorniga marked which employees Knoke recommended on an AirServ employee schedule provided by Knoke that contained the names of all the AirServ employees. Austin wrote the names on a piece of paper; and promptly after the meeting Cadorniga obtained the phone numbers for the recommended persons from the applications. Cadorniga then entered the information into an Excel spreadsheet, which she saved on her laptop and a flash drive. Later that day the names of the successful applicants were posted in the break room for AirServ employees. Cadorniga neither added to the list anyone not recommended by Knoke, nor did she remove anyone from his recommended list. JetStream claims that Knoke's recommendations, and not any discriminatory animus, drove its hiring decisions.

         Plaintiffs requested that JetStream produce, among other things, all documents related to the nondiscriminatory reasons for not hiring the individual Plaintiffs. JetStream produced a November 10 version of the Excel spreadsheet. Neither Cadorniga nor Austin could recall what had happened to their notes or the list with checked-off names, although both indicated that they could see no reason to have kept them. As for the earlier (November 5) version of the Excel spreadsheet, it was apparently updated as information was modified or added, although it is undisputed that the names on the November 10 spreadsheet are identical to the names posted in the employees' break room on November 5.

         In a pretrial motion, Plaintiffs sought spoliation sanctions against JetStream. They claimed that JetStream's failure to maintain the original versions of the recommendations violated 29 C.F.R. § 1602.14, which requires employers to preserve for one year all personnel or employment records that it makes or keeps and, if a discrimination charge has been filed, to continue to preserve the records until final disposition of the charge. (The first claims were filed against JetStream on February 5, 2009).[2] Plaintiffs argued that disposal of the handwritten notes deprived them of the opportunity to effectively rebut JetStream's defense because Plaintiffs were unable to compare the list of hires to the original documents from the meeting with Knoke and determine whether any names were added or removed after the receipt of Knoke's recommendations. Any changes, they argue, would indicate that someone (Plaintiffs suggest Norris) altered those recommendations, perhaps for discriminatory purposes.

         Plaintiffs requested two alternative sanctions for the alleged spoliation: exclusion of testimony by JetStream's witnesses about the list of Knoke's recommendations, or an instruction to the jury that they should infer that the missing documents were harmful to JetStream. At the pretrial hearing the district court reserved ruling on the motion, stating that it needed to "hear the evidence at trial." Aplt. App. at 234. It said that it could not determine at ...


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