EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant,
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,
from the United States District Court for the District of
Colorado (D.C. No. 1:13-CV-02340-CMA-KMT)
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.
S. King and Hunter A. Swain, King & Greisen, LLP, Denver,
Colorado, on the briefs for Plaintiff-Intervenor-Appellants.
C. Brenton, Brenton Legal P.A., Fort Lauderdale, Florida, for
KELLY, HARTZ, and HOLMES, Circuit Judges.
rejected an employment-discrimination claim against JetStream
Ground Services, Inc. filed by several Muslim women and the
Equal Employment Opportunity Commission (EEOC) (collectively,
Plaintiffs), 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.
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.
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.
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.
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.
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.
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). 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
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 ...