Vasser v. Shinseki

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

VIVIAN VASSER, :
:
Plaintiff, : Civil Action No.: 14-0185 (RC)
:
v. : Re Document No.: 56
:
DAVID SHULKIN, Secretary, :
United States Department of Veterans Affairs :
:
Defendant. :

MEMORANDUM OPINION

GRANTING PLAINTIFF VIVIAN VASSER’S MOTION FOR SPOLIATION OF EVIDENCE AND
SANCTIONS

I. INTRODUCTION

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.

II. FACTUAL BACKGROUND

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.

1
ORM is a component of the VA that is charged with documenting and investigating
complaints made under the laws covered by the Equal Employment Opportunity Commission
and provides EEO complaint processing services, including counseling, alternative dispute
resolution, and investigation. Winston Johnson Decl. ¶ 2, ECF No. 61-6.
2
Ms. Vasser appealed this decision in November 2010, see Pl.’s Reply, Ex. 20, ECF No.
65-1, but ultimately withdrew her request for a hearing and the issue went undecided, Pl.’s Reply
at 14.

2
 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

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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.

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 III. LEGAL STANDARD

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

5
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 omitted).

IV. ANALYSIS

In opposing Ms. Vasser’s motion for sanctions, the Secretary argues that there is no

evidence that any relevant documents were ever destroyed and that Ms. Vasser has not otherwise

made the requisite showing of an entitlement to relief. For the reasons stated below, the Court

concludes that Ms. Vasser has made a sufficient showing to meet her burden and that a spoliation

instruction is an appropriate remedy in this case.

A. Existence of Destroyed Documents

The analysis of Ms. Vasser’s spoliation motion must necessarily begin with the issue of what

documents in the Merit Promotion File, if any, existed. Of course, there can be no spoliation of

6
evidence if the evidence sought did not exist. See Mahaffey v. Marriott Int’l, Inc., 898 F. Supp. 2d

54, 61 (D.D.C. 2012) (“[I]f no [] evidence was created, it could not have been destroyed.”). The

Secretary points out that Ms. Vasser has already received a copy of the announcement for 2008

Vacancy and its cancellation notice. Def.’s Opp’n at 5. He argues that “[i]f Plaintiff suggests that

Defendant failed to preserve other [2008 Vacancy] documents (beyond these two records), Plaintiff

must at least identify what other documents that might have existed but were improperly destroyed.”

Def.’s Opp’n at 5–6.

The Secretary is correct on this point. A movant seeking sanctions for spoliation must

demonstrate that the subject documents actually existed. For example, in Mahaffey v. Marriot

International, 898 F. Supp. 2d 54, 57 (D.D.C. 2012), the plaintiff in that case claimed that he was

injured at the defendant’s hotel while he was exiting an elevator on his way to his room shortly after

checking in. The plaintiff argued that the defendant failed to preserve investigative reports and

similar documents relating to the plaintiff’s alleged accident. Id. at 60. The defendant urged,

however, that it had been unable to locate any such documents or find any witnesses that

remembered creating such documents. Id. Rather than identify evidence showing that the

documents ever existed, the plaintiff pointed to the defendant’s policies and procedures and argued

that an investigation should have been conducted. Id. at 60–61. The Court held that the plaintiff had

failed to meet his burden to demonstrate spoliation because, without any showing that an

investigation took place, there can be no basis to find that any investigative documents ever existed.

Id. at 61.

Here, the Court is satisfied that Ms. Vasser has made a sufficient showing that at least some

documents other than those already produced existed in the Merit Promotion File at the time of its

destruction. In her reply, Ms. Vasser did not squarely address the Secretary’s argument, instead she

simply claimed that “[w]hat is contained in a ‘Merit Promotion File’ is not a secret.” Pl.’s Reply

at 9. But she did not specifically identify for the Court what these “non-secret” documents

7
supposedly were or otherwise provide specific evidence supporting their existence. See Pl.’s Reply

at 9. The Court is convinced, however, that if the record shows that other people applied to the

position, then the Merit Promotion File, at a bare minimum, must have contained application

materials from those persons. With this issue in mind, the Court asked the parties at the October 13,

2017 motion’s hearing whether people other than Ms. Vasser actually applied to the 2008 Vacancy.

Neither party could definitively answer the question at the time. But in a subsequent filing, Ms.

Vasser identified some evidence supporting the view that others did in fact apply for the position.

See Pl.’s Submission Regarding Spoliation Evidence at 1, ECF No. 85. First, Ms. Vasser pointed to

her deposition testimony in which she testified that, during her interview with Mr. Walker for the

2008 Vacancy, Mr. Walker informed her that he had also interviewed other candidates for the

position.3 Vasser Dep. at 62:17–25. Mr. Walker, however, implicitly disputes this purported

admission because, according to him, he never interviewed Ms. Walker, making his purported

admission impossible. See Walker Decl. ¶ 15. Nevertheless, Ms. Vasser also points to the fact that,

when the VA re-advertised the same Deputy Regional Manager position just a few months later,

twenty-five people submitted applications. The Secretary has not disputed this fact nor has the

Secretary ever affirmatively claimed that no one else applied to the 2008 Vacancy. Although the

evidence is relatively thin, the Court is persuaded that, based on this record, it is more likely than not

that persons other than Ms. Vasser also applied to the 2008 Vacancy. Consequently, the Court is

3
Mr. Walker’s purported statement is not hearsay because it qualifies as an admission by
a party opponent under Rule 801(d)(2)(D) of the Federal Rules of Evidence. Rule 801(d)(2)(D)
states that statements “offered against an opposing party . . . made by the party’s agent or
employee on a matter within the scope of that relationship and while it existed” does not qualify
as hearsay. The D.C. Circuit has advised that “in the employment discrimination context,” this
Rule “requires only that the declarant have some authority to speak on matters of hiring or
promotion or that the declarant be involved in the decision-making process in general.”
Talavera v. Shah, 638 F.3d 303, 309 (D.C. Cir. 2011). Because Mr. Walker was clearly involved
in the hiring of his own Deputy, his purported statements in that regard are admissible as a
statement by a party opponent.

8
swayed that Ms. Vasser has satisfied her burden to show by a preponderance of the evidence that the

Merit Promotion File contained, not only her application, but also applications of other candidates.4

See Concrete Pipe & Prods. of Calif., Inc. v. Constr. Laborers Pension Tr. for S. Calif., 508 U.S.

602, 622 (1993) (“preponderance of the evidence . . . simply requires the trier of fact to believe that

the existence of a fact is more probable than its nonexistence” (internal quotations omitted)).

B. Duty To Preserve

Having concluded that Ms. Vasser has adequately shown that the Merit Promotion File

contained at least applications of other candidates, the Court is also persuaded that the VA had a duty

to preserve those documents in connection with this litigation. A litigant “is under a duty to

preserve what it knows, or reasonably should know, is relevant in the action, is reasonably

calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested

during discovery, and/or is the subject of a pending discovery request.” Arista Records, Inc. v.

Sakfield Holding Co., 314 F. Supp. 2d 27, 33 n.3 (D.D.C. 2004) (internal quotation omitted). In

this case, Ms. Vasser clearly attempted to put the 2008 Vacancy documents at issue both before and

after they were destroyed in approximately January 2011. Indeed, in February 2010, Ms Vasser filed

a formal complaint of discrimination and, in an attachment to that complaint, described her non-

selection for the 2008 Vacancy. Then, in the Summer of 2010, when the ORM accepted her

4
During the motion’s hearing, the Court requested that Defendant clarify its search for
electronically stored information to determine whether the Defendant’s search captured
electronic information, such as emails, over the entire period that Vacancy Announcement No.
MPA 08-381 was open (from August 29, 2008 through January 9, 2009). In its response,
Defendant stated that emails for some custodians, such as Mr. Walker, spanned the entire
relevant period. Def.’s Resp. Court Order at 1, ECF No. 79. However, for other custodians,
such as Dr. Batres, the Secretary only searched for documents starting in January 2009, the very
tail end of the relevant timeframe. Def.’s Resp. Court Order at 1–2. Nevertheless, the Court
does not decide whether Defendant can be charged with spoliating or otherwise failing to
produce any of those documents because Plaintiff failed to raise that issue in her motion, thereby
waiving the issue. Because the Plaintiff failed to otherwise raise this issue, the Court declines to
rule on the matter sua sponte.

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complaint for investigation but limited that investigation solely to the 2009 Vacancy, Ms. Vasser

complained that ORM failed to accept her claim based on the 2008 Vacancy. By November 2010,

Ms. Vasser’s counsel was specifically requesting documents relating to the 2008 Vacancy. And then

in this litigation, Ms. Vasser again pled the issue concerning her nonselection for the 2008 Vacancy

into her complaint and requested discovery pertaining to that vacancy.

The Secretary argues that, because Ms. Vasser’s attempt to assert an independent claim

concerning her non-selection for the 2008 Vacancy “was rejected as untimely at every step and there

was no separate investigation of that positon,” Defendant was therefore “not on ‘notice’ of any

investigation surrounding Plaintiff’s non-selection under [the 2008 Vacancy].” Def.’s Opp’n at 9.

This argument plainly cannot stand. Whether Ms. Vasser could bring an independent action related

to the 2008 Vacancy or whether there was an investigation that specifically considered her non-

selection under that announcement does not necessarily answer the operative question of whether the

Defendant knew, or reasonably should have known, that the evidence was potentially relevant to the

action. Of course, if Ms. Vasser was permitted to assert a claim regarding her non-selection for the

2008 Vacancy, then the relevance of the documents would be obvious. But the fact that she is not

permitted to do so—even though she did try—does not necessarily mean that the documents are

irrelevant to the 2009 Vacancy or that Defendant should not have reasonably foreseen their

relevance.

The 2008 Vacancy documents are patently relevant to Ms. Vasser’s non-selection for the

2009 Vacancy and the VA most certainly knew or reasonably should have known that to be the case.

Even though the VA solicited applications through two announcements, the two announcements were

for the exact same position. Indeed, the only reason there was a 2009 Vacancy Announcement at all

was because the VA did not make a selection among the candidates who applied in the 2008 Vacancy

Announcement. Thus, the circumstances surrounding what happened in the 2008 Vacancy have a

clear and direct nexus to Ms. Vasser’s non-selection under the 2009 Vacancy. This alone should

10
have been sufficient to put the VA on notice that the Merit Promotion File documents were relevant

to Ms. Vasser’s action. But, even if Ms. Vasser’s own complaints were not enough to put the VA on

notice, the VA should have recognized this clear connection by at least July 2010 (after the ORM had

dismissed the 2008 Vacancy non-selection) because the EEO investigator propounded questions to

Dr. Batres and a Human Resources employee that specifically requested information about the 2008

Vacancy and tied it to the investigation about Ms. Vasser’s non-selection for the 2009 Vacancy. See

Pl.’s Ex. 2. Thus, the VA either knew or should have known that the 2008 Vacancy documents were

related to Ms. Vasser’s claim concerning the 2009 Vacancy before those documents were destroyed.5

Consequently, the VA had a duty to preserve those documents for purposes of litigation.6

5
The Secretary attempts to distinguish this case from Gerlich v. U.S. Department of
Justice, 711 F.3d 161 (D.C. Cir. 2013), on the ground that, in that case, the Court found that
there was “[u]nrebutted evidence” demonstrating that certain Justice Department officials “were
on notice” that an investigation or future litigation was “reasonably foreseeable.” See Def.’s
Opp’n at 8–9. The Court in Gerlich, however, never required that the evidence of potential
future litigation be unrebutted. In any event, the evidence that both Ms. Vasser and the EEO
investigator attempted to put the circumstances of the 2008 Vacancy at issue in connection with
the 2009 Vacancy claim before the documents were destroyed is, in fact, unrebutted. That ORM
found the 2008 Vacancy claim to be untimely does not negate these facts or otherwise suggest
that the agency should not have recognized the relevance of the documents to Ms. Vasser’s
remaining claims. Thus, this argument is without merit.
6
The Secretary also argues that “it was not reasonably foreseeable that the[] documents
were still relevant to Plaintiff’s future litigation either at the agency level or in federal court”
because “Ms. Vasser fail[ed] to pursue these documents in discovery at the administrative stage.”
See Def.’s Opp’n at 9–10. The Secretary cites to no case law supporting his position that
Plaintiff must file a motion to compel to preserve the spoliation issue concerning documents
Plaintiff plainly requested but for which her requests were rebuffed without justification.
Regardless, the potential relevance of documents does not turn on whether a plaintiff pursues
them at any given point. Each party has an affirmative obligation to preserve potentially relevant
evidence regardless of whether or how an opposing party pursues it. In this case, the relevance
of the documents to Ms. Vasser’s non-selection for the 2009 Position was clear and the Secretary
was on notice of that relevance. Those documents and that information did not cease to be
relevant merely because Ms. Vasser did not move to compel their production at the
administrative stage.

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 C. Culpable State of Mind

The Court is also persuaded that the documents were destroyed with the requisite culpable

state of mind. “[T]o justify the issuance of an adverse inference instruction, the destruction need not

be purposeful, and negligent spoliation suffices.” Mahaffey, 898 F. Supp. 2d at 61 (citing Chen v.

District of Columbia, 839 F. Supp. 2d 7, 13–14 (D.D.C. 2011); see also Grosdidier v. Broad. Bd. of

Governors, 709 F.3d 19, 27 (D.C. Cir. 2013) (spoliation inference may be “appropriate in light of the

duty of preservation notwithstanding the fact that the destruction was negligent” (citing Talavera v.

Shah, 638 F.3d 303, 312 (D.C. Cir. 2011))); More v. Snow, 480 F. Supp. 2d 257, 274–75 (D.D.C.

2007) (“[A] court may employ an adverse inference due to a party’s ‘failure to preserve evidence,’

even if deliberate or reckless conduct is not present.”) (quoting Rice v. United States, 917 F. Supp.

17, 19–20 (D.D.C. 1996)). In this case, the documents were destroyed pursuant to the VA’s Record

Control schedule. That is, the VA destroyed the documents in accordance with its typical practice

for retaining documents. But this fact does not absolve the VA of its duty to preserve relevant

documents for litigation. See Talavera, 638 F.3d at 311 (D.C. Cir. 2011) (fact that the records were

destroyed as part of the defendant’s “‘typical’ practice” was insufficient to overcome the duty to

preserve them); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (“Once a

party reasonably anticipates litigation, it must suspend its routine document retention/destruction

policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”); Fed. R.

Civ. P. 37, advisory committee’s notes (2006) (“When a party is under a duty to preserve information

because of pending or reasonably anticipated litigation, intervention in the routine operation of an

information system is one aspect of what is often called a ‘litigation hold.’”). As noted above, the

VA knew or should have known that these documents were relevant to Ms. Vasser’s claims at the

time the VA voluntarily destroyed them and thus that decision was at least negligent. In fact, the VA

12
not only knew or should have known that these documents were relevant, it knew the Plaintiff had

requested them (and has done so at every stage of this litigation), yet it failed to preserve them.

D. Relevance of the Documents

“Once a court has determined that future litigation was reasonably foreseeable to the

party who destroyed relevant records, the court must then assess . . . whether the destroyed

records were likely relevant to the contested issue.” Gerlich v. U.S. Dep’t of Justice, 711 F.3d

161, 171 (D.C. Cir. 2013) (citing Kronisch v. United States, 150 F.3d 112, 127 (2d Cir. 1998)).

The D.C. Circuit has recognized that “in an inquiry that ‘is unavoidably imperfect . . . in the

absence of the destroyed evidence, [a court] can only venture guesses with varying degrees of

confidence as to what that missing evidence may have revealed.’” Id. (quoting Kronisch, 150

F.3d at 127–28) (alteration in original). In circumstances when “the document destruction has

made it more difficult for a party to prove that the documents destroyed were relevant . . . the

burden on the party seeking the adverse inference is lower; the trier of fact may draw such an

inference based even on a very slight showing that the documents are relevant.” Ritchie v.

United States, 451 F.3d 1019, 1025 (9th Cir. 2006) (quoted approvingly in Gerlich, 711 F.3d at

171).

Here, the relevance of the destroyed documents is readily apparent. Ms. Vasser claims that,

not only did she interview for the 2008 Deputy Regional Manager position, Mr. Walker actually

recommended her for the position. If Ms. Vasser is right, this fact would raise a serious question of

why, when the exact same position was later readvertised in 2009, Mr. Walker instead chose a white

man who at best held “similar qualifications.” Pl.’s Mot. Summ. J. at 12, ECF No. 66-2. Mr.

Walker, however, disputes Ms. Vasser’s account and claims that he never selected Ms. Vasser and, in

fact, never interviewed her. See John Walker Decl. ¶ 15. Documents in the Merit Promotion File,

including applications filed by other candidates, would clearly have shed light on the truth of Ms.

13
Vasser’s claim by, at the very least, showing whether or not Ms. Vasser was the most qualified

applicant for the position. Thus, a reasonable factfinder could conclude that the lost evidence

would have supported Ms. Vasser’s claims.

E. Remedy

Based on the foregoing, the Court concludes that Ms. Vasser has adequately shown that

the VA negligently destroyed documents relating to Vacancy Announcement MPA 08-351,

which a reasonable jury could conclude would have supported Ms. Vasser’s claims, and that this

destruction occurred at a time when litigation was reasonably foreseeable and the VA was under

an obligation to preserve relevant documents. Under these circumstances, the Court finds that

the appropriate remedy is the issuance of a missing evidence instruction to the jury. See e.g., Zhi

Chen v. District of Columbia, 839 F. Supp. 2d 7, 15–16 (D.D.C. 2011).

The Court must decide then on the substance of that instruction. An adverse inference

instruction is intended to be “remedial rather than punitive,” Shepherd, 62 F.3d at 1478, and thus

the Court must assess what instruction will suffice to remedy the harm Ms. Vasser suffered.

Other courts in this District have observed that “any adverse inference instruction grounded in

negligence” should “be considerably weaker in both language and probative force than an

instruction regarding deliberate destruction.” Mazloum, 530 F. Supp. 2d at 293. Ms. Vasser

proposes the following language:

Defendant failed to produce certain documents and emails that were within its control
relating to the Deputy Regional Manager recruitment under vacancy announcement 08-
351 and Ms. Vasser’s assertion that she was qualified, interviewed and was
recommended for selection to that position. You must, therefore, presume that the
evidence contained in those documents would have been favorable to Ms. Vasser and
unfavorable to defendant.

Pl.’s Proposed Adverse Inference Jury Instruction, ECF No. 85-1. The Court finds this language

to be inappropriate under the circumstances, especially given that the instruction requires that the

14
jury make an adverse inference. Even the case that Ms. Vasser cites as support concludes that a

permissive instruction, rather than a mandatory instruction, is appropriate when “the Court does

not find intentional misconduct.” Beck v. Test Masters Educ. Servs., Inc., 289 F.R.D. 374, 380

(D.D.C. 2013).

The Court instead finds that the instruction proposed by Defendant, which has been used in

other spoliation cases in this District, adequately addresses the harm suffered by Ms. Vasser. Thus,

the Court proposes to give an instruction along these lines:

You have heard testimony about a merit promotion file for Vacancy Announcement MPA-
08-351 that has not been produced. That file related to the first solicitation for applicants to
the Deputy Regional Manager position in Bay Pines, Florida. Counsel for plaintiff has
argued that this evidence was in defendant’s control and would have proven facts material to
the matter in controversy.

If you find that the defendant could have produced the evidence, and that the evidence was
within the defendant’s control, and that this evidence would have been material in deciding
among the facts in dispute in this case, then you are permitted, but not required, to infer that
the evidence would have been unfavorable to the defendant.

In deciding whether to draw this inference, you should consider whether the evidence not
produced would merely have duplicated other evidence already before you. You may also
consider whether the defendant had a reason for not producing this evidence, which was
explained to your satisfaction. Again, any inference you decide to draw should be based on
all of the facts and circumstances in this case.

See Zhi Chen, 839 F. Supp. 2d at 16 (quoting 4 Hon. Leonard B. Sand, et al., Modern Federal Jury

Instructions ¶ 75.01 (2007) (Instruction 75–7: Party’s Failure to Produce Evidence).

V. CONCLUSION

For the foregoing reasons, the Court GRANTS Vivian Vasser’s Motion for Spoliation of

Evidence and Sanctions (ECF No. 56). An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.

Dated: November 22, 2017 RUDOLPH CONTRERAS
United States District Judge

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