PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARY E. BUCKLEY,
Plaintiff-Appellant,
v.
MICHAEL B. MUKASEY, in his official No. 07-1195
capacity as Attorney General of the
United States, Department of
Justice,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(1:06-cv-00420-TSE)
Argued: March 18, 2008
Decided: August 20, 2008
Before KING and DUNCAN, Circuit Judges,
and Jane R. ROTH, Senior Circuit Judge of the United States Court
of Appeals for the Third Circuit, sitting by designation.
Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Duncan and Senior Judge Roth joined.
COUNSEL
ARGUED: Paul Reinherz Wolfson, WILMER, CUTLER, PICKER-
ING, HALE & DORR, L.L.P., Washington, D.C., for Appellant.
2 BUCKLEY v. MUKASEY
Kevin Jason Mikolashek, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Danielle Conley, Sarah Adams Zumwalt,
WILMER, CUTLER, PICKERING, HALE & DORR, L.L.P., Wash-
ington, D.C., for Appellant. Chuck Rosenberg, United States Attor-
ney, Alexandria, Virginia, for Appellee.
OPINION
KING, Circuit Judge:
In this action under Title VII of the Civil Rights Act of 1964, Mary
Buckley alleged a variety of race discrimination, sex discrimination,
and retaliation claims stemming from her employment as a special
agent with the Drug Enforcement Administration (the "DEA").1 Dur-
ing a five-day trial conducted in the Eastern District of Virginia in the
fall of 2006, the district court granted judgment as a matter of law to
the government on Buckley’s failure-to-promote retaliation claim, and
the jury found in favor of the government on all remaining claims.
Thereafter, Buckley unsuccessfully sought a new trial on three
grounds: (1) that the district court improperly restricted the introduc-
tion of evidence, relevant to Buckley’s theory of retaliatory animus,
regarding a separate, ongoing race discrimination action against the
DEA in which Buckley was a class member; (2) relatedly, that the
court erred in awarding judgment as a matter of law to the govern-
ment on her failure-to-promote retaliation claim; and (3) that the court
wrongly refused to give an adverse inference instruction against the
government for spoliation of evidence. Buckley has appealed, and, as
explained below, we vacate and remand for further proceedings.
1
This action was brought against Alberto R. Gonzales, in his former
capacity as Attorney General of the United States. Gonzales has since
been replaced by current Attorney General Michael B. Mukasey. We
refer herein to the defendant as the "government."
BUCKLEY v. MUKASEY 3
I.
A.
Buckley, an African-American woman, joined the DEA as a spe-
cial agent in 1974 and has now retired. During her thirty-two-year
career as a special agent, she held a variety of positions within the
DEA, including undercover, international, and supervisory posts. She
also received awards for distinguished service and a series of perfor-
mance appraisals rating her work for the DEA as excellent.
1.
In 1977, a class action — known as the "Segar litigation" — was
filed in the district court for the District of Columbia, alleging race
discrimination by the DEA against African-American special agents,
in contravention of Title VII. The Segar litigation was brought on
behalf of, inter alia, all African-American special agents currently
serving with the DEA (including Buckley). Following a bench trial,
the Segar court determined, in 1981, that the defendants had indeed
discriminated against African-American special agents in various
ways, including reliance on subjective evaluations by supervisors to
award promotions. See Segar v. Civiletti, 508 F. Supp. 690 (D.D.C.
1981). Thus, in 1982, the court entered an order enjoining the defen-
dants from discriminating against African-American special agents in
promotions and mandating implementation of a nondiscriminatory
promotion system. See Segar v. Smith, No. 1:77-cv-00081, 1982 WL
214 (D.D.C. Feb. 17, 1982) (the "Segar 1982 Order").
Thereafter, in 1992, the DEA implemented a new system for spe-
cial agent promotions to positions at the GS-14 and -15 grades. The
new system relied on an evaluation process called the Special Agent
Promotion Process (the "SAPP"). Candidates scoring high on the
SAPP were placed on a Best Qualified List (the "BQL"). Then, the
upper-level supervisor over the vacancy in question could submit a
"Short List" to the DEA’s Career Board (comprised of ten senior
DEA officials) of the top three candidates from the BQL in order of
preference. Finally, the Career Board selected a special agent for the
position, usually from the Short List.
4 BUCKLEY v. MUKASEY
In 1997, the plaintiffs in the Segar litigation filed a motion for a
compliance order, alleging that African-American special agents con-
tinued to suffer from race discrimination under the new promotion
system. In 1999, the Segar court granted the motion for a compliance
order in part, enjoining use of the Short List for promotions to GS-14
and -15 positions, pending a showing that its use could be validated
as consistent with the DEA’s obligations under Title VII. See Segar
v. Reno, No. 1:77-cv-00081 (D.D.C. Sept. 27, 1999) (the "Segar 1999
Order").2 When nearly 130 managerial positions subsequently went
unfilled, the parties entered into a joint stipulation — approved by the
court — permitting temporary use of the Short List for promotions to
GS-14 and -15 positions, subject to certain terms and conditions. See
Segar v. Reno, No. 1:77-cv-00081 (D.D.C. Jan. 4, 2000) (the "Segar
2000 Interim Order").3
2.
In the spring of 2001, Buckley, then a GS-14 special agent
assigned to the Office of Inspections in the DEA’s Inspection Divi-
sion, was temporarily promoted to Senior Inspector in the Office of
Inspections’s Internal Review and Audit Section, a GS-15 position.4
Buckley’s immediate supervisor was Gloria Woods, head of the
Office of Inspections, and Woods in turn reported to William Brown,
the Acting Chief Inspector (i.e., head of the Inspection Division). In
2
A portion of the Segar 1999 Order is found at J.A. 27-32. (Our cita-
tions to "J.A. ___" refer to the contents of the Joint Appendix filed by
the parties in this appeal.)
3
As of the time the parties filed their appellate briefs herein, the Segar
2000 Interim Order was still in effect. The Segar 2000 Interim Order is
found at J.A. 17-26.
4
The facts spelled out herein with respect to Buckley’s employment
with the DEA are largely drawn from the trial record. Where relevant to
Buckley’s failure-to-promote retaliation claim — on which the govern-
ment was granted judgment as a matter of law — the facts are recited in
the light most favorable to Buckley. See Int’l Ground Transp., Inc. v.
Mayor of Ocean City, Md., 475 F.3d 214, 216 n.2 (4th Cir. 2007)
("Because the district court granted judgment as a matter of law, we must
view the facts — and we recite them here — in a light most favorable
to [the non-moving party].").
BUCKLEY v. MUKASEY 5
her temporary Senior Inspector position, Buckley supervised the sec-
tion responsible for coordinating reviews of the DEA by the General
Accounting Office (the "GAO").
a.
On June 11, 2001, a GAO representative contacted the DEA about
conducting a study of the DEA’s hiring, promotion, and discipline
systems at the request of Congresswoman Eddie Bernice Johnson, a
member of the Congressional Black Caucus. Cynthia Ryan, Chief
Counsel for the DEA, informed the GAO representative that the sys-
tems in question were already the subject of the ongoing and "still
very active" Segar litigation. J.A. 62. Buckley, Woods, and Brown
were forwarded a copy of an email message from Ryan recounting
her conversation with the GAO representative, during which the GAO
representative expressed, in the words of Ryan, that she intended "to
recommend against initiating this GAO investigation," because the
"GAO avoids investigating an area which is the subject of current liti-
gation." Id. In an ensuing exchange by email, Brown suggested there
might be issues that the DEA would need to look into in response to
the GAO inquiry. Buckley then responded to Brown, on June 11,
2001, as follows:
I do think there should be additional information in event
the GAO (intended) study has no reflections on the [Segar]
litigation that [Ryan] mentioned. I think that if it does
involve the Congressional Black Caucus, their conclusion
will be that DEA is using stalling tactics or have something
to hide. In my opinion, GAO’s conclusion would have no
bearing on any pending litigation.
Id. at 61 ("Email 1").
Thereafter, the GAO asked to meet with DEA representatives in
order to gather more information for a response to Congresswoman
Johnson’s request. On June 18, 2001, Buckley sent the following
email message to Ryan and Brown:
As you are probably already aware, GAO has made a 2nd
request for a meeting with selected DEA staffers. The pur-
6 BUCKLEY v. MUKASEY
pose of the meeting is to get an understanding of issues sur-
rounding discrimination, hiring, promotions and disciplinary
actions against black agents in DEA. GAO understands
[Ryan’s] position. However, GAO isn’t familiar with the
whole situation, therefore needs to make a determination as
to how GAO can adequately address Eddie Bernice John-
son’s request and, what aspects, if any, that GAO can look
into in order to address [the Congressional Black Caucus]
request.
J.A. 49 ("Email 2"). Email 2 stated that "[p]resent at this meeting will
be," among others, representatives of the Segar plaintiffs’ steering
committee (the Equal Employment Opportunity Monitoring Commit-
tee, or "EEOMC"), Ryan, and several other specified DEA officials.
Id. In addition to Ryan and Brown, Email 2 was sent to Rosalynde
Fenner, head of the EEOMC, and two more EEOMC members. As
such, Ryan viewed Email 2 as an effort by Buckley, acting on her
own accord, to involve the EEOMC in the initial DEA-GAO meeting.5
5
DEA Chief Counsel Ryan, testifying in her pretrial deposition, stated
that she deemed it "inappropriate" for Buckley to invite EEOMC repre-
sentatives to the initial DEA-GAO meeting, J.A. 316, and that she was
concerned about a "direct overlap" between the proposed GAO study and
the ongoing Segar litigation, including the possibility that documents
would be handed over to the GAO that had not been produced in discov-
ery in the Segar litigation, id. at 312-13. According to Ryan, she sus-
pected that the Segar plaintiffs knew about the impending GAO study
before the DEA did (and perhaps were behind Congresswoman John-
son’s request for the study) — a suspicion grounded, in part, on Buck-
ley’s ready familiarity with Congresswoman Johnson and the
Congressional Black Caucus. See id. at 318-19. Ryan testified that
my concern about this, I think it’s become sort of revealed . . .
that they [the Segar plaintiffs] have asked for this through the
Congressional Black Caucus, and I could maybe even guess
why.
They were getting maybe a little bit frustrated with the court
not being as fast as they think it should be in resolving some of
their issues.
So fine, . . . but here, my concern with this is now how do I
proceed?
BUCKLEY v. MUKASEY 7
Email 2 closed by stating that "[t]he meeting will take place FRI-
DAY, June 22, 2001, 9:30 a.m. in IN’s conference room on the 4th
floor West building. Thanks . . . ." J.A. 49. The Email 2 recipients
were notified on June 21, 2001, however, that the June 22 meeting
with the GAO had been cancelled. Shortly thereafter, Brown sent an
email message to Woods saying that he had "heard from several peo-
ple that the way this meeting was handled by Mary Buckley and her
staff was non-standard and aggravating," in that "[t]he meeting was
agreed to and set-up with an outside agency, committing DEA partici-
pation at high levels without the courtesy of checking with them to
see if the meeting agreed with their respective schedules." Id. at 50.
Brown criticized Email 2 for constituting "a directive to attend the
scheduled meeting rather than a message of coordination regarding a
proposed meeting." Id. Brown also admonished that "[o]ur job in the
Inspection Division is to facilitate contacts with outside agencies so
that they can conduct their studies and audits. Our job is not to direct
participation or to mandate attendance at such meetings." Id.
b.
In July 2001, the DEA posted two GS-15 position openings, "Va-
cancy 365" (the permanent position in which Buckley was then tem-
porarily serving) and "Vacancy 364." Buckley applied for each of the
positions, and was among thirty-three candidates on the BQL for
Vacancy 365 and thirty-one candidates on the BQL for Vacancy 364.
I’ve got [Buckley,] a plaintiff class member[,] who is now
going to be, seems to be shepherding the GAO request, . . . and
she’s invited the EEOMC for an entrance visit which is supposed
to be with agency, not with plaintiff class representatives.
Id. at 319-20. Ryan, who saw the GAO study "as another avenue of dis-
covery" in the Segar litigation, suggested that Buckley was acting out-
side her normal job responsibilities in personally coordinating the study.
Id. at 321-22. After receiving Email 2, Ryan met with William Simpkins,
the DEA’s Acting Deputy Administrator, and told him that she "was con-
cerned . . . that we might have this conflict of interest . . . that the
EEOMC had been involved, that Mary Buckley had set up this meeting
and invited the EEOMC," and also that she "was concerned about . . . the
two paths crossing at this point." Id. at 328-29.
8 BUCKLEY v. MUKASEY
As Acting Chief Inspector, Brown was responsible for creation of
the Short Lists for vacancies in the Inspection Division. Brown tasked
Woods with the creation of the Short Lists for Vacancies 365 and
364, and Woods placed Buckley on the Short List for each, ranked
first for Vacancy 365 and second for Vacancy 364.6 Brown later
informed Woods, however, that William Simpkins — who had been
named Chief Inspector but was then serving as the DEA’s Acting
Deputy Administrator (and, thus, the Chairman of the Career Board)
— wanted Buckley’s name removed from the Short Lists. Brown and
Woods met with Simpkins, who criticized Buckley’s speaking, writ-
ing, and interpersonal skills. When Woods became upset by his com-
ments, Simpkins suggested that Woods and Brown discuss the matter
between themselves. In the subsequent conversation between Woods
and Brown, Woods defended Buckley and asserted that she had done
an outstanding job in her temporary post. Brown nevertheless urged
Woods to remove Buckley’s name from the Short Lists, expressing
concern that the vacancies would remain unfilled in view of Simp-
kins’s opposition to Buckley’s candidacy. Woods then removed
Buckley’s name from each of the Short Lists before submitting them
to the Simpkins-led Career Board. On August 9, 2001, the Career
Board selected from the Short Lists an African-American man for
Vacancy 365 and a white man for Vacancy 364.7
A few days later, on August 13, 2001, Brown sent a memorandum
to Woods, in which he criticized Buckley’s performance during a July
9, 2001 interagency briefing presented by the Office of Inspections to,
among others, Simpkins and Brown. Brown wrote to Woods that,
6
According to Woods, she believed Buckley to be the most qualified
candidate for both positions. She nevertheless listed Buckley second on
the Short List for Vacancy 364, because she believed that Buckley would
be selected to fill Vacancy 365.
7
Simpkins’s involvement in the creation of the Short Lists for Vacan-
cies 365 and 364 arguably contravened a term and condition of the Segar
2000 Interim Order, instructing that each Short List be provided to
Career Board members only on the day of the Board’s meeting. The gov-
ernment has defended Simpkins’s involvement with the Short Lists for
Vacancies 365 and 364 as consistent with the Segar 2000 Interim Order,
in light of the fact that he had been named (though was not yet serving
as) Chief Inspector, i.e., the upper-level supervisor over the vacancies in
question.
BUCKLEY v. MUKASEY 9
[f]ollowing the briefing[,] we had an opportunity to discuss
the briefing with Acting Administrator Simpkins. He
expressed his displeasure to you with the briefing and was
particularly dissatisfied with the apparent lack of under-
standing and knowledge exhibited by Acting Senior Inspec-
tor Buckley[, as well as another briefer]. After you left
Acting Administrator Simpkins’ office he directed me to
document the shortcomings of the briefings to you in a
memorandum.
J.A. 101. Brown acknowledged in the memorandum that Buckley had
not expected to serve as a briefer and thus had a limited opportunity
to prepare. Nevertheless, Brown also expressed his and Simpkins’s
criticism of Buckley, who was responsible for the program at issue in
the briefing, for "deferr[ing] repeatedly to subordinates when attempt-
ing to answer questions" and for "g[iving] the impression that she was
not familiar with the subject matter." Id. at 102.
That same day, August 13, 2001, Buckley sent an email message
to Fenner, head of the EEOMC, memorializing a discussion between
Buckley and Simpkins about why Buckley was denied a promotion.
According to Buckley, Simpkins "stated a lot of things," including
that Buckley "was not the best of the best qualified." J.A. 103. Simp-
kins specifically cited Buckley’s handling, via Email 2, of the sched-
uling of the DEA-GAO meeting, as well as her performance during
the recent interagency briefing. In Buckley’s view, "[t]he bottom line
[was that Simpkins] was upset about the GAO report that Cindy Ryan
complained about," i.e., the GAO’s impending study of the DEA’s
hiring, promotion, and discipline systems. Id.
3.
On August 28, 2001, Buckley consulted with a DEA equal employ-
ment opportunity ("EEO") counselor about the DEA’s failure to pro-
mote her. On August 31, 2001, Buckley was among several GS-14
and -15 special agents notified that they were subject to being trans-
ferred from DEA headquarters in northern Virginia to a field office,
as part of a regular agency transfer process. On October 4, 2001,
Buckley filed an internal EEO complaint with the Department of Jus-
tice, alleging that her removal from the Short Lists for Vacancies 365
10 BUCKLEY v. MUKASEY
and 364, as well as the threatened transfer from DEA headquarters to
a field office, were based on her race and sex and were retaliatory. On
February 14, 2002, Brown downgraded Buckley’s annual perfor-
mance rating from "Outstanding" to "Acceptable." On April 4, 2002,
Buckley was permitted to amend her EEO complaint to contest the
downgrading of her appraisal. In May 2002, the Career Board (with
Simpkins abstaining) voted to transfer Buckley to the Miami field
office.8
B.
On May 25, 2004, after exhausting her administrative remedies and
being issued a right-to-sue letter, Buckley initiated this action in the
District of Columbia. On March 17, 2005, she filed in that court an
Amended Complaint alleging that the government contravened Title
VII by removing her from the Short Lists for Vacancies 365 and 364
(the "failure to promote"); transferring her to the Miami field office
(the "geographic reassignment"); and downgrading her February 2002
performance appraisal (the "negative review"). Buckley asserted that
each of these actions was racially and sexually discriminatory, as well
as retaliatory. On March 21, 2006, the District of Columbia court
transferred Buckley’s Title VII claims to the Eastern District of Vir-
ginia on venue grounds. See Buckley v. Gonzales, No. 1:04-cv-00841
(D.D.C. Mar. 21, 2006) (the "Buckley Transfer Order").9
8
In June 2003, the GAO issued a report to Congresswoman Johnson
on its study of the hiring, promotion, and discipline systems at the DEA.
See J.A. 151. Among the GAO’s findings were that, during fiscal years
1997 through 2001, "African American and Hispanic special agents were
recommended for promotion at significantly lower rates," but that,
"[d]espite differences in recommendation rates, DEA’s promotion deci-
sions mirrored the race, ethnic, and gender makeup of the agency’s spe-
cial agent workforce." Id. at 152.
9
In her Amended Complaint, Buckley had also asserted three civil con-
tempt claims on the theory that, by way of the conduct involved in her
Title VII claims, the government violated the Segar 1982 Order and the
Segar 2000 Interim Order. By the Buckley Transfer Order, the District of
Columbia court dismissed the civil contempt claims without prejudice,
explaining that they needed to be raised in the Segar litigation itself. The
Buckley Transfer Order is found at J.A. 241-44.
BUCKLEY v. MUKASEY 11
1.
Buckley’s trial in the Virginia district court commenced on Octo-
ber 30, 2006.10 During preliminary proceedings, the district court
sought to clarify the theories underlying Buckley’s Title VII retalia-
tion claims.11 The court concluded that Buckley could proceed on the
10
Prior to trial, on October 20, 2006, the district court awarded sum-
mary judgment to the government on Buckley’s failure-to-promote race
claim, insofar as Buckley was excluded from consideration for Vacancy
365, because another African-American candidate was selected for that
position. Buckley does not contest such summary judgment award in this
appeal. By the time of trial, Buckley’s geographic-reassignment and
negative-review race and sex claims were also apparently out of the case.
11
The district court accepted — as do we (with the government’s
acquiescence) — that a federal employee, like Buckley, may pursue a
retaliation claim under Title VII. See Baqir v. Principi, 434 F.3d 733,
747 n.16 (4th Cir. 2006) (assuming that federal employee’s retaliation
claim was cognizable, but recognizing that relevant Title VII provision,
42 U.S.C. § 2000e-16, does not explicitly provide for such cause of
action); see also Gomez-Perez v. Potter, 128 S. Ct. 1931, 1941 n.4
(2008) (acknowledging, but declining to decide, open question of
"whether Title VII bans retaliation in federal employment"). In assessing
the theories underlying Buckley’s retaliation claims, the district court
looked to the Title VII provision prohibiting private-sector retaliation, 42
U.S.C. § 2000e-3(a). That provision recognizes two categories of pro-
tected activity: (1) "opposition," i.e., "oppos[ing] any practice made an
unlawful employment practice"; and (2) "participation," i.e., "ma[king]
a charge, testif[ying], assist[ing], or participat[ing] in any manner in an
investigation, proceeding, or hearing." § 2000e-3(a). The district court
required Buckley to show, in order to establish a prima facie case of
retaliation, that she engaged in a protected activity, that the government
took a materially adverse action against her, and that a causal relation-
ship existed between her protected activity and the government’s action.
See Lettieri v. Equant Inc., 478 F.3d 640, 650 & n.2 (4th Cir. 2007) (cit-
ing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(holding that "a plaintiff must show that a reasonable employee would
have found the challenged action materially adverse, [meaning] it well
might have dissuaded a reasonable worker from making or supporting a
charge of discrimination" (internal quotation marks omitted))). The gov-
ernment took issue below with the district court’s approach to Buckley’s
retaliation claims, but does not challenge it in this appeal.
12 BUCKLEY v. MUKASEY
premise that the government retaliated against her for having engaged
in protected "participation" activities, with relation to both her 2001
internal EEO complaint and her involvement in the Segar litigation.
Nevertheless, the court only reluctantly accepted Buckley’s Segar liti-
gation theory: that the government’s retaliatory animus — especially
with regard to the failure to promote — was prompted by Buckley’s
active participation in the ongoing Segar litigation (as compared to
passive membership in the plaintiff class), including her self-directed
effort, via Email 2, to include the EEOMC in the initial DEA-GAO
meeting. For support of this theory, Buckley pointed to the pretrial
deposition testimony of DEA Chief Counsel Ryan, revealing that she
had shared her concerns about Buckley’s Email 2-related conduct
with Acting Deputy Administrator Simpkins, a key decisionmaker
with respect to Buckley’s subsequent nonpromotion. See supra note
5. The district court permitted Buckley to attempt to demonstrate that
Simpkins or another decisionmaker knew of (and was motivated by)
her active participation in the Segar litigation, though the court
expressed doubt that Buckley could demonstrate such a causal rela-
tionship between her protected activity and nonpromotion.12
Despite the district court’s belief that Buckley faced difficulties in
proving the Segar litigation theory of retaliatory animus, the court
limited the evidence that could be presented to the jury with respect
to the Segar litigation, invoking several provisions of the Federal
Rules of Evidence. The court — having characterized the Segar liti-
gation as "ancient history" by the summer of 2001, when the events
complained of began, J.A. 398 — admonished Buckley not to name
the Segar litigation or describe its history, including any past findings
of discrimination. Rather, the court merely gave allowances that "you
may ask and you may say to the jury that you intend to show that the
retaliatory conduct was based, in part, on her being active in . . .
ongoing litigation against the DEA for race . . . discrimination, and
we’ll deal with it in the [Federal Rule of Civil Procedure] 50 stage."
Id. at 405. The court also permitted evidence on the requirements of
the DEA’s GS-14 and -15 promotion system and its purpose of ensur-
12
Buckley had also contended during the preliminary proceedings that
her statements in Email 1 constituted protected "opposition" activity.
Although the district court expressed skepticism about this theory, the
court allowed Buckley to proceed on it.
BUCKLEY v. MUKASEY 13
ing equal opportunity, but barred mention that the promotion system
was governed by the Segar 2000 Interim Order.
Finally during the preliminary proceedings, the district court
denied Buckley’s request for an adverse inference instruction against
the government for spoliation of evidence. Buckley’s request was
based on the DEA’s destruction of electronic documents (including
email messages), pursuant to routine internal procedures, from the
time the government could reasonably anticipate this litigation until
nearly two weeks after its discovery responses to Buckley were due.
In refusing the adverse inference instruction, the court ruled that
Buckley had failed to make a requisite showing of "willful conduct,"
rather than mere negligence. J.A. 407. The court also suggested that
it was proper for the DEA to "continue[ ] its routine document recy-
cling protocols" since "[n]o order was entered to the contrary," id.,
and cited Buckley for her own "negligence or inattention" in failing
to obtain such an order, id. at 408. Additionally, the court indicated
that an adverse inference instruction would be improper for the reason
that Buckley failed to identify "any specific document or set of docu-
ments which someone says would typically have said something that
the plaintiff[ ] now say[s she] should have an inference that it did say
that." Id. at 408-09. The court concluded that "[s]imply an adverse
inference that these documents would reflect adversely on defendant’s
case . . . paints with too broad a brush. So I’m going to deny the
request for an adverse inference" instruction. Id. at 409.
2.
Following the preliminary trial proceedings, during Buckley’s
case-in-chief, DEA Chief Counsel Ryan was called as a witness and
questioned within the limitations set forth by the district court. Ryan
testified about her concerns over Buckley’s conflicting roles as the
DEA liaison for the GAO study and as a plaintiff class member in the
Segar litigation (referred to in front of the jury as, e.g., "some active
litigation"). See J.A. 488-501. Ryan’s testimony was similar to that
given during her pretrial deposition. For example, Ryan again testi-
fied at trial about sharing her concerns with Acting Deputy Adminis-
trator Simpkins. As compared to her deposition testimony, however,
Ryan’s trial testimony was appreciably circumscribed — apparently
as a result of the district court’s limitations on discussion of the Segar
14 BUCKLEY v. MUKASEY
litigation. During the government’s presentation, neither Simpkins
nor Acting Chief Inspector Brown testified to having any knowledge
during the relevant time period that Buckley was actively involved in
the Segar litigation.
Before the case was submitted to the jury, the government made a
motion, pursuant to Federal Rule of Civil Procedure 50, for judgment
as a matter of law. The district court granted the government’s Rule
50 motion with respect to Buckley’s failure-to-promote retaliation
claim. The court premised its ruling on, inter alia, the lack of a legally
sufficient evidentiary basis to find that the relevant decisionmakers
(Simpkins and Brown) knew that Buckley was an active participant
in the Segar litigation, rather than simply a passive member of the
plaintiff class. The court rejected Buckley’s reliance on Ryan’s testi-
mony to establish Simpkins’s knowledge, characterizing that testi-
mony as "too slender a reed to permit the jury to speculate on whether
Mr. Simpkins . . . knew that [Buckley] was . . . more than a member
of the class." J.A. 605.13
Thereafter, on November 3, 2006, the remaining claims — for fail-
ure to promote based on race (Vacancy 364 only) and sex (Vacancies
365 and 364), and for retaliatory negative review — were submitted
to the jury. Later that same day, the jury returned a verdict in the gov-
13
In granting the government’s Rule 50 motion on Buckley’s failure-
to-promote retaliation claim, the district court also rejected the theory
that Email 1 constituted protected opposition activity. See supra note 12.
The court further rejected an assertion by Buckley that the government
had contravened the Segar 2000 Interim Order, by way of Acting Deputy
Administrator Simpkins’s involvement in the creation of the Short Lists
for Vacancies 365 and 364 despite his membership on the Career Board,
and that this violation was itself proof of retaliation. See supra note 7.
Additionally, the court awarded Rule 50 judgment to the government on
Buckley’s geographic-reassignment retaliation claim, on the ground that,
inter alia, Buckley failed to demonstrate that her transfer to the Miami
field office constituted a materially adverse action. See supra note 11.
Notably, however, the court accepted that the failure to promote (i.e., the
removal of Buckley from the Short Lists for Vacancies 365 and 364) and
the negative review (i.e., the downgrading of Buckley’s 2002 perfor-
mance appraisal) could be deemed as materially adverse actions. The
parties do not contest any of those rulings herein.
BUCKLEY v. MUKASEY 15
ernment’s favor, and the district court entered judgment against Buck-
ley.
3.
On November 20, 2006, Buckley filed a motion for a new trial,
pursuant to Federal Rule of Civil Procedure 59. She contended, inter
alia, that the district court had erred in limiting discussion at trial of
the Segar litigation, in granting Rule 50 judgment as a matter of law
on her failure-to-promote retaliation claim, and in refusing to give an
adverse inference instruction against the government for spoliation of
evidence. By order of December 28, 2006, the court denied Buckley’s
Rule 59 new trial motion. See Buckley v. Gonzales, No. 1:06-cv-
00420 (E.D. Va. Dec. 28, 2006) (the "Buckley Post-trial Order").14
The court explained therein that it had properly limited discussion of
the Segar litigation at trial, because further information on the litiga-
tion was inadmissible under the Federal Rules of Evidence. See id. at
6-8. Next, the court concluded that it had appropriately granted the
government’s Rule 50 motion on Buckley’s failure-to-promote retali-
ation claim, in that she "failed to produce any evidence that Ryan’s
concerns [over Buckley’s conflicting roles as the DEA liaison for the
GAO study and as a plaintiff class member in the Segar litigation]
were communicated to the actual decisionmakers," and, thus, "there
was no evidence in the record to allow a reasonable jury to find the
requisite causal connection" between Buckley’s active participation in
the Segar litigation and her nonpromotion. Id. at 8. Finally, the court
reiterated its earlier ruling that Buckley was not entitled to an adverse
inference instruction against the government for spoliation of evi-
dence, because she failed to show that the "destruction of documents
was a result of intentional conduct." Id. at 9 (internal quotation marks
omitted).
Buckley timely noted this appeal, and we possess jurisdiction pur-
suant to 28 U.S.C. § 1291.
14
The Buckley Post-trial Order is found at J.A. 612-20.
16 BUCKLEY v. MUKASEY
II.
In this appeal, Buckley contends that the district court erred in
denying her a new trial on the three grounds discussed above: (1) the
restriction of trial evidence with respect to the Segar litigation; (2) the
award of judgment as a matter of law to the government on her
failure-to-promote retaliation claim; and (3) the denial of her request
for an adverse inference instruction against the government for spolia-
tion of evidence. We review the court’s denial of Buckley’s new trial
motion, made pursuant to Federal Rule of Civil Procedure 59, for
abuse of discretion. See Bryant v. Aiken Reg’l Med. Ctrs. Inc., 333
F.3d 536, 543 (4th Cir. 2003). On Buckley’s Rule 59 motion, the
court should have granted a new trial only if "the verdict is against
the clear weight of the evidence," or "is based on evidence which is
false," or (as Buckley asserts with respect to the verdict in her trial)
"will result in a miscarriage of justice." Id. (internal quotation marks
omitted). We assess each of Buckley’s asserted grounds for a new
trial in turn.
A.
First, Buckley maintains that the district court improperly limited
the trial evidence with respect to the details of the Segar litigation.
We review the court’s decision to exclude such evidence for abuse of
discretion. See Schultz v. Capital Int’l Sec., Inc., 460 F.3d 595, 606
(4th Cir. 2006). By definition, the court abused its discretion if it
made an error of law. See RZS Holdings AVV v. PDVSA Petroleo
S.A., 506 F.3d 350, 356 (4th Cir. 2007). The court’s evidentiary rul-
ing, however, even if it constitutes an abuse of discretion, "is revers-
ible only if it affects [Buckley’s] substantial rights." Schultz, 460 F.3d
at 606-07 (citing Fed. R. Evid. 103(a)).
As the district court explained during the preliminary trial proceed-
ings and in the Buckley Post-trial Order, it limited discussion of the
Segar litigation under multiple provisions of the Federal Rules of Evi-
dence: Rule 401 (defining "‘[r]elevant evidence’ [as] evidence having
any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than
it would be without the evidence"); Rule 402 (providing that
"[e]vidence which is not relevant is not admissible"); Rule 404(a)
BUCKLEY v. MUKASEY 17
(generally prohibiting the admission of character evidence "for the
purpose of proving action in conformity therewith on a particular
occasion"); Rule 404(b) (providing that "[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person
in order to show action in conformity therewith[, but] may . . . be
admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake
or accident"); and Rule 403 (allowing that, "[a]lthough relevant, evi-
dence may be excluded if its probative value is substantially out-
weighed by[, inter alia,] the danger of unfair prejudice, confusion of
the issues, or misleading the jury").
During the preliminary trial proceedings, the district court observed
that Buckley sought to introduce evidence regarding the Segar litiga-
tion in order to establish "an environment of discrimination" within
the DEA. J.A. 396. The court characterized this justification for
admitting the evidence as "nothing but . . . another way of saying pro-
pensity. These people discriminated before, . . . they are discriminat-
ing now." Id. The court deemed such propensity evidence
inadmissible, invoking Rules 402, 403, and 404(a). By the Buckley
Post-trial Order, the court further observed that the Segar litigation
evidence was properly limited under Rules 401 and 402, explaining
that
the Segar litigation, which began in 1982, involved different
decisionmakers whose racial animus cannot be attributed to
the decisionmakers here. Thus, the facts or circumstances
underlying Segar are not relevant to the employment actions
taken by [this defendant] against plaintiff.
Buckley Post-trial Order 6. Similarly, the court observed that, because
Buckley sought "to introduce the prior bad acts of other decision-
makers to show defendant’s state of mind, the evidence is inadmissi-
ble under Rule 404(b)." Id. at 7. Finally, with respect to the Rule 403
aspect of its ruling, the court determined that, "even assuming the
Segar litigation was relevant to the defendant’s state of mind in this
case, . . . the potential unfair prejudice and confusion of the issues is
manifest, and substantially outweighs any probative value" of the
Segar litigation evidence. Id.
18 BUCKLEY v. MUKASEY
Apparently, the district court misunderstood the purpose for which
Buckley sought the admission of the Segar litigation evidence. Buck-
ley did not, as the court believed, seek to use such evidence to estab-
lish either a general propensity to discriminate against African-
American employees within the DEA, or a more specific racially dis-
criminatory animus on the part of the decisionmakers in her case
based on past discriminatory acts committed by other DEA decision-
makers. Rather, Buckley intended to utilize the Segar litigation evi-
dence to demonstrate retaliatory animus, as she was required to do to
prevail on her retaliation claims. Specifically, Buckley sought to show
"that the pendency of Segar and the long history of its burden on
DEA weighed heavily on the minds of the principal decision-makers,
and that, ultimately, those decision-makers failed to promote Buckley
because of her involvement in the litigation." Br. of Appellant 19.
Buckley’s Segar litigation theory — that the government’s retalia-
tory animus was prompted by, inter alia, her Email 2 invitation to the
EEOMC to attend the initial DEA-GAO meeting — was essential to
her failure-to-promote retaliation claim, and also relevant to her
negative-review retaliation claim (though that claim could also rely
on the theory that the government’s animus stemmed from Buckley’s
post-nonpromotion internal EEO complaint). Nevertheless, under the
district court’s ruling on the Segar litigation evidence, Buckley was
barred from presenting evidence, for example, of the Segar plaintiffs’
various successes against the DEA, from the initial findings of race
discrimination to the series of injunctions controlling DEA opera-
tions, including the Segar 2000 Interim Order governing the very pro-
motions at issue in this case. Although Buckley was permitted to
introduce evidence on the requirements of the DEA’s promotion sys-
tem and its purpose of ensuring equal opportunity, she was prohibited
from mentioning to the jury that the promotion system was governed
by the Segar 2000 Interim Order or in any way connected to the nebu-
lous "ongoing litigation" against the DEA in which she was involved.
These restrictions on the Segar litigation evidence foreclosed a coher-
ent and compelling evidentiary account of the government’s alleged
retaliation. By "prohibit[ing] Buckley from introducing evidence of
the Segar [l]itigation in all but the most sanitized terms," Br. of
Appellant 17, the court prevented Buckley from demonstrating why
her participation in that litigation so rankled the relevant DEA deci-
sionmakers that they were provoked to retaliate against her.
BUCKLEY v. MUKASEY 19
We are constrained to conclude that the district court’s ruling on
the Segar litigation evidence constituted an error of law and, thus, an
abuse of discretion. As Buckley contends, retaliation claims like hers,
which are
based on retaliation for pursuing discrimination claims in
the past[,] are inextricably linked to past acts of discrimina-
tion. Because such evidence of prior bad acts speaks directly
to the defendant’s motive or intent to retaliate, such evi-
dence must be admitted if the plaintiff is to have any real
chance of proving her retaliation claim.
Br. of Appellant 17; see also, e.g., Funai v. Brownlee, 369 F. Supp.
2d 1222 (D. Haw. 2004) (observing that retaliation plaintiff presented
trial evidence supporting theory that employer developed retaliatory
animus after she obtained temporary restraining order in separate
court proceeding against co-worker for religious harassment); Fer-
nandez v. N. Shore Orthopedic Surgery & Sports Med., P.C., 79 F.
Supp. 2d 197 (E.D.N.Y. 2000) (noting that retaliation plaintiff testi-
fied at trial about being discharged shortly after entering conciliation
agreement with employer on prior administrative charge of national
origin discrimination).
Viewed in the light of its real purpose of establishing retaliatory
animus, the Segar litigation evidence is unquestionably "‘[r]elevant’"
within the meaning of Rule 401. Moreover, such evidence of other
wrongs or acts is admissible under Rule 404(b), "which allows evi-
dence of other wrongs for purposes such as proof of motive and
intent." Johnson v. Hugo’s Skateway, 974 F.2d 1408, 1413 (4th Cir.
1992) (en banc) (approving trial court’s admission under Rule 404(b)
of prior consent order prohibiting defendant’s further race discrimina-
tion against patrons, because evidence that defendant failed to comply
with terms of consent order was probative of motive and intent issues
in plaintiff’s civil rights case); see also Mullen v. Princess Anne Vol-
unteer Fire Co., 853 F.2d 1130, 1133 (4th Cir. 1988) (relying on
Rules 401 and 404(b) for proposition that "[t]he use of racially offen-
sive language by the decisionmaker is relevant as to whether racial
20 BUCKLEY v. MUKASEY
animus was behind the membership decision, and was proper evi-
dence for the jury to consider").15
Although Rule 404(b) evidence is subject to the balancing analysis
of Rule 403, "the potential importance of evidence showing state of
mind is properly weighed in the balance." Mullen, 853 F.2d at 1133.
Clearly, the critical importance of the Segar litigation evidence to
Buckley’s proof of retaliatory animus is not outweighed (much less
substantially outweighed) by any danger of unfair prejudice. Cf. id.
at 1135 (rejecting Rule 403 unfair prejudice contention with respect
to evidence of racial epithets on ground, inter alia, that "[t]he epithets
involved here are offensive precisely because they convey the idea of
racial bigotry," and "[t]he emotional reaction claimed to be unfairly
prejudicial is thus closely tied to the [requisite] inquiry into state of
mind"). To the extent there is any danger of confusion of the issues,
a limiting instruction could be utilized to caution the jury that the
Segar litigation evidence is to be considered only as evidence of retal-
iatory animus. Cf. Johnson, 974 F.2d at 1413 (approving "the district
court’s efforts to minimize any prejudicial effect on the defendants by
way of instructions to the jury"); Mullen, 853 F.2d at 1134 (observing
that "[t]he district court might have issued a cautionary instruction to
the effect that the racial statements were only to be considered on the
15
Notably, several of our sister courts of appeals have deemed evi-
dence of prior retaliatory acts against others as admissible under Rule
404(b) to prove the plaintiffs’ own retaliation claims. See, e.g., Gold-
smith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008) (con-
cluding, where plaintiff alleged that employer retaliated against him for
filing race discrimination charge, that co-workers’ "‘me too’ evidence"
was admissible as "probative of the intent of Bagby Elevator to retaliate
against any black employee who complained about racial slurs in the
workplace"); Hitt v. Connell, 301 F.3d 240, 249-50 (5th Cir. 2002)
(where plaintiff alleged retaliation for union participation, ruling that co-
workers were properly "allowed to testify that they were discharged or
otherwise discriminated against because of their participation in the
union," because such evidence was admissible as proof of motive); Mor-
ris v. Wash. Metro. Area Transit Auth., 702 F.2d 1037, 1046 (D.C. Cir.
1983) (where plaintiff asserted First Amendment retaliation claim, deem-
ing admissible, as probative of motive, "evidence showing that the
employer followed a broad practice of retaliation and responded to any
protected criticism with disciplinary action").
BUCKLEY v. MUKASEY 21
question of discriminatory intent in Mullen’s particular case, but the
outright exclusion of the evidence was improper"). Accordingly, the
district court erred as a matter of law in relying on the Federal Rules
of Evidence to limit the Segar litigation evidence as it did.
Furthermore, the trial court’s error in restricting the Segar litigation
evidence affected Buckley’s substantial rights by rendering her unable
to cogently demonstrate Segar litigation-related retaliatory animus.
See Taylor v. Va. Union Univ., 193 F.3d 219, 235 (4th Cir. 1999) (en
banc) (recognizing that evidentiary errors do not affect substantial
rights, and thus are harmless, if reviewing court is "able to say ‘with
fair assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substan-
tially swayed by the errors’" (quoting, inter alia, Kotteakos v. United
States, 328 U.S. 750, 765 (1946)) (some internal quotation marks
omitted) (alteration in original)); see also Bank of Montreal v. Signet
Bank, 193 F.3d 818, 834 (4th Cir. 1999) (concluding that trial court
committed reversible error under Kotteakos by excluding evidence of
contract terms necessary to fraud claim defense, in that "[g]iven the
great importance of the [contract] to the proper development and eval-
uation of material elements of the cause of action, it was not harmless
to exclude that evidence"). Moreover, we cannot say that the district
court’s evidentiary error did not permeate the trial, negatively affect-
ing the presentation of Buckley’s race and sex discrimination claims,
as well as her retaliation claims. We therefore conclude that Buckley
is entitled to a new trial on the claims that were, and which should
have been, submitted to the jury in the 2006 trial. See Rice v. Cmty.
Health Ass’n, 203 F.3d 283, 290 (4th Cir. 2000) ("A partial new trial
may be granted . . . only if ‘it clearly appears that the issue to be
retried is so distinct and separable from the others that a trial of it
alone may be had without injustice.’" (quoting Gasoline Prods. Co.
v. Champlin Refining Co., 283 U.S. 494, 500 (1931))).16
16
In granting a new trial on Buckley’s race and sex discrimination
claims, we do not mean to say that the court erred insofar as it ruled that
the Segar litigation evidence is inadmissible to prove discriminatory ani-
mus on the parts of the relevant decisonmakers. Buckley has acknowl-
edged that she cannot rely on the Segar litigation evidence for proof of
her race and sex discrimination claims, and that an appropriate limiting
instruction may be in order for her retrial.
22 BUCKLEY v. MUKASEY
B.
Next, Buckley asserts that the district court erred in awarding judg-
ment as a matter of law to the government, pursuant to Federal Rule
of Civil Procedure 50, on her failure-to-promote retaliation claim. We
review de novo the court’s grant of the government’s Rule 50 motion,
viewing the evidence in the light most favorable to Buckley, the non-
moving party, and drawing all reasonable inferences in her favor. See
A Helping Hand, LLC v. Balt. County, Md., 515 F.3d 356, 365 (4th
Cir. 2008); see also Int’l Ground Transp., Inc. v. Mayor of Ocean
City, Md., 475 F.3d 214, 216 n.2 (4th Cir. 2007). "We must affirm if
a reasonable jury could only rule in favor of the [government]; if rea-
sonable minds could differ, we must reverse." A Helping Hand, 515
F.3d at 365.
At trial, the district court awarded judgment as a matter of law to
the government on the failure-to-promote retaliation claim on the
ground that the evidence relied on by Buckley to demonstrate retalia-
tory animus — i.e., the testimony of DEA Chief Counsel Ryan that
she shared her concerns over Buckley’s Email 2-related conduct with
Acting Deputy Administrator Simpkins — was "too slender a reed to
permit the jury to speculate on whether Mr. Simpkins[, a key deci-
sionmaker with respect to Buckley’s subsequent nonpromotion,]
knew that she was . . . more than" a passive plaintiff class member
in the Segar litigation. J.A. 605. Thereafter, in the Buckley Post-trial
Order, the court stood by its ruling, explaining that Buckley "failed
to produce any evidence that Ryan’s concerns were communicated to
the actual decisionmakers [Simpkins and Acting Chief Inspector
Brown]," and, thus, that "there was no evidence in the record to allow
a reasonable jury to find the requisite causal connection" between
Buckley’s active participation in the Segar litigation and her nonpro-
motion. Buckley Post-trial Order 8.
We find the proposition that Ryan’s testimony was insufficient to
establish Simpkins’s knowledge to be dubious at best. Nevertheless,
we also recognize that, to the extent Ryan’s testimony and other trial
evidence failed to adequately support Buckley’s failure-to-promote
retaliation claim, it was seemingly because of the district court’s
improper restriction on the Segar litigation evidence, as discussed
supra. Accordingly, we conclude that the court erred in granting the
BUCKLEY v. MUKASEY 23
government’s Rule 50 motion on the failure-to-promote retaliation
claim, and thus reinstate that claim to be retried with the claims sub-
mitted to the jury in the 2006 trial.17
C.
Finally, Buckley contends that the district court wrongly refused
her request for an adverse inference instruction against the govern-
ment for spoliation of evidence. We review the court’s jury instruc-
tions for abuse of discretion. See A Helping Hand, 515 F.3d at 370.
Of course, "[a]n error of law constitutes an abuse of discretion." Id.;
see also RZS Holdings, 506 F.3d at 356. The "judgment will be
reversed for error in jury instructions," however, "only if the error is
determined to have been prejudicial, based on a review of the record
as a whole." Abraham v. County of Greenville, S.C., 237 F.3d 386,
393 (4th Cir. 2001) (internal quotation marks omitted).
Buckley sought an adverse inference instruction against the gov-
ernment for spoliation of evidence, i.e., the DEA’s destruction of
electronic documents, pursuant to routine internal procedures, from
the time the government could reasonably anticipate this litigation
until nearly two weeks after its discovery responses to Buckley were
due. The primary ground for the district court’s denial of Buckley’s
request — reflected in the court’s ruling during the preliminary trial
proceedings, as well as in the Buckley Post-trial Order — was that
Buckley failed to demonstrate willful or intentional conduct, rather
than mere negligence, on the part of the government. In so ruling, the
court relied on, inter alia, the following statement from our decision
in Vodusek v. Bayliner Marine Corp.:
17
We observe that the parties have engaged in some debate over
whether it is necessary for Buckley to prove "active" participation in the
Segar litigation, or whether her simple membership in the plaintiff class
is enough. Cf. Crawford v. Metro. Gov’t of Nashville & Davidson
County, Tenn., 211 F. App’x 373, 376 (6th Cir. 2006) (recognizing that,
in order to demonstrate protected opposition activity, plaintiff must show
"active, consistent ‘Opposing’ activities" (internal quotation marks omit-
ted)), cert. granted, 128 S. Ct. 1118 (2008). This issue is moot, however,
because Buckley actually relies on a theory of active participation in sup-
port of her failure-to-promote retaliation claim.
24 BUCKLEY v. MUKASEY
An adverse inference about a party’s consciousness of the
weakness of his case . . . cannot be drawn merely from his
negligent loss or destruction of evidence; the inference
requires a showing that the party knew the evidence was rel-
evant to some issue at trial and that his willful conduct
resulted in its loss or destruction.
71 F.3d 148, 156 (4th Cir. 1995).
The Vodusek plaintiff had alleged negligence, products liability,
and wrongful death claims following the death of her husband from
injuries sustained in a boat explosion and fire. See 71 F.3d at 151. "In
examining the boat to discover the cause of the explosion and fire,
[Vodusek’s expert witness], together with Vodusek’s two sons,
employed destructive methods which rendered many portions of the
boat useless for examination by the defendants and their experts." Id.
at 155. At the defendants’ request, the trial court then instructed the
jury that it was permitted to "assume that evidence made unavailable
to the defendants by acts of plaintiff’s counsel or agents . . . would
have been unfavorable to the plaintiff’s theory in the case." Id. (inter-
nal quotation marks omitted). On appeal, Vodusek contended that the
court erred in instructing the jury on the spoliation issue, because
there was no evidence on the "necessary element" of bad faith. Id. In
our opinion, however, "[w]e reject[ed] the argument that bad faith is
an essential element of the spoliation rule." Id. at 156. Rather, we
concluded that
when a proponent’s intentional [but not necessarily bad
faith] conduct contributes to the loss or destruction of evi-
dence, the trial court has discretion to pursue a wide range
of responses both for the purpose of leveling the evidentiary
playing field and for the purpose of sanctioning the
improper conduct. [The court may, inter alia,] permit the
jury to draw unfavorable inferences against the party
responsible for the loss or destruction of the original evi-
dence. An adverse inference about a party’s consciousness
of the weakness of his case, however, cannot be drawn
merely from his negligent loss or destruction of evidence;
the inference requires a showing that the party knew the evi-
BUCKLEY v. MUKASEY 25
dence was relevant to some issue at trial and that his willful
conduct resulted in its loss or destruction.
Id. (internal citations omitted). Applying this standard in Vodusek, we
determined that, because portions of the boat "were permanently
destroyed as part of [the plaintiff’s expert’s] deliberate investigative
efforts" — even if Vodusek and her expert "did not act in bad faith"
— the trial court had properly submitted the spoliation issue to the
jury. Id. at 156-57.
In its analysis of Buckley’s request for an adverse inference
instruction, the district court appears to have committed an error of
law by equating the intentional conduct necessary for such an instruc-
tion with bad faith, thereby deeming non-bad faith conduct to be neg-
ligent conduct. The court did not acknowledge that the DEA’s
document destruction, though not conducted in bad faith, could yet be
"intentional," "willful," or "deliberate." See Vodusek, 71 F.3d at 156.
Nevertheless, because we already are remanding for a new trial on
other grounds, we simply leave it to the district court to consider on
remand — consistent with our discussion herein — Buckley’s request
for an adverse inference instruction. In the circumstances, we do not
unnecessarily engage in our own assessment of whether an adverse
inference instruction is warranted, or whether Buckley was prejudiced
by the court’s prior refusal to give such an instruction.
We note, however, that the district court raised two possible alter-
native grounds for its ruling during the preliminary trial proceedings
— the failure of Buckley to secure a court order prohibiting the
DEA’s destruction of documents, and the lack of specificity in her
request for the adverse inference instruction. Because the issue of
whether Buckley was obliged to obtain a court order to ensure DEA
document preservation is likely to resurface, we simply observe that
(even absent a court order) "[t]he duty to preserve material evidence
arises not only during litigation but also extends to that period before
the litigation when a party reasonably should know that the evidence
may be relevant to anticipated litigation." Silvestri v. Gen. Motors
Corp., 271 F.3d 583, 591 (4th Cir. 2001). By contrast, we need not
comment on the issue of whether Buckley’s initial instruction request
lacked sufficient specificity. Rather, the district court may — if the
26 BUCKLEY v. MUKASEY
opportunity arises — take a fresh look at this and other relevant issues
on remand.
III.
Pursuant to the foregoing, we vacate the district court’s judgment
in favor of the government, and remand for such further proceedings
as may be appropriate on Buckley’s failure-to-promote retaliation
claim and the claims submitted to the jury in the 2006 trial.
VACATED AND REMANDED