United States Court of Appeals
For the First Circuit
No. 09-1082
ALTHEA BOOKER,
Plaintiff, Appellant,
v.
MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH (THE LEMUEL SHATTUCK
HOSPITAL); THE EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES;
EDWARD NICOSIA,
Defendants, Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Mark Booker, with whom Law Offices of Mark Booker was on
brief, for appellant.
Daniel G. Cromack, Assistant Attorney General, with whom
Martha Coakley, Attorney General, and Bryan R. Killian, Assistant
Attorney General, were on brief, for appellee.
July 15, 2010
LIPEZ, Circuit Judge. Plaintiff Althea Booker filed suit
against her employer, the Massachusetts Department of Public Health
(the Lemuel Shattuck Hospital), the Executive Office of Health and
Human Services, and certain individual defendants. A jury returned
a verdict in favor of defendants on Booker's claims of retaliation
under federal and state law, see 42 U.S.C. § 2000e-3(a); Mass. Gen.
Laws ch. 151B, § 4(4), and tortious interference with contractual
employment relations. The court then denied Booker's post-trial
motions.
On appeal, Booker first contends that the court's jury
instruction on the meaning of a "materially adverse action"
misstated the legal standard governing her retaliation claim.
Although we conclude that the adverse action instruction was
problematic, we reject that claim of error.
Booker also argues that the court erroneously refused to
instruct the jury on the doctrine of spoliation. Booker requested
an instruction that the jury could draw an adverse inference based
on the deletion of emails concerning Booker by certain hospital
employees. We conclude that Booker failed to lay a proper
evidentiary foundation for a spoliation instruction and therefore
the court did not abuse its discretion in refusing to give it.
Accordingly, we affirm the judgment.
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I.
Booker, an African-American woman, began working at the
Lemuel Shattuck Hospital (the hospital) as a telephone operator in
the late 1980s. In 2001, she was promoted to "Communications
Dispatcher II." Booker's responsibilities in her new position
included dispatching the hospital's campus police officers and
supervising the telephone operators, or "Communication Dispatcher
I's," who staffed the communications department. The
communications department performed functions such as screening and
receiving incoming calls, transferring calls to other departments,
receiving emergency calls from within the hospital, assisting with
dispatching, and greeting visitors.
On September 9, 2003, Booker met with Shawn McMullen,
then her immediate supervisor, and Edward Nicosia, then the
hospital's Deputy Director of Facilities Management,1 to express
concern that she was receiving telephone calls from her staff while
she was off duty. Nicosia explained that under her collective
bargaining agreement she was entitled to "call-back pay" for work-
related calls received at home. Later that day, Nicosia and
McMullen circulated a memorandum to Booker's staff discouraging
them from calling their supervisor at home except in emergency
situations, and copied Booker.
1
Later in 2003, Nicosia became the Acting Director of
Facilities, and sometime in the end of 2004 or beginning of 2005,
he became the Director of Facilities.
-3-
Several months later, on December 15, 2003, Booker hand-
delivered a letter to Nicosia complaining that the hospital had
discriminated against her based on race by failing to compensate
her for off-duty calls. In the letter, Booker asserted that she
was owed call-back pay for seventy-five calls she had received at
home over the past two years, and that McMullen, who is white, was
receiving off-duty calls from Booker's staff that should have gone
to her. She stated that the sole reason for this unequal treatment
was race and that her letter represented "a relatively whispering
salvo in what could become a vigorous public challenge of rampant
institutional racism at the Hospital."
Later that same day, Booker confronted McMullen in the
campus police department, located in the hospital's main lobby. In
a raised voice, Booker asked McMullen why members of her staff were
calling him after hours instead of her and whether the hospital had
a policy of only paying white supervisors for off-duty calls. She
asserted that this was racism and she would speak with a lawyer.
In early January 2004, Nicosia and McMullen had a meeting with
Booker to discuss the December 15 incident. Booker apologized for
confronting McMullen in such a public setting, but did not retract
her complaints. Ultimately, in late January, she was issued a
written warning for her behavior. On February 6, 2004, Booker
filed the first of several administrative complaints with the
Massachusetts Commission Against Discrimination (MCAD) and the
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Equal Employment Opportunity Commission (EEOC), alleging race
discrimination and retaliation.2
In the months that followed Booker's December 15 letter
of complaint, Nicosia took several actions related to payroll and
timekeeping procedures that displeased Booker. In January 2004,
Nicosia removed the communications logbook from Booker's desk and
replaced it with a new logbook. Members of the communications
department used the log to record information such as shift
assignments, staff absences, and phone calls to staff at home, and
the logbook removed by Nicosia contained entries related to
Booker's claim for call-back pay. The following month, Booker and
Nicosia had a disagreement about allocation of personal time.
Noticing that Booker had missed twelve hours of work but had not
reported the absences on her timesheet, Nicosia deducted twelve
hours of her personal time. When Booker discovered this deduction,
she informed Nicosia that she preferred to use a combination of
sick time, vacation time, and leave without pay to cover the time
off. Although Nicosia asked Booker to make this correction by
submitting a payroll adjustment form, she instead called the
payroll department and had them make the change. After discovering
that Booker made the payroll change without the appropriate
paperwork, Nicosia submitted a payroll adjustment form again
2
Booker filed a second administrative complaint for
retaliation in May 2005 and a third administrative complaint
sometime thereafter.
-5-
designating Booker's absences as personal time. Booker complained,
but Nicosia refused to have her personal time returned.
Finally, in February 2005, Nicosia learned that Booker
was logging her time in the communications log and reviewing her
own timesheets as well as those of her staff. Nicosia directed
Human Resources to make changes so that Booker was required to
enter her time in the so-called steward's log and submit her weekly
timesheets to her immediate supervisor for review.
Changes were also made to Booker's job responsibilities
over the 2004-2005 period. In the fall of 2004, Richard Wong
joined the hospital as the director of safety and security and
replaced McMullen as Booker's immediate supervisor. Sometime
thereafter, Wong hired additional police officers and informed
Booker that whenever at least five officers were on duty, an
officer would perform dispatching duties. Booker continued to fill
in as a dispatcher on an as-needed basis, around four or five times
per month, but it was no longer a regular part of her job duties.
Wong also requested that Booker get trained to perform mailroom
duties, which consisted of sorting incoming mail in the morning and
metering outgoing mail in the afternoon, so that she could cover
the mailroom on occasion. Other employees, including Wong, covered
the mailroom when the regular mailroom clerk was out, and the job
description for Booker's position, Communications Dispatcher II,
listed sorting and delivering mail as one of her job
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responsibilities. However, Booker refused the mailroom training
and resisted performing mailroom duties, viewing them as less
prestigious than her other duties. As a result, she rarely covered
the mailroom, filling in there for the first time on December 30,
2005.
Finally, in June 2005, Booker was suspended for one day
without pay following a confrontation with a campus police officer.
The officer, hurrying to get to an assigned location at the
hospital on time, exchanged his radio for the radio on Booker's
desk, which had a belt clip. Raising her voice, she chastised him
for taking her radio and called him derogatory names. People
passing through the busy hospital lobby observed the incident.
In October 2005, Booker filed this action in federal
district court against the Massachusetts Department of Public
Health (DPH), the Executive Office of Health and Human Services
(EOHHS), and four individual defendants, including Nicosia.3
Booker alleged, inter alia, that defendants retaliated against her
for complaining about discriminatory withholding of callback pay
and for filing complaints with the MCAD,4 and that the individual
3
The individual defendants named in the complaint were
Nicosia, McMullen, the hospital's Executive Director Paul Romary,
and Director of Labor Relations Jennifer Foley.
4
Although Booker brought her retaliation claims under both
state and federal law, the parties have not suggested that the
state and federal antiretaliation provisions differ in any way
material to the issues on appeal. Therefore, we focus our
analysis on the standards for retaliation under Title VII and do
-7-
defendants intentionally interfered with her contractual employment
relationships. Following pretrial dispositions not at issue in
this appeal,5 Booker proceeded to trial on her retaliation claims
against DPH, EOHHS and Nicosia (hereafter, defendants), and her
tortious interference claim against Nicosia.
At trial, the court instructed the jury as to the actions
that Booker maintained were retaliatory:
[T]he written warning issued in January of
2004; the removal of the communications
logbook from the desk where she worked; the
February 2004 incident involving Mr. Nicosia's
reduction of her personal time for an
unreported absence; the requirement that she
sign for her time on the stewards' log rather
than the communication dispatchers' log; the
reduction in her police dispatching duties;
her assignment to mailroom duties and
training, and her one-day suspension in June
of 2005.
After a five-day trial, the jury returned a verdict in
favor of the defendants on all claims. The district court denied
Booker's post-judgment motions for judgment as a matter of law and
for a new trial. On appeal, Booker contends, as she did in her
not separately analyze the analogous retaliation provision under
state law, Mass. Gen. Laws ch. 151B, § 4(4).
5
The court granted summary judgment in favor of defendants on
Booker's claims for racial discrimination, interference with the
right to be free from discrimination, and aiding, abetting,
inciting or compelling discrimination. Booker voluntarily
dismissed her claims for libel and intentional infliction of
emotional distress against all defendants, and dismissed her
tortious interference claim against all defendants except Nicosia.
Finally, the court dismissed all remaining claims against Romary,
Foley and McMullen.
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motion for a new trial, that (1) the district court improperly
instructed the jury on the required showing of a materially adverse
action for purposes of her retaliation claim, and (2) the court
erred in refusing to give a spoliation jury instruction. We
address each contention in turn.
II.
A. Retaliation Jury Instruction
At trial, the district court instructed the jury on the
requisite showing of a materially adverse action under Title VII:
Under federal and state law, Ms. Booker must
prove . . . by a preponderance of the evidence
. . . that the desire to retaliate because of
[her complaints of discrimination] was a
motivating and determinative factor in any
decision to alter Ms. Booker's terms and
conditions of employment in a materially
adverse manner . . . .
An employment action to be adverse must
materially change the terms and conditions of
the plaintiff's employment. Examples the law
gives include demotions, disadvantageous
transfers or assignments, the loss of
promotions, unwarranted negative evaluations,
toleration of harassing conduct by co-
employees, and reprisals intended to
discourage other employees from complaining
about unlawful practices or reprisals that
might be perceived in that way by other
employees looking at them reasonably.
(Emphasis added.)6
6
The next paragraph of the instructions described what were
not adverse actions, though this portion of the instruction is not
at issue:
Adverse job actions do not include hurt
feelings, subjective disappointments,
-9-
Booker contends on appeal that this instruction misstated
the legal standard applicable to her retaliation claim as set forth
in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53
(2006). First, she contends that the instruction erroneously
required a showing that an adverse action affect the terms and
conditions of her employment. Second, she argues that the final
phrase in the exemplary list of adverse actions, beginning with
"and reprisals," improperly required her to demonstrate that the
reprisals be intended to discourage, or reasonably be perceived as
intended to discourage, employee complaints.
1. Standard of Review
A party who objects to an instruction must "stat[e]
distinctly the matter objected to and the grounds for the
objection." Fed. R. Civ. P. 51(c)(1). Under the procedure
outlined in Rule 51, before the trial court charges the jury it
must inform the parties of its proposed instructions and receive
any objections. Fed. R. Civ. P. 51(b); Surprenant v. Rivas, 424
F.3d 5, 15 (1st Cir. 2005). An objection made at that time
"preserves the underlying issue for appeal." Surprenant, 424 F.3d
at 15 (emphasis added) (citing Fed. R. Civ. P. 51(c)(2)(A)). If,
disillusionment over an employer's actions, or
expected losses of job function or
responsibilities because of a business or
corporate reorganization. It also does not
[in]clude everyday workplace banter or
teasing, which all of us are familiar with.
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however, a party is "not informed of an instruction or action on a
request" during the precharge conference, the party may object
"promptly after learning that the instruction or request will be,
or has been, given or refused." Fed. R. Civ. P. 51(c)(2)(B). The
requirements of Rule 51 "are not to be taken lightly" and "there is
a high price to be paid for noncompliance." DeCaro v. Hasbro,
Inc., 580 F.3d 55, 60 (1st Cir. 2009). Failure to comply with the
rule ordinarily results in forfeiture of "the objection to which
the failure relates," and we review forfeited objections only for
plain error. Id. (citing Fed. R. Civ. P. 51(d)(2)). Our strict
enforcement of the object-or-forfeit rule serves "to compel
litigants to afford the trial court an opportunity to cure [a]
defective instruction and to prevent the litigants from ensuring a
new trial in the event of an adverse verdict by covertly relying on
the error." Flynn v. AK Peters, Ltd., 377 F.3d 13, 25 (1st Cir.
2004) (quotation marks and citation omitted).
In this case, the court discussed its tentative jury
instructions with the parties at a sidebar conference held before
the jury was charged.7 The court stated that it planned to add, at
the end of the adverse action instruction, the phrase "Reprisals
intended to discourage other employees from complaining about
unlawful practices." Booker's counsel objected, stating:
7
The court's tentative instructions apparently were not made
part of the record.
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I am concerned that, as I heard the
instruction, that the employer intended to
deter other employees, I don't think it's
necessary that he intended to deter, so long
as it was reasonably foreseeable that it would
deter. In other words, I don't believe there
is an intention requirement as to the
deterrence. It's only that it be a deterrent.
He must intend to retaliate but the effect
must, in effect, deter a reasonable employee,
not that he intended to deter others. . . .
The Burlington Court, talked about and used
language, "an adverse action consists of any
action that may dissuade a reason[able]
employee from engaging in protected activity."
In response, the court noted that it "might add, 'Or reasonably
would have been perceived by the employe[e],' but I just don't want
to turn this into a strict-liability tort." Booker's counsel did
not voice any further objection. The court gave the modified
instruction to the jury, stating that examples of adverse actions
include "reprisals intended to discourage other employees from
complaining about unlawful practices or reprisals that might be
perceived in that way by other employees looking at them
reasonably." (Emphasis added.) The court held a sidebar
conference after the charge, inviting any "[]new" objections, but
Booker's counsel raised no objection to the instruction as given.
As this account makes clear, Booker never objected in the
district court on the first ground she presses on appeal -- that
the instruction improperly stated that an adverse action must
"materially change the terms and conditions of the plaintiff's
employment." That objection is therefore forfeited. See Boston
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Gas Co. v. Century Indem. Co., 529 F.3d 8, 19 (1st Cir. 2008)
(holding that objection was forfeited where party made an objection
to court's proposed instruction, but on grounds unrelated to the
aspect it criticized on appeal).
Booker did object at the precharge conference on the
ground that the tentative instruction improperly required that a
materially adverse action be intended to discourage employee
complaints. However, the court then proposed adding instructional
language to address Booker's concern, and Booker did not object
after being apprised of the court's proposed modification or after
hearing the modified instruction given to the jury. The "purpose
of a sidebar objection is to inform the judge exactly what he got
wrong and what he should do to remedy the incipient harm." DeCaro,
580 F.3d at 61. By failing to object to the modified instruction
either before or after the charge, Booker failed to inform the
court that she believed the instruction was still problematic,
specify the grounds for her objection, or give the court an
opportunity to correct any error. Therefore, this objection is
also forfeited. See, e.g., Kirk v. Reed Tool Co., 247 F. App'x
485, 486 (5th Cir. 2007) (per curiam) (unpublished) ("[W]hile
[plaintiff] may have objected to the original jury charge, he did
not object to the supplemental charge. Therefore, our review is
only for plain error."); Cooney v. Booth, 28 F. App'x 148, 151 (3d
Cir. 2002) (unpublished) (reviewing instruction for plain error
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because "absent a specific objection following the actual charge,
[the court] had no way of knowing that its efforts to accommodate
the general objection made at the [precharge] conference had not
been wholly successful").8
Noting that Rule 51 was amended effective December 1,
2003, Booker argues that her objections were properly preserved
under the amended rule. We have acknowledged that the 2003
amendments to Rule 51 made changes to the procedure for lodging
objections. Under the former version of the rule, objections were
not preserved unless they were "taken at sidebar after the trial
judge had charged the jury." Surprenant, 424 F.3d at 15 n.3
(emphasis added). Thus, even if a party properly objected to a
proposed instruction prior to the jury charge and the court then
gave the challenged instruction, that objection was forfeited
unless the party renewed the objection after the jury charge. See,
e.g., McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir. 1984). We
have also noted that the 2003 amendments "were designed in part to
ease the burden on parties in preserving their objections to
instructions where the district court had already made a definitive
ruling, on the record, rejecting a request for a particular
instruction." Colón-Millín v. Sears Roebuck De Puerto Rico, Inc.,
455 F.3d 30, 40 n.7 (1st Cir. 2006). However, the 2003 amendments
8
Although the cited opinions are unpublished, we rely on them
for their persuasive value.
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do not assist Booker here. Nothing in the amended rule suggests
that a party may preserve a claim of error by objecting to a
tentative instruction at the precharge conference, but then failing
to object after the instruction is modified to accommodate the
initial objection.9
Therefore, we review the legal standards stated in the
jury instructions only for plain error. In doing so, we bear two
precepts in mind. The first is that the district court has wide
discretion over the particular words it chooses to convey those
standards. See Johnson v. Spencer Press of Me., Inc., 364 F.3d
368, 378 (1st Cir. 2004); Interstate Litho Corp. v. Brown, 255 F.3d
19, 29 n.11 (1st Cir. 2001). The second is that jury instructions
must be viewed as a whole. See Hopkins v. Jordan Marine, Inc., 271
F.3d 1, 4 (1st Cir. 2001).
2. Analysis
In order to make out her retaliation claim under Title
VII, Booker had to show that "(1) she engaged in protected
activity; (2) she suffered some materially adverse action; and (3)
9
Booker also argues that she did not object at the postcharge
conference because the district court stated that it would hear
only "[]new" objections, and she had already objected to the
adverse action instruction at the precharge conference. However,
Booker's earlier objection was made to the court's tentative
instruction, not to the revised instruction intended to accommodate
her concerns, and thus Booker's objection to the newly modified
instruction would have been new. Moreover, counsel had a duty to
object "even at the risk of incurring the displeasure of the trial
court." Flynn, 377 F.3d at 25 (internal quotation marks and
citation omitted).
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the adverse action was causally linked to her protected activity."
Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73, 81 (1st Cir.
2007). In Burlington, the Court clarified the legal standard for
the required showing of an adverse action under Title VII's
antiretaliation provision. Burlington first addressed the question
of whether the antiretaliation provision "forbids only those
employer actions and resulting harms that are related to employment
or the workplace." 548 U.S. at 61. Recognizing that an employer
can effectively retaliate against an employee through actions "not
directly related to his employment or by causing him harm outside
the workplace," the Court held that Title VII's antiretaliation
provision, unlike the statute's substantive antidiscrimination
provision, "is not limited to discriminatory actions that affect
the terms and conditions of employment." Id. at 63-64.
The Court next addressed the question of "how harmful an
act of retaliatory discrimination must be in order to fall within
the provision's scope." Id. at 61. The Court held that the
antiretaliation provision covers those "employer actions that would
have been materially adverse to a reasonable employee," that is,
actions that are "harmful to the point that they could well
dissuade a reasonable worker from making or supporting a charge of
discrimination." Id. at 57. Thus, whether an action is materially
adverse is judged by an objective rather than a subjective
standard. Id. at 68-69.
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a. Instruction's Language Regarding Reprisals
"Intended to Discourage" Employees or
Reasonably "Perceived in that Way"
Relying on Burlington, Booker primarily challenges the
final clause of the adverse action instruction, "reprisals intended
to discourage other employees from complaining about unlawful
practices or reprisals that might be perceived in that way by other
employees looking at them reasonably."
Booker claims that the first clause -- "reprisals
intended to discourage other employees" -- erroneously conflated
the adverse action element of a Title VII claim, which she says
does not look to the employer's intent, with the retaliation
element, which considers the employer's retaliatory motive. She
concludes that the instruction imposed a higher burden of proof on
the adverse action element by requiring her to show that her
employer's intent was to discourage other employees' complaints.
Burlington, Booker says, only required her to show that the
employer's actions might dissuade a reasonable employee from
complaining of discrimination.
While the language in this phrase of the instruction was
awkward and created numerous potential issues, including some not
raised by Booker,10 we cannot say that the instruction on adverse
10
Though Booker claims that this clause of the instructions
imposed a higher burden of proof on her to show adverse action,
that is not necessarily the case. The clause could, for instance,
be read to allow a jury to find liability based on intent without
materiality, a standard that would lessen Booker's burden.
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action was error. When evaluating claims of error in jury
instructions, our task is not to parse particular phrases, but to
look at the instructions as a whole in light of the relevant
standard of review. Taken together, the adverse action
instructions were not so clearly divergent from the Burlington
standard as to constitute plain error.
The challenged portion of the instruction was part of a
longer sentence listing examples of materially adverse actions; it
was not the lone basis given to the jury to understand the legal
definition of an adverse action. Whatever objection there might be
to the challenged phrase of the "reprisals" portion of the
instruction, the instruction was saved by the alternative
formulation at the end of the sentence: "or reprisals that might be
perceived in that way by other employees looking at them
reasonably."
Given its placement, the likely reading of the final
phrase (and the meaning ascribed to it by the district court) was
that it referred to "reprisals that might be perceived in that way
[that is, as discouraging complaints about unlawful practices] by
other employees looking at them reasonably."
That interpretation accurately captures the Burlington
standard: it conveys that the standard is an objective one, based
on the vantage of a reasonable employee, and that the critical
inquiry is whether the reprisals might deter a reasonable employee
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from complaining of discrimination. That interpretation is also
reinforced by the context of this phrase in relation to the rest of
the jury instructions: it immediately preceded a paragraph further
explaining to the jury that adverse actions did not include things
like "hurt feelings" and "subjective disappointments" that might
dissuade a hyper-sensitive employee but would not deter a
reasonable employee. Viewed as a whole, the adverse action
instruction was not plainly erroneous. We do, though, recommend
that instructions on retaliation hew more closely to Burlington and
Dixon.
b. Instruction's Language that "Employment
Action to be Adverse Must Change the Terms
and Conditions" of Employment
Booker also contends that the adverse action instruction
erroneously stated that an adverse action must "change the terms
and conditions of the plaintiff's employment." However, while
Booker correctly notes that the antiretaliation provision of Title
VII "is not limited to discriminatory actions that affect the terms
and conditions of employment," Burlington, 548 U.S. at 64, the
district court was entitled to tailor its instruction to the
evidence presented at trial. Each of the allegedly retaliatory
acts against Booker, including written warnings, personal time
allocation, modifications in payroll procedures, changes or
reductions in job duties, and suspension without pay, were related
to her employment and occurred at the workplace. Cf. Burlington,
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548 U.S. at 63-64 (citing examples of actionable retaliation
causing harm "outside the workplace," including FBI's refusal to
investigate death threats against employee and employer's filing of
false criminal charges against former employee). On the facts of
this case, the court properly confined its instruction to
workplace-related actions. Therefore, we cannot say that this
portion of the instruction was erroneous.
B. Spoliation Jury Instruction
Booker next contends that the court erred in refusing to
instruct the jurors that they could draw an adverse inference if
they found that defendants destroyed documents relevant to Booker's
claims.
1. Evidence and Requested Instruction on Spoliation
At trial, Booker cross-examined three hospital employees
about their deletion of email correspondence concerning Booker.
Wong, who became Booker's immediate supervisor in the fall of 2004,
testified that shortly after he began working at the hospital, he
was informed that Booker had filed an administrative complaint
against the hospital and that it was possible he could become a
defendant, although he did not know the subject matter of her
claims. Wong further testified that he regularly deleted all of
the emails in his "sent" and "deleted" email folders every thirty
days, and did not do anything in particular to preserve emails
concerning Booker. Paul Romary, the hospital's executive director,
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testified that he received a copy of Booker's December 2003 letter
of complaint. He explained that he received a hundred emails a
day, some of which he deleted, and made no special effort to
preserve his emails concerning Booker. Barbara McLaughlin, an
executive vice president of the hospital and Wong's supervisor
beginning in December 2005, testified that she never deleted any
emails concerning Booker.
Prior to trial, Booker submitted a proposed jury
instruction on the spoliation of evidence:
If the evidence indicates that a party has
destroyed records relevant to a pending
lawsuit or that may be relevant to a lawsuit
that could arise in the future, you may
reasonably infer that the party probably did
so because the records would harm its case.
The non-destroying party need not have offered
direct evidence of a cover-up for you to infer
that the party who destroyed evidence did so
because the records were unfavorable to its
position or would harm its case.
The court refused to give the requested instruction, and Booker
recorded her objection at the precharge conference. In its order
denying Booker's motion for a new trial, the court again rejected
Booker's claim that the jury should have been given the spoliation
instruction. The court reasoned that "because Booker did not
present any evidence at trial that Wong or defendants engaged in
the deliberate spo[li]ation of evidence, no instruction on an
adverse inference was merited. Indeed, such an instruction would
have been misleading and prejudicial to defendants."
-21-
2. Legal Framework on Spoliation
Where a proper evidentiary foundation has been laid, "a
trier of fact may (but need not) infer from a party's obliteration
of a document relevant to a litigated issue that the contents of
the document were unfavorable to that party." Testa v. Wal-Mart
Stores, Inc., 144 F.3d 173, 177 (1st Cir. 1998); see also Nation-
Wide Check Corp., Inc. v. Forest Hills Distribs., Inc., 692 F.2d
214, 217-218 (1st Cir. 1982) (Breyer, J.). This adverse inference
is based in part on the commonsense observation that a party who
"destroys a document (or permits it to be destroyed) when facing
litigation, knowing the document's relevancy to issues in the case,
may well do so out of a sense that the document's contents hurt his
position." Testa, 144 F.3d at 177; accord Nation-Wide Check, 692
F.2d at 218. The inference is also based on prophylactic and
punitive rationales: it serves to deter litigants from destroying
relevant evidence prior to trial and to penalize a party whose
misconduct creates the risk of an erroneous judgment. Nation-Wide
Check, 692 F.2d at 218.
Before an adverse inference can arise, the sponsor of the
inference must lay an evidentiary foundation, proffering evidence
sufficient to show that the party who destroyed the document "knew
of (a) the claim (that is, the litigation or the potential for
litigation), and (b) the document's potential relevance to that
claim." Testa, 144 F.3d at 177; see also id. at 178 (noting that
-22-
adequate foundation depends upon evidence of "institutional notice
-- the aggregate knowledge possessed by a party and its agents,
servants and employees"). A spoliation instruction is not
warranted absent this threshold showing, because the trier of fact
would have no basis for inferring that the destruction of documents
stemmed from the party's consciousness that the documents would
damage his case.
A "trial court's decision to give or refuse an adverse
inference instruction is reviewed for an abuse of discretion."
Gilbert v. Cosco, 989 F.2d 399, 406 (10th Cir. 1993); see also
United States v. St. Michael's Credit Union, 880 F.2d 579, 597 (1st
Cir. 1989) (stating that trial court's decision to give or refuse
missing witness instruction is committed to its sound discretion).
3. Analysis
As an initial matter, Booker argues that the district
court applied the wrong legal standard when it stated that because
there was no evidence presented at trial that "Wong or defendants
engaged in the deliberate spo[li]ation of evidence, no instruction
on an adverse inference was merited."11 However, we understand the
11
We note that at the earlier precharge conference, in
response to Booker's objection to its refusal to give the
spoliation instruction, the court stated: "I think the law is clear
that I don't have to instruct on that. I just have to permit
argument if there is a basis for it from the evidence." On appeal,
the parties do not challenge the propriety of the court's
suggestion that Booker could argue for an adverse inference to the
jury. Therefore, we take no position on whether a court can
properly decide that there is sufficient evidence to permit the
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district court's reference to "deliberate" spoliation as simply a
shorthand for the evidentiary foundation required to support an
adverse inference. In other words, the district court concluded
that Booker failed to make the required threshold showing that
defendants destroyed emails (or permitted their destruction) while
on notice of Booker's claims and the emails' potential relevance to
those claims. Therefore, the jury would have no basis for
inferring that defendants destroyed the emails "out of a sense that
the document's contents hurt [defendants'] position," and so a
spoliation instruction was not warranted. Testa, 144 F.3d at 177;
see also Nation-Wide Check, 692 F.2d at 219.
Booker further contends that the court erred in finding
that she failed to lay an adequate foundation for a spoliation
instruction. She contends that she produced sufficient evidence at
trial to prove that at the time defendants deleted the emails (or
permitted their destruction), they had knowledge both of her claims
against them and of the emails' potential relevance to those
claims.
We conclude that the court did not abuse its discretion
in concluding that the evidence at trial was insufficient to merit
a spoliation instruction. Booker presented no evidence that
parties to argue for an adverse inference to the jury, while at the
same time declining to give a spoliation instruction. In this
case, our focus is on whether the court correctly concluded that
the evidence at trial was insufficient to support a spoliation jury
instruction.
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McLaughlin deleted any emails concerning her, whether potentially
relevant or not. Indeed, McLaughlin testified repeatedly that
although she sometimes deleted emails, she never deleted any emails
concerning Booker. Booker did elicit testimony from Wong and
Romary that they regularly deleted their emails and may have
deleted some concerning her. However, she proffered no evidence
that any of those emails were even potentially relevant to her
claims in this case, or that defendants knew of their potential
relevance. Although permitted to cross-examine Wong and Romary
about their deletion of emails, Booker did not question either
witness about the content of the deleted emails or about whether
the emails were relevant to her claims.
Furthermore, unlike many spoliation cases, this is not a
case in which a document's potential relevance to the plaintiff's
claims is apparent from the nature of the missing document itself.
See, e.g., Testa, 144 F.3d at 177 (finding notice of potential
relevance where company destroyed purchase order for delivery on
date of plaintiff's injury, and company's "defense from the start
was anchored on the premise that it had no reason to anticipate any
deliveries on the day in question"); Blinzler v. Marriot Int'l,
Inc., 81 F.3d 1148, 1158-59 (finding notice of potential relevance
where hotel destroyed log of outgoing phone calls from day of hotel
guest's death, and hotel knew of guest's death and of plaintiff
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spouse's "persistent attempts" to discover when the hotel placed
the call for emergency aid).
In sum, Booker produced evidence showing merely that two
hospital employees, Wong and Romary, routinely deleted their
emails, some of which may have concerned her. She produced no
evidence that defendants destroyed emails with knowledge that the
emails were potentially relevant to her claims in this case.
Because Booker failed to establish the required evidentiary
foundation for an adverse inference, the court properly concluded
that a spoliation instruction was not warranted.12
III.
For the foregoing reasons, the judgment is affirmed.
12
Booker also notes that Wong testified that he discarded a
United States Coast Guard Manual, which, she contends, was relevant
to her claims because he relied on it for his decision to
reallocate police dispatching duties at the hospital. However, the
manual was not unique and, to the extent it was relevant, Booker
could have obtained a copy of the publication from the Coast Guard.
The court did not abuse its discretion in not permitting an adverse
inference based on the discarded manual.
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