United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 14, 1998 Decided July 7, 1998
No. 97-7165
Isaiah Webb,
Appellee
v.
The District of Columbia,
Appellant
Consolidated with
No. 97-7239
---------
Appeals from the United States District Court
for the District of Columbia
(No. 90cv02787)
Donna M. Murasky, Assistant Corporation Counsel, ar-
gued the cause for appellant, with whom John M. Ferren,
Corporation Counsel, Charles L. Reischel, Deputy Corpora-
tion Counsel, and Carol E. Burroughs, Assistant Corporation
Counsel, were on the briefs.
Lynn Estes Calkins argued the cause for appellee, with
whom Michael L. Martinez, Melinda Burrows, and Theodore
W. Small, Jr., were on the brief.
Before: Wald, Williams, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: In 1990, Isaiah Webb ("Webb"), an
African-American male correctional officer, sued the District
of Columbia Department of Corrections ("the District"), alleg-
ing that he had been unlawfully denied promotion to more
than one hundred positions for which he had applied. In
1994, the District terminated Webb for sexually harassing two
female co-workers. After the district court dismissed many
of his claims, Webb filed an amended complaint in 1996 that
limited his claims of discrimination to three positions and
added a claim of retaliatory termination. As discovery pro-
ceeded, it became clear that the District, in accordance with
general internal policies and in contravention of federal regu-
lations, had discarded portions of Webb's personnel file as
well as other files relevant to the positions at issue. Webb
moved for sanctions, and the district court, concluding that
the destruction of documents was too extensive to permit a
trial to go forward, entered a default judgment against the
District and ordered that Webb be placed in one of the
positions for which he had applied, declining to consider the
District's evidence of Webb's harassment activities. Because
we believe that the district court did not give adequate
consideration either to alternative sanctions or to the Dis-
trict's harassment evidence, we vacate the default judgment
against the District and remand for further proceedings.
I. Background
Webb was hired as a probationary correctional officer with
the District in January 1973 at a DS-6 level. He received
numerous promotions and wage increases throughout the
succeeding years, eventually attaining the rank of Superviso-
ry Correctional Officer, a DS-11 position, by 1990. At this
point, in Webb's view, his ascent stalled. On November 13,
1990, after exhausting his administrative remedies, Webb
brought a pro se suit against the District, alleging that
between November 1983 and November 1990, he had applied
for and was denied promotion to more than one hundred
positions 1 on the basis of his sex, race, and/or personal
appearance in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. s 2000e et seq., and 42 U.S.C. s 1981.2 Webb
sought an injunction ordering the District to promote him and
an award of back pay. In June 1994, while proceedings in his
nonselection suit were ongoing, the District terminated Webb
for the sexual harassment of two female co-workers, Barbara
Shank ("Shank") and Sandra Stevens ("Stevens").
The District moved to dismiss the nonselection suit or, in
the alternative, for summary judgment. In Webb v. District
of Columbia (Webb I), 864 F. Supp. 175 (D.D.C. 1994), the
district court granted the motion in part and denied it in part,
retaining only ten of Webb's claims of racial discrimination,
seventeen of his claims of sex discrimination, and forty-two of
__________
1 Webb's initial complaint did not identify any specific position
to which he had been allegedly denied promotion. His first amend-
ed complaint included claims that he had been denied promotion to
several positions in retaliation for his protected activity. On May
12, 1992, the district court directed Webb to file a second amended
complaint setting forth with particularity the positions for which he
applied and was not selected. That complaint, filed on September
9, 1992, listed sixty-nine individuals who Webb claimed had been
selected over him for various positions, although the complaint
noted that Webb's claims were not limited to those examples.
In 1992, Webb was promoted to a DS-12 chaplain's position but
contended that the discriminatory denial of more than one hundred
DS-12 positions from 1983 to 1992 hampered his advancement to
DS-13 and DS-14 positions. See Webb v. District of Columbia, 864
F. Supp. 175, 179 n.3 (D.D.C. 1994).
2 Webb also asserted claims under other federal and constitu-
tional provisions; these claims, as well as his allegations of discrimi-
nation based on personal appearance, were eventually abandoned.
his claims of retaliation.3 The court also granted Webb leave
to amend his complaint to add a claim of retaliatory discharge
and race/sex discrimination resulting from his 1994 termi-
nation. Id. at 187. On November 1, 1996, Webb (for whom
counsel had been appointed) filed his fourth amended com-
plaint. The complaint limited Webb's claims of discrimination
to three positions--Special Assistant, Correctional Program
Officer, and Supervisor Correctional Officer/Major 4--and in-
cluded a claim of retaliatory discharge pursuant to 42 U.S.C.
s 2000e-3. With the scope of the suit thus narrowed, the
district court ordered that the discovery process conclude by
February 24, 1997,5 and set a trial date of March 24, 1997.
Webb v. Government for the Dist. of Columbia, Dep't of
Corrections (Webb II), 175 F.R.D. 128, 130 (D.D.C. 1997).
Beginning in 1990, Webb had served on the District numer-
ous requests and interrogatories asking for information and
__________
3 The grounds for dismissal included failure to state a claim for
which relief could be granted, failure to exhaust administrative
remedies and untimeliness. See, e.g., Webb I, 864 F. Supp. at 181
(noting that eleven of the selectees listed in the complaint appeared
twice and that of the remaining selectees, eighteen were black
males).
4 Webb identified the following positions and vacancy announce-
ment numbers: Special Assistant to the Director (DC-89-125);
Major (DC-90-167); and Correctional Program Officer (DC-89-
163). Patricia Britton was selected for DC-89-125. Webb claimed
that Robert Fulton and Steven Smith were selected for DC-90-167;
the District asserted that although these two were among the
individuals selected for the position, the position was ultimately not
filled and both men subsequently were promoted to Major through
other applications. The District also claimed that no vacancy
announcement numbered DC-89-163 existed and that the selectee
for DC-89-63, for which Webb applied, was an African-American
male. Webb abandoned this claim during pretrial proceedings, thus
limiting his claims of discrimination to two positions.
5 Discovery had originally been scheduled to conclude by Janu-
ary 24, 1997, but the district court extended the period by one
month due to the District's "failure to produce discovery in a timely
documents relating to his nonselection and termination
claims. His ninth such request, on October 30, 1996 (the first
to be prepared by counsel), included a request for documents
from Webb's personnel file as well as documents from the
"merit case files" for the positions identified in his complaint.6
After the District informed Webb's counsel that it could not
locate Webb's personnel file, Webb moved for sanctions as
well as to compel the District's full response to his discovery
requests. As part of its opposition to Webb's motion, the
District submitted two declarations to explain its inability to
comply fully with Webb's requests. In the first declaration,
Joan Murphy ("Murphy"), a Supervisory Personnel Manage-
ment Specialist with the District of Columbia, stated that she
believed that the merit case files relevant to Webb's case
were destroyed two years after the end of the selection
process in accordance with District regulations. In the sec-
ond declaration, Karen Adams ("Adams"), also a Supervisory
Personnel Management Specialist with the District of Colum-
bia, stated that although she had located Webb's personnel
file, all "temporary records" had been removed and discarded
in preparation for routine archiving. Although Adams could
not identify the number or content of any discarded docu-
ments, she noted that the term "temporary records" would
include corrective or adverse action final decision letters as
well as official reprimands.7 The District thus asserted that
it had responded to the bulk of Webb's requests and where it
had not done so, it had acted in good faith. See Defendant's
Opposition to Plaintiff's Motion to Compel and Request for
Sanctions (February 3, 1997).
__________
fashion." Webb v. Government for the Dist. of Columbia, Dep't of
Corrections, 175 F.R.D. 128, 130 (D.D.C. 1997).
6 "Merit case files" are used by the District of Columbia's
Office of Personnel for each job vacancy and generally contain the
qualification standard for the position, the applications received, and
paperwork relating to the selection process and decision. Webb II,
175 F.R.D. at 135.
7 Notwithstanding Adams's statement, the District's supple-
mental responses to Webb's discovery request failed to note, as
required by the document request, that portions of Webb's person-
nel file had been destroyed, a failure the district court characterized
as a "glaring omission." Webb II, 175 F.R.D. at 134.
On March 1, 1997, the district court granted Webb's motion
for sanctions for destruction of the documents, stating that
the appropriate sanction would be determined at a later date.
The court also granted Webb's motion to compel and ordered
the District to respond fully to Webb's discovery requests by
March 6, 1997, and to provide written confirmation of its
compliance. The District's supplementary responses, inter
alia, identified Walter Ridley and Earthel C. Foster as
individuals who participated in the selection process for va-
cancy announcement 89-125 and Bernard Braxton, Douglas
Stempson, and Warren Bragg as the interviewing committee
for vacancy announcement 90-167.8
On March 20, 1997, the second day of the pretrial confer-
ence, the court informed the parties that it would enter a
default judgment in Webb's favor. It thus vacated the trial
date and requested that Webb submit proposed findings of
fact and conclusions of law. The District moved for reconsid-
eration. On August 4, 1997, the district court denied the
District's motion, finding that because the destruction of
documents was "far more extensive than originally represent-
ed," the only appropriate action was the entry of a default
judgment in Webb's favor. Webb II, 175 F.R.D. at 129.
Because "[a] sanction for failure to preserve evidence is
appropriate only when a party has consciously disregarded its
obligation to do so," Shepherd v. American Broadcasting
Cos., Inc., 62 F.3d 1469, 1481 (D.C. Cir. 1995), the district
court first determined whether the District had knowingly
violated 29 C.F.R. s 1602.31,9 which requires government
__________
8 In the joint pretrial statement submitted to the district court,
the District identified Walter Ridley, Earthel Foster, and Bernard
Braxton as witnesses to be called to testify on the selection process-
es for the positions at issue. See Joint Pretrial Statement (March
12, 1997). Webb moved to exclude Ridley and Foster on the
ground that the District had not identified these individuals until
March 6, 1997. See Plaintiff's Motion in Limine to Exclude Defen-
dant's Proposed Witnesses and Evidence Related Thereto (March
18, 1997).
9 29 C.F.R. s 1602.31 provides:
entities to maintain all personnel files for two years from the
__________
Any personnel or employment record made or kept by a
political jurisdiction (including but not necessarily limited to
requests for reasonable accommodation, application forms sub-
mitted by applicants and other records having to do with
hiring, promotion, demotion, transfer, layoff, or termination,
rates of pay or other terms of compensation, and selection for
training or apprenticeship) shall be preserved by the political
jurisdiction for a period of 2 years from the date of the making
of the record or the personnel action involved, whichever
occurs later. In the case of involuntary termination of an
employee, the personnel records of the individual terminated
shall be kept for a period of 2 years from the date of termi-
nation. Where a charge of discrimination has been filed, or an
action brought by the Attorney General against a political
jurisdiction under title VII or the ADA, the respondent political
jurisdiction shall preserve all personnel records relevant to the
charge or action until final disposition of the charge or the
action. The term "personnel record relevant to the charge,"
for example, would include personnel or employment records
relating to the person claiming to be aggrieved and to all other
employees holding positions similar to that held or sought by
the person claiming to be aggrieved; and application forms or
test papers completed by an unsuccessful applicant and by all
other candidates for the same position as that for which the
person claiming to be aggrieved applied and was rejected. The
date of final disposition of the charge or the action means the
date of expiration of the statutory period within which a person
claiming to be aggrieved may bring an action in a U.S. district
court or, where an action is brought against a political jurisdic-
tion either by a person claiming to be aggrieved or by the
Attorney General, the date on which such litigation is terminat-
ed.
The regulation thus requires that "an employer notified of a charge
of discrimination preserve relevant personnel records until the
charges' final disposition." Hicks v. Gates Rubber Co., 833 F.2d
1406, 1418 (10th Cir. 1987). In her deposition, Murphy stated that
she was "somewhat" familiar with this requirement, although she
was unaware of how long records were to be maintained. See Webb
II, 175 F.R.D. at 141. The District does not now challenge the
district court's conclusion that it violated this regulation in the
destruction of certain documents from its files.
making of the record or the date of the action involved and to
preserve those records relevant to a filed charge of discrimi-
nation until final disposition of the charge. Because Webb
had been terminated in June 1994, and the evidence showed
that records from his personnel file had been destroyed in
late 1994 or early 1995, the district court concluded that the
District had engaged in a clear violation of the regulation.
Next, the court rejected the District's claim that it did not
have sufficient notice of which positions plaintiff intended to
challenge, stating that Webb's second amended complaint,
filed on May 12, 1992, named "the selectees for the positions
[identified], together with the allegations of a pattern and
practice of discrimination" and thus was "sufficient to put the
District on notice that the relevant documents should have
been retained." Webb II, 175 F.R.D. at 144. (The court was
troubled, moreover, by the fact that the record indicated that
"there was no procedure in place to ensure that relevant
employment records were flagged so that they would not be
destroyed." Id.) Finally, the court determined, based on the
testimony adduced during the hearings, that the District
knew of the requirement to preserve employment records and
willfully chose to ignore it. Id. at 145. It thus held that
some sort of sanction for the destruction of documents was
appropriate and that, in accordance with the case law of this
circuit, a default judgment was the only appropriate sanction.
Following this decision, the District proffered several sum-
maries of sexual harassment claims involving Webb that had
been submitted in other ongoing litigation and contended that
Webb would ultimately have been discharged on harassment
grounds even if he had not been terminated for discriminato-
ry reasons.10 On September 10, 1997, the court held that it
__________
10 The claim summaries were filed as part of the litigation in
Neal v. Director, Dist. of Columbia Dep't of Corrections, in which
the district court found that the District had tolerated widespread
sexual harassment of female employees at the Department of
Corrections. In Bonds v. District of Columbia, 93 F.3d 801 (D.C.
Cir. 1996), cert. denied, 117 S. Ct. 2453 (1997), this court reversed
the discovery sanction imposed against the District in Neal and
would not consider this evidence 11 and awarded Webb
$80,745.35 in back pay, $75,000 in compensatory damages,12
and $4,018.93 for medical expenses.13 The court also directed
that the District rehire Webb to a DS-12 Special Assistant
position, the position for which he applied in 1989, with "such
other pecuniary compensation as one reinstated would be
entitled to receive." 14 Joint Appendix ("J.A.") 60.
The District appealed. Before this court, the District does
not contest the district court's conclusion that the District
discarded files relevant to Webb's claims in violation of
federal regulations and thus that some sanction is appropri-
ate. See, e.g., Shepherd, 62 F.3d at 1478 ("[A] district court
may impose issue-related sanctions whenever a preponder-
ance of the evidence establishes that a party's misconduct has
tainted the evidentiary resolution of the issue."). It does
challenge, however, the district court's conclusion that default
was the only appropriate sanction for its misconduct and the
__________
remanded the case for further proceedings. The parties subse-
quently settled the case.
11 The court refused to consider the claim summaries because it
believed the evidence went to the merits of Webb's case. Because a
default judgment was entered against the District, the District had
"lost the opportunity to challenge the merits of plaintiff's claims";
thus, "taking plaintiff's well-plead [sic] allegations as true, the court
must conclude that this proffered reason [sexual harassment] was a
pretext, and that plaintiff was fired in retaliation for complaining of
race and gender discrimination." Joint Appendix 52.
12 In this regard, the district court noted that "[t]he branding of
plaintiff by his employer as a sexual harasser was an egregious act
that affected both plaintiff's professional and personal life." J.A.
58.
13 The district court also ordered, on December 2, 1997, that
the District pay attorneys' fees in the amount of $207,294.25 and
costs in the amount of $25,125.92. J.A. 121.
14 The monetary awards and injunctive relief were subsequent-
ly stayed pending appeal.
requirement that Webb be reinstated to a supervisory posi-
tion despite strong evidence of sexual harassment.
II. Analysis
A.The Default Judgment
A district court may order sanctions, including a default
judgment, for misconduct either pursuant to Rule 37(b)(2) of
the Federal Rules of Civil Procedure, which authorizes a
court to assess a sanction for violation of a discovery order, or
pursuant to the court's inherent power to "protect [its] integ-
rity and prevent abuses of the judicial process." Shepherd,
62 F.3d at 1474. In Shea v. Donohoe Construction Company,
795 F.2d 1071 (D.C. Cir. 1986), we set forth three basic
justifications that support the use of dismissal or default
judgment as a sanction for misconduct. First, the court may
decide that the errant party's behavior has severely ham-
pered the other party's ability to present his case--in other
words, that the other party "has been so prejudiced by the
misconduct that it would be unfair to require him to proceed
further in the case." Id. at 1074. Second, the court may take
account of the prejudice caused to the judicial system when
the party's misconduct has put "an intolerable burden on a
district court by requiring the court to modify its own docket
and operations in order to accommodate the delay." Id. at
1075. And finally, the court may consider the need "to
sanction conduct that is disrespectful to the court and to
deter similar misconduct in the future." 15 Id. at 1077. A
sanction imposed pursuant to any of these considerations
must be based on findings supported by the record. Bonds v.
District of Columbia, 93 F.3d 801, 809 (D.C. Cir. 1996), cert.
denied, 117 S. Ct. 2453 (1997).
Although our review of a district court's order of default
under either source of authority looks only to whether an
__________
15 Although Shea concerned dismissal ordered pursuant to Rule
37(b), we have also held that these considerations are appropriate
when a district court orders dismissal pursuant to its inherent
power. See, e.g., Ripalda v. American Operations Corp., 977 F.2d
1464, 1466 (D.C. Cir. 1992).
abuse of discretion has occurred, the review should be a
thorough, not a cursory, one. See, e.g., Bonds, 93 F.3d at 808
(Rule 37(b)); Shepherd, 62 F.3d at 1475 (inherent power).
We recognize the burdens and management responsibilities a
heavy docket places on a district court, but we must be
equally cognizant of the drastic nature of a default judgment,
which deprives a party completely of its day in court. Be-
cause disposition of cases on the merits is generally favored,
we have said that a default judgment must be a "sanction of
last resort," to be used only when less onerous methods (for
example, adverse evidentiary determinations or other "issue-
related sanctions") will be ineffective or obviously futile.
Shea, 795 F.2d at 1075 (internal quotation omitted); Shep-
herd, 62 F.3d at 1478. While we do not require a district
court, in making this judgment, to exhaust lesser sanctions
before turning to default, see, e.g., Shepherd, 62 F.3d at 1479,
we do require that the court explain its reason for issuing a
default judgment rather than a lesser sanction. This duty to
explain arises out of two different, although related, concerns.
Rule 37(b)(2) permits a district court to issue only such
orders "as are just" in response to a party's failure "to obey
an order to provide or permit discovery." Fed. R. Civ. P.
37(b)(2). The requirement that an ordered sanction be "just"
imposes a duty on the district court, particularly in the case
of severe sanctions, to give adequate consideration to "wheth-
er lesser sanctions would be more appropriate for the particu-
lar violation." Bonds, 93 F.3d at 808. When sanctions are
ordered under the court's inherent power, the need to consid-
er less onerous alternatives stems from the intrinsic need for
self-restraint in using so powerful a weapon. See, e.g., Cham-
bers v. NASCO, Inc., 501 U.S. 32, 44 (1991) ("Because of their
very potency, inherent powers must be exercised with re-
straint and discretion."). Indeed, we have noted that in order
to justify the use of a court's inherent power to order default,
the court must give "a specific, reasoned explanation for
rejecting lesser sanctions, such as fines, attorneys' fees, or
adverse evidentiary rulings." Shepherd, 62 F.3d at 1478. A
district court must state why, in light of the Shea factors, less
onerous sanctions are not sufficient. Our task of appellate
review of such orders, limited though it may be, cannot be
properly exercised if we are not assured that the district
court has fully considered whether harm caused by a party's
misconduct may be rectified by sanctions short of default.
Cf., e.g., Outley v. City of New York, 837 F.2d 587, 591 (2d
Cir. 1988) ("Before the extreme sanction of preclusion may be
used by the district court, a judge should inquire more fully
into the actual difficulties which the violation causes, and
must consider less drastic responses."). Conclusory state-
ments are not enough. Thus, in Shepherd, we held that
although the district court had concluded that " '[i]mposition
of a lesser sanction would only reward the defendants for
their misconduct in this litigation,' " id. at 1480 (quoting
Shepherd v. ABC, 151 F.R.D. 179, 192 (D.D.C. 1992)), the
court had not sufficiently explained why lesser sanctions
would " 'only reward the defendants' and fail to provide
meaningful deterrence and punishment for the misconduct."
Id. Rather, it had noted only that "[it] thought the miscon-
duct was serious and imposing a default judgment was appro-
priate" without further explanation. Id. We thus felt
obliged to remand for reconsideration of alternative sanctions
by the district court.
With these principles in mind, we proceed to examine the
district court's order of default in this case under the frame-
work set out in Shea.16 First, we consider whether a default
__________
16 The court noted that it had the power to order sanctions both
under its inherent power and under Rule 37(b)(2). See Webb II,
175 F.R.D. at 143. As we have noted, authority to impose sanctions
under Rule 37(b)(2) is triggered only by the violation of a produc-
tion order issued by the district court. Shepherd, 62 F.3d at 1474;
Attorney General v. Irish People, Inc., 684 F.2d 928, 951 n.129
(D.C. Cir. 1982). The order at issue, dated March 1, 1997, directed
the District to respond fully and completely to plaintiff's discovery
requests by March 6, 1997, and to confirm its compliance in writing.
Webb II, 175 F.R.D. at 132. In response to this order, the District
provided, on March 6, supplemental responses to Webb's document
requests and interrogatories but apparently did not provide written
confirmation that the District had complied with Webb's discovery
requests, as ordered by the court. To the extent that the default
judgment can be justified as a necessary response to the
prejudice suffered by Webb as a result of the District's
document destruction or whether an issue-related sanction
would have sufficed. We noted in Shepherd that the preju-
dice to the plaintiff engendered by the destruction of docu-
ments typically merits default in two instances: "where the
destroyed document is dispositive of the case, so that an
issue-related sanction effectively disposes of the merits any-
way, and where the guilty party has engaged in such whole-
sale destruction of primary evidence regarding a number of
issues that the district court cannot fashion an effective issue-
related sanction." Shepherd, 62 F.3d at 1479 (citations omit-
ted). We do not see that either of these circumstances is
present in this case. The evidence suggests that the person-
nel files of District employees who apply for vacant positions
are not reviewed during the selection process, see Affidavit of
Louis Chaney, Feb. 3, 1997; Deposition of Joan Murphy, Feb.
4, 1997; thus, any "temporary records" that might have been
removed from Webb's personnel file are seemingly relevant
only to Webb's claim of retaliatory termination. It does not
appear from the evidence before us that the absence of such
documents is dispositive of Webb's case or why an adverse
inference as to these documents would not have sufficed to
__________
judgment was based on the District's failure to include a statement
of confirmation in its responses, the sanction was disproportionate
to the fault. It is difficult to conceive of circumstances in which the
act of failing to state that all relevant documents have been provid-
ed, even when that omission is in direct contravention of a court
order, would justify a sanction as severe as a default judgment. To
the extent that the default judgment was a response to the Dis-
trict's inability to respond fully to Webb's discovery requests due to
its previous destruction of certain documents, we are doubtful that
the judgment may be considered an exercise of the court's authority
under Rule 37(b)(2), given that the document destruction took place
well before the order compelling a response. (More important, the
district court had already decided to impose sanctions when it
issued the discovery order.) Because, as previously noted, our
review proceeds in much the same manner whether the district
court took its authority from Rule 37(b)(2) or from its inherent
power, we need not resolve the issue here.
address any harm resulting from their destruction. First, the
only "temporary records" of potential interest would be any
"Corrective/Adverse Action Final Decision Letters" or "Offi-
cial Reprimands" in the file.17 We would have supposed that
__________
17 In her affidavit, Adams stated that she located Webb's
personnel folder in a box destined for a St. Louis records center.
She further stated, "My review of the folder for Isaiah Webb
retrieved from the St. Louis-bound box indicated to me that it had
been processed for storage in the Federal Records Center because
all the temporary records had been removed. Temporary records
which could have possibly been removed are described in the
attached copy of DC Standard Form 1258 and designated by the
mark 'LS.' "
Form 1258 is titled "Government of the District of Columbia
Official Personnel Folder Internal Audit Checklist." Documents
designated as temporary records are the following:
1) DC OF-8, Positions Descriptions (All)
2) P.O. Form 12 (Excellent/Satisfactory)
3) DCSF-52 (Resulting in Personnel Form 1)
4) DCSF-52A
5) OMBS-90, Tax Withholding--Non-Resident
6) SF-127, Request for Personnel Records--NPRS
7) SF-1152, Designation of Beneficiary--Unpaid Compensa-
tion
8) DCSF-1231, Notification--Emergency
9) Corrective/Adverse Action Final Decision Letters under 3
years old
10) Designation of Essential Employee
11) Employee Notice of Furlough
12) Employee Notification--Drug Free Workplace
13) Official Reprimands under 2 years old
14) Personnel Action Proof List
15) Position Data Proof List
16) Proof of Residency, Chapter 3, DPM
Webb would want to rely on the absence of any such docu-
ments in his file to argue that he was an exemplary employee;
the fact that the District cannot prove that Webb was ever
reprimanded would appear only to bolster his case. (Alterna-
tively, the district court could have ordered that an inference
adverse to the District be drawn that Webb had only favor-
able letters in his personnel file.) Second, as the district
court suggested, see Webb II, 175 F.R.D. at 148, an adverse
inference could even have included the existence of docu-
ments in Webb's personnel file that provided evidence of
retaliatory intent (for example, an official reprimand that
contained a phrase such as "if you continue to pursue these
claims, you will be terminated"). Of course, such an infer-
ence, even if accepted by the trier of fact, would not "effec-
tively dispose of the merits": Even if Webb's claims were a
"motivating factor" in the decision to terminate him, the
District could still prevail if it could show "that it would have
reached the same decision ... even in the absence of the
protected conduct"--in this case, by producing sufficient evi-
dence of Webb's sexual harassment activities. Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);
see also Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512-
13 (3d Cir. 1997), cert. denied, 118 S. Ct. 1516 (1998); Tao v.
Freeh, 27 F.3d 635, 639 (D.C. Cir. 1994).18 We thus cannot
agree with the district court's conclusion that "the only
adverse inference that would adequately compensate plaintiff
... would effectively dispose of the merits of the claim."
Webb II, 175 F.R.D. at 148.
We reach much the same conclusion with respect to the
prejudice caused by the missing merit case files. These files
might indeed have contained information helpful to Webb's
__________
Of these, only numbers 9 ("Corrective/Adverse Action Final Deci-
sion Letters") and 13 ("Official Reprimands") would appear to be
relevant to Webb's case.
18 This rule is intended to ensure that an employee is not placed
"in a better position as a result of the exercise of ... protected
conduct than he would have occupied had he done nothing." Mt.
Healthy, 429 U.S. at 285.
nonselection case, such as the experience and education of
other applicants and the determination of the qualifications of
each applicant.19 The absence of these documents was miti-
gated, however, by (1) the District's stipulation that it would
not assert that applicants other than the final selectee were
more qualified than Webb, see Webb II, 175 F.R.D. at 138; (2)
the provision to Webb of the personnel file of Patricia Britton,
the selectee for vacancy announcement 89-125; and (3) the
submission, albeit delayed, of the names of the individuals
who participated in the selection process. Each of these
sources provides a way for Webb to discover any helpful
evidence pointing toward the conclusion that his nonselection
was discriminatory. We therefore cannot agree, on the basis
of the current record, that lesser sanctions, such as a pre-
sumption that the missing files contained evidence favorable
to Webb, would not suffice to overcome any prejudice suf-
fered by Webb as a result of the destruction of the files.20
And to the extent that the documents would have shown that
Webb's own qualifications were incorrectly evaluated by the
__________
19 See Deposition of Joan Murphy, Feb. 4, 1997 (noting that the
Office of Personnel reviews all applications, assigns scores for level
of experience, education, and so on, and sends an alphabetical list of
the "qualified" candidates to the selecting official).
20 Such a presumption is a common sanction in response to the
destruction of documents. See, e.g., Favors v. Fisher, 13 F.3d 1235,
1239 (8th Cir. 1994); Hicks, 833 F.2d at 1419; Shipley v. Dugan,
874 F. Supp. 933, 940 (S.D. Ind. 1995) (citing cases). (The fact that,
as the district court stated, the District failed to propose an
adequate jury instruction containing an adverse inference presump-
tion, see Webb II, 175 F.R.D. at 148, should not cabin the scope of
the district court's efforts in this regard.) The most reasonable
inference to be drawn that would not be inconsistent with other
evidence would seem to be that no applicant who was not selected
was more qualified than Webb. It is conceivable, although unlikely,
that the destroyed documents contained marginal notes and the like
that reflected discriminatory intent. Although an adverse inference
presumption should not test the limits of reason, Webb would
certainly be entitled to make such an argument; the District,
likewise, would be entitled to attempt to rebut it.
Office of Personnel, Webb can make that case independently
through deposing Office of Personnel workers and asking
them to explain the process for scoring qualifications. We
therefore are not convinced by the district court's conclusion
that Webb was "so severely prejudiced by the District's
conduct that it would be unfair to require [him] to proceed
with the trial because no lesser alternative [could] compen-
sate [Webb] for the loss of evidence caused by the destruction
and delay of [the District]." Webb II, 175 F.R.D. at 145.
We next consider the extent to which the document de-
struction caused prejudice to the judicial system. Although
the district court stated that the District's conduct "ha[d]
occupied the court's attention with many hearings and mo-
tions" and thus frustrated the court's ability to provide "swift
justice" to the litigants appearing before it, id. at 146, the
court's primary concern, at least with respect to Webb's
nonselection claims, seems to have been the delay in furnish-
ing some information until the month of trial rather than the
scope of the information provided. See, e.g., id. at 145 ("By
delaying the disclosure of these names [of individuals partici-
pating in the selection process] for so long, defendant thwart-
ed plaintiff's ability to prepare for trial. This injury is
directly traceable to defendant's conduct: if the files had not
been destroyed, the information sought would have been
readily available.").21 It therefore seems that any prejudice
to Webb on this account could have been remedied by a
continuance of the trial date sufficient to permit him to
__________
21 Although we noted in Shea that "prejudice to defendants
resulting from unreasonable delay may be presumed," we also
stated that where the delay is not unreasonable, "the need to show
actual prejudice is proportionally greater." Shea, 795 F.2d at 1075
(internal quotation omitted). While it is true that, as the district
court noted, this litigation began in 1990, it was not until 1996 that
Webb, with the aid of counsel, filed his fourth amended complaint,
which narrowed the focus of his claims from over one hundred
positions to only three positions (two of which remain) and added an
additional claim of retaliatory termination. It thus may be more
appropriate to measure the effect of the delay using 1996, rather
than 1990, as a benchmark.
depose the individuals identified by the District, perhaps with
costs to be paid by the District. The district court did not
adequately state why such continuance would not be feasible,
noting merely that "the only way for the court to guarantee a
timely outcome was to set a trial date, and enforce it." Webb
II, 175 F.R.D. at 146. Of course, we are cognizant of the
district court's need to manage its schedule, and its calendar
should not be subject to the whims of recalcitrant litigants.
See, e.g., Shea, 795 F.2d at 1076 ("[W]here a party or counsel
announces at the last minute that he cannot participate in a
scheduled trial, the District Court is not required to disrupt
its well-planned trial schedule to find a new date for the
missed trial."). But it is not apparent to us from the record
below that a continuance would place an "intolerable burden"
on the district court, id. at 1075 (emphasis added), or that the
court's continued involvement in the discovery dispute would
continue to call on far more resources into the future than the
system should be required to allocate to the case. (Although
the discovery period had ended two weeks prior to the
District's identification of the selecting individuals on March
6, 1997, trial was set for nearly three weeks later, leaving
some room for the court to maneuver.) The district court's
conclusion that "an adverse inference could not have compen-
sated for the delay suffered by plaintiff and the resulting
inability to prepare for trial," Webb II, 175 F.R.D. at 148,
standing alone, tells us nothing about the availability of a
continuance to permit Webb to depose the named individuals.
We thus cannot conclude, without further explanation from
the district court, that any systemic harm suffered by the
district court warranted a default judgment.
Finally, we might uphold the judgment of default under
Shea had the district court adequately established why no
other sanction would adequately deter the District from com-
mitting similar misconduct in the future. Here, again, we
conclude that the record as it now stands does not support
such a finding. Although the district court stated that the
District "must be deterred from continuing to consciously
disregard the retention regulations," Webb II, 175 F.R.D. at
147, it did not explain why lesser sanctions would not achieve
the same effect; indeed, we were informed by the District
after oral argument that steps have been taken to alert
District of Columbia employees as to their obligations under
federal regulations to preserve employment records. See
Letter from Donna M. Murasky, Assistant Corporation Coun-
sel (May 15, 1998). Moreover, as this court noted in Bonds, if
the sanction of default is based only on deterring future
misconduct, "the more severe sanction [of default] must be
supported by a finding of flagrant or egregious misconduct by
the defendant." Bonds, 93 F.3d at 809; see also Weisberg v.
Webster, 749 F.2d 864, 871 (D.C. Cir. 1984) (dismissal pursu-
ant to Rule 37(b)(2) must be based on "willfulness or at least
gross negligence"). Although the District now concedes that
it failed to recognize its responsibility under 29 C.F.R.
s 1602.31, we do not think that its failure rose to the level of
flagrant or egregious misconduct. The record does not re-
flect that, for example, the District deliberately discarded
documents relating to Webb's case in an attempt to destroy
key evidence or that its delay in responding to Webb's
discovery requests was an intentionally dilatory effort to
"gain an unfair tactical advantage over its litigation oppo-
nent." Bonds, 93 F.3d at 812; cf. Synanon Church v. United
States, 820 F.2d 421, 423, 428 (D.C. Cir. 1987) (affirming
dismissal based on party's "willful, deliberate and purposeful
scheme" to destroy evidence) (internal quotation omitted).
Rather, it seems clear from the record that the District's fault
lay in failing to recognize that its general practice of discard-
ing files after a set period of time would result in the
destruction of materials relevant to litigation and failing to
notify employees systemwide of the federal regulations that
imposed a duty to retain such materials.22 This lack of
__________
22 Although the district court found that there was evidence
that "at least one District personnel official, Joan Murphy, had
knowledge of the existence of EEOC regulations requiring mainte-
nance of documents, yet was unaware of any procedure by which
the District would flag relevant files once litigation ha[d] been
initiated" and thus that "the District knew of the requirement, but
chose to ignore it," Webb II, 175 F.R.D. at 145, the portion of
compliance is certainly serious, and must be addressed, but it
does not appear to us to warrant sanctions as severe as
default.
At this point, then, we are not persuaded that a default
judgment was the only punitive option available to the district
court. Because, however, we recognize that Shea's analytical
framework "is not to be applied woodenly in evaluating the
myriad and diverse factors that influence district judges in
managing their caseloads," Bristol Petroleum Corp. v. Har-
ris, 901 F.2d 165, 167 (D.C. Cir. 1990), we will refrain from
substituting our judgment for the district court's. Instead,
we vacate the judgment and remand to the district court for
further consideration of less onerous sanctions.23
__________
Murphy's testimony the court cites in support of this conclusion
seems more equivocal:
Q: Are you aware of--are you familiar with the EEOC regu-
lations regarding the destruction of documents?
A: Somewhat, yes.
Q: And what do you know about those regulations?
A: I know that they're supposed to be maintained, but I don't
recall--I have not seen it in writing and I don't recall the
duration.
Q: Is there any manner by which the District flags the merit
case files for which litigation has been initiated?
A: I don't know.
Q: Do you know who would know that information?
A: No.
Q: Are you the person that would know?
A: I don't know.
Id. at 141-42 (quoting Transcript at 293).
23 Despite the district court's contention below that "[i]f this
case were to be remanded with instructions to construct a lesser
sanction, the court would be unable to do so," Webb II, 175 F.R.D.
at 148 n.16, we are confident that further exploration of the issue
will either reveal the availability of alternative sanctions or result in
B. The Remedy
Because we are remanding this case for further proceed-
ings, we address the propriety of the district court's order
directing that Webb be rehired to a DS-12 Special Assistant
position, since if Webb prevails on the merits of his unlawful
termination claim, or if the district court sufficiently justifies
its sanction of default, the issue of the appropriate remedy
will once again come to the fore.
As a general rule, a district court "has broad discretion to
fashion appropriate equitable relief for a Title VII plaintiff"
including, but not limited to, reinstatement; this court's re-
view is therefore limited to determining whether the district
court abused that discretion. Castle v. Rubin, 78 F.3d 654,
657 (D.C. Cir. 1996) (citing 42 U.S.C. s 2000e-5(g)(1) (1993));
Johnson v. Brock, 810 F.2d 219, 224 (D.C. Cir. 1987). Gener-
ally, we would not disturb a district court's decision to order
reinstatement as a remedy for a Title VII violation. We
think it important to recognize, however, that a successful
Title VII plaintiff is entitled only to appropriate equitable
relief, see, e.g., 42 U.S.C. s 2000e-5(g)(1) (1994); Castle, 78
F.3d at 657, a determination that authorizes a district court to
take into account "extraordinary equitable circumstances that
affect the legitimate interests of either party," McKennon v.
Nashville Banner Publ'g Co., 513 U.S. 352, 362 (1995).24 In
this case, the decision to reinstate Webb to a supervisory
position with the District was made without any consideration
of evidence that suggested that reinstatement may not have
been an appropriate remedy--namely, the claims of several
employees with the District that they had been harassed,
__________
a more complete explanation of why such sanctions were deemed to
be inappropriate. Although we could undertake this investigation
ourselves based on the record before us, we continue to believe, as
in Bonds, that "in light of the deferential standard of review a
statement of reasons from the district court [is] advisable." Bonds,
93 F.3d at 804 n.4.
24 This court noted in Castle, that although McKennon arose
under the Age Discrimination in Employment Act, "its principles
clearly apply in Title VII actions." Castle, 78 F.3d at 658.
sexually and otherwise, by Webb. Because that evidence
would have been relevant to the determination of whether
reinstatement 25 was an appropriate remedy, we direct the
district court on remand, should the remedy phase be
reached, to permit the District to submit such evidence.
Although reinstatement is certainly a preferred remedy in
Title VII cases, it may not always be an appropriate one.
Whether reinstatement is indeed appropriate may be deter-
mined only after careful consideration of the circumstances of
a particular case. See, e.g., Hudson v. Reno, 130 F.3d 1193,
1202 (6th Cir. 1997), petition for cert. filed, 66 U.S.L.W. 3791
(U.S. Jun. 8, 1998) (No. 97-1987); McKnight v. General
Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992). Courts
have, for example, deemed reinstatement to be inappropriate
when there is "evidence of extreme animosity" between the
plaintiff and the defendant employer, see Williams v. Valen-
tec Kisco, Inc., 964 F.2d 723, 730 (8th Cir. 1992) (internal
quotation omitted); or where the employer has expressed
"genuine dissatisfaction" with the plaintiff's job performance,
see Hudson, 130 F.3d at 1202. In these circumstances,
although reinstatement would technically make the plaintiff
whole, larger considerations of the relationship between the
plaintiff and the employer and, indeed, the environment in
which their relationship is situated, militate against ordering
reinstatement. Cf., e.g., Ford Motor Co. v. EEOC, 458 U.S.
219, 239 (1982) (rights of "innocent third parties" may be
considered in devising Title VII remedy); Thomas v. Nation-
al Football League Players Ass'n, 131 F.3d 198, 207 (D.C.
Cir. 1997) (district court "reasonably concluded that reinstate-
ment would not serve the interests of justice where the
employee engaged in behavior that could conceivably have
given rise to a legitimate discharge under other circum-
stances"); Lander v. Lujan, 888 F.2d 153, 157 (D.C. Cir.
1989) (suggesting that "[i]t may well be appropriate, perhaps
__________
25 We use the term "reinstatement" here to refer to reemploy-
ment with the Department of Corrections and not to suggest that
Webb held a Special Assistant position prior to his termination.
even required," that a district court consider the impact of
reinstatement on displaced employee).
In Webb's case, the record contains evidence that suggests
that reinstatement to a supervisory position within the De-
partment of Corrections may not be an appropriate remedy.26
The seven Neal claim summaries proffered by the District, if
__________
26 Even assuming that default was an appropriate sanction, we
believe the district court failed to distinguish between the claims
allegedly underlying Webb's termination (the complaints of Shank
and Stevens) and the claims offered by the District in support of its
contention that reinstatement was inappropriate (the seven Neal
claim summaries). Once default had been entered, each of Webb's
"allegations of fact [were to] be taken as true and each of [his]
claims ... considered established as a matter of law." Brockton
Sav. Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 13 (1st Cir.
1985); see also Black v. Lane, 22 F.3d 1395, 1399 (7th Cir.1994)
("When a default judgment is entered, facts alleged in the complaint
may not be contested."); 10 Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure
s 2688 (2d ed. 1983). If default is again determined to be an
appropriate sanction, the district court would thus be justified in
crediting Webb's allegation that "[a]lthough [the District] has al-
leged that [his] termination was the result of sexual harassment
charges brought by two DOC employees, the sexual harassment
charges are without basis and provided a mere pretext that [the
District] has used to justify its illegal conduct." Fourth Amended
Complaint (Nov. 1, 1996), at 10; cf. In re Docteroff, 133 F.3d 210,
215 (3d Cir. 1997) ("To hold otherwise would give litigants who
abuse the processes and dignity of the court an undeserved second
bite at the apple."). Significantly, however, Webb's complaint made
no allegations as to the veracity of any of the claims filed in the
Neal litigation. Thus, even if default was warranted, it was error
for the district court to hold that these claims could not be
considered simply because the claims of Shank and Stevens were
necessarily deemed to be groundless. Cf. In re Dierschke, 975 F.2d
181, 185 (5th Cir. 1992) (noting that "fundamental fairness[ ] dic-
tate[s] that a judgment by default operates as a deemed admission
only as to the relief requested in the complaint"). Of course, should
Webb's case proceed to trial on remand, the District would be
entitled to show that Shank's and Stevens's claims did in fact
constitute the reason for Webb's termination.
credited, suggest that Webb has engaged in repeated sexual
harassment of the co-workers whom he supervised, including
unwanted physical contact, see, e.g., J.A. 65 (claim summary
of Karen Dudley) ("Webb stuck his hand in her pants,
grabbed her belt buckle and pulled her towards him. Ms.
Dudley pushed him away and told him not do to that."); J.A.
86 (claim summary of Evella Fisher) ("Capt. Webb ap-
proached Ms. Fisher, began feeling her breasts and said 'I
like breast milk.' At one point, Capt. Webb actually reached
underneath Ms. Fisher's blouse and took her breast out,
feeling and squeezing it further. Ms. Fisher began crying
and quickly left Capt. Webb's office."); unwelcome sexual
advances, see, e.g., J.A. 102 (claim summary of Norma Rose
Jackson) ("... Captain Webb called Ms. Jackson into his
office, locked the door from the inside, and then requested
that Ms. Jackson perform oral sex on him.... Ms. Jackson
refused Captain Webb's request for oral sex, but Captain
Webb persisted in making unwelcome sexual advances on Ms.
Jackson"); and intimidation, see, e.g., J.A. 73 (claim summary
of Thyra Griffin) ("Captain Webb looked directly at Lt.
Griffin and indicated that 'I'm the master chess player here
and if you don't like it you can meet me on the parking lot,
better still, you can meet me on 19th Street and deal with this
300 lb. African.' "). While we by no means suggest that these
allegations proffered by the District should be accepted on
face value--that is, without the benefit of a hearing in which
Webb is permitted to contest them--we do think the district
court erred in excluding this evidence altogether in determin-
ing whether reinstatement to a supervisory position was
appropriate.27
__________
27 In McKennon, the Court held that if evidence acquired after
an unlawful termination showed wrongdoing "of such severity that
the employee in fact would have been terminated on those grounds
alone if the employer had known of it at the time of the discharge,"
513 U.S. at 362-63, reinstatement generally would be an inappropri-
ate remedy. See id. at 362 ("It would be both inequitable and
pointless to order the reinstatement of someone the employer would
have terminated, and will terminate, in any event and upon lawful
grounds."). The parties agree that the events alleged in three of
III. Conclusion
Our holding today should not be construed as any condona-
tion of the District's conduct during the prolonged discovery
phase in this case. Its failure to institute a citywide policy to
ensure that documents relevant to litigation were not routine-
ly destroyed and its less than direct responses to discovery
requests without doubt complicated and extended the discov-
ery process in this case. On the basis of the record before us,
however, we are not convinced that a default judgment was
an appropriate response to the District's misconduct. We
conclude both that the district court did not adequately
__________
the Neal claim summaries were made known to the District after
Webb's 1994 termination; those summaries should therefore have
been considered by the district court. Although the District does
not contest Webb's claim that the events described in the other four
Neal claim summaries were brought to the District's attention well
in advance of Webb's 1994 termination and yet did not result in his
discharge, we do not believe that the time frame renders these four
summaries irrelevant. To begin with, the extent of the District's
knowledge of the events in those summaries is unclear from the
record before us. It may be the case that those with the authority
to take action were left uninformed, in which case the four earlier
summaries may well be considered "after-acquired evidence" that
would have led to Webb's discharge in any event. Moreover, even
if the District chose not to terminate Webb after receiving the first
four complaints, it is entirely possible it would have chosen to
terminate him once three more complaints had been brought to its
attention. Thus, even if only three of the Neal complaints were
technically "after-acquired evidence," the cumulative effect of all
seven complaints may have been weighty enough that the District
would, in fact, have ultimately terminated Webb in response to the
events alleged. We are not in a position, on the basis of this record,
to judge what action the District might have taken in response to
these allegations. Should the district court determine that Webb
would have been terminated, however, it would be not only "inequi-
table and pointless" but also potentially harmful to reinstate Webb
to a supervisory position within the Department of Corrections,
particularly given the acknowledgment of the District, and this
court, that "sexual harassment is a long-standing problem at the
Department of Corrections." Bonds, 93 F.3d at 804.
consider discovery sanctions other than a default judgment
and that it improperly rejected evidence relevant to the
propriety of reinstatement. We therefore vacate the default
judgment against the District, as well as the order awarding
attorneys' fees and costs, and remand for further proceed-
ings.
It is so ordered.