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United States Equal Employment Opportunity Commission v. GMRI, Inc.

United States District Court, S.D. Florida, Miami Division

November 1, 2017

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
GMRI, INC., Defendant.

          ORDER ON EEOC9;S MOTION FOR SPOLIATION AND RULE 37(E) SANCTIONS

          JONATHAN GOODMAN, UNITED STATES MAGISTRATE JUDGE

         John Hiatt, a critically-acclaimed rock guitarist, pianist, singer, and songwriter whose songs have been covered by B.B. King, Bob Dylan, Bonnie Raitt, Buddy Guy, Eric Clapton, Keith Urban, and Three Dog Night (to name but a few of many performers from myriad musical genres), wrote a song released in 1995 called “Shredding the Document.” Hiatt9;s chorus in that song is: “I9;m shredding the document / I9;m keeping my mouth shut.”[1] The notion that someone shredded, destroyed, or discarded documents (or, to use other phrases from Hiatt9;s song, “doctored the evidence” in order to pursue “a cover up”) is at the heart of the sanctions motion being considered here.

         Analyzing the sanctions motion begins with the observation that Defendant GMRI, Inc. (a/k/a “Seasons 52” in this Order) filed a summary judgment motion against Plaintiff [ECF No. 24');">41], the United States Equal Employment Opportunity Commission (the “EEOC”). In it, Seasons 52 argues that the EEOC “has come up empty handed” in its effort to establish that Seasons 52 restaurants engaged in a nationwide pattern and practice of intentional age discrimination against applicants age 4');">40 and older.

         After Seasons 52 filed its summary judgment motion, the EEOC filed a Motion for Spoliation and Rule 37(c) Sanctions. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6]. Seasons 52 filed a response in opposition to the sanctions motion [ECF No. 259], and the EEOC filed a reply [ECF No. 26');">6');">6');">60].

         In its sanctions motion, the EEOC alleges that Seasons 52 failed to preserve and intentionally destroyed paper applications and interview booklets. It also alleges that Seasons 52 failed to take any steps to preserve emails sent by or to the restaurant managers involved in the very hiring decisions challenged in the EEOC9;s lawsuit.

         The sanctions motion seeks myriad types of spoliation sanctions, including an Order (1) prohibiting Seasons 52 from introducing evidence about the content of lost emails; (2) permitting the EEOC to introduce evidence of the email destruction; (3) allowing the EEOC to argue to the jury that the lost emails would have contained information supporting its claim; (4');">4) authorizing the Court to consider the lost email arguments for summary judgment purposes; and (5) permitting a permissive inference, both at the summary judgment stage and at trial, that the emails, had they been preserved, would mention a Seasons 52 preference for younger applicants.

         United States District Judge Joan A. Lenard referred the sanctions motion to the Undersigned. [ECF No. 256');">6');">6');">6]. The Undersigned directed the parties to submit additional memoranda [ECF No. 26');">6');">6');">61], and they did so [ECF Nos. 274');">4; 275]. In addition, the Undersigned held an evidentiary hearing on October 11, 2017');">17 [ECF No. 297] and entertained oral argument. Six witnesses testified at the initial evidentiary hearing.

         The Undersigned later scheduled a supplemental evidentiary hearing [ECF No. 298], which took place on October 19, 2017');">17. [ECF No. 312');">12');">12');">12]. Two witnesses testified at the follow-up hearing. The sanctions motion is a well-briefed one and is ripe.

         In its opposition, Seasons 52 implies that the sanctions motion is a direct response to its defense summary judgment motion. It implicitly suggests that the EEOC was alarmed about the defense summary judgment motion and is using the sanctions motion as a frantic, last-minute legal life-preserver to rescue it from a scenario where it has “changed the theory of its case several times” and yet ended “empty handed.” The Undersigned rejects the unstated but not-too-subtle argument that the sanctions motion is a direct response to the summary judgment motion. Seasons 529;s summary judgment motion was filed on July 31st and the EEOC9;s sanctions motion was filed shortly thereafter, on August 2nd. The sanctions motion (and its incorporated legal memorandum) is 23-pages long and references 58 exhibits, all of which are attached to the motion. So it is highly likely that the EEOC began preparing the sanctions motion long before it received Seasons 529;s summary judgment motion. Thus, the Undersigned will assess the sanctions motion and the opposition without accepting the tacit argument that the sanctions request is an eleventh-hour smokescreen set up to deflect the Court9;s attention from a purportedly weak case (which, according to Seasons 52, was revealed in its summary judgment motion).

         In any event, for the reasons outlined below, but without accepting Seasons 529;s inferred theory that the timing of the sanctions motion is somehow evidence that the EEOC recognizes the purported weaknesses in its case, the Undersigned denies in part and grants in part the motion.

         This Order does not now provide the most-severe type of relief sought --permissible inferences at the summary judgment and trial stages. But it does provide some relief to the EEOC -- i.e., it may present evidence of the purportedly destroyed and/or missing paper applications, interview booklets and guides, and emails to the jury. Moreover, it provides other limited, potential relief: it permits the EEOC to rely on that evidence and argue to the jury that Seasons 52 acted in bad faith (as defined by Rule 37(e)(2)) and that, if the jury were to agree with that EEOC theory, then it may infer from the loss of electronically stored information (“ESI”) that it was unfavorable to Seasons 52.

         In addition, the Undersigned rejects Seasons 529;s position that it was not under a duty to preserve documents and ESI for any location other than one restaurant in Coral Gables, Florida. Nevertheless, the Undersigned will not now be authorizing the permissible inference type of sanction because the EEOC has not sufficiently established two of the required factors: (1) under applicable Eleventh Circuit law, that (for the paper applications and interview booklets) the supposedly missing evidence is crucial to the movant9;s case, and (2) that (for the email evidence, which is governed by Rule 37(e)(2)) Seasons 52 acted “to deprive [the EEOC] of the information9;s use in the litigation.” The Eleventh Circuit9;s common law of spoliation concerns the paper applications and interview booklets; Rule 37(e)(2) governs the email evidence (because it is electronically stored information).

         The parties will both be permitted to introduce to the jury at trial evidence of missing documents and ESI and the circumstances surrounding the destruction or absence of records. The parties may also make arguments about the destruction (or non-destruction) of paper applications and booklets and ESI, as well as the possible motives for their alleged destruction. And they will be able to present competing themes about the significance or insignificance of the missing and/or destroyed material (or if they are actually missing in the first place).

         In addition, the parties9; ability to present evidence and argument about the circumstances would permit the EEOC to present (through evidence and closing argument) its view that the investigation9;s scope was national and that Seasons 529;s interpretation (i.e., that the actual scope of the litigation remained only with the one Coral Gables restaurant) was incorrect and unreasonable. Likewise, this Order would permit Seasons 52 to present evidence and argument about its interpretation of the investigation9;s scope and why it deems its view and conduct to be reasonable.

         And, concerning the email evidence, the EEOC will be permitted (under Rule 37 (e)(2)) to seek a permissible inference (but it must persuade a jury that Seasons 52 acted in bad faith -- i.e., that it “acted with the intent to deprive” the EEOC of the email evidence9;s “use in the litigation.”

         I. Factual and Procedural Background

         Much of the factual background is undisputed, as it is reflected in letters and emails. But there is a significant factual dispute about whether, before the lawsuit was filed, Seasons 52 ever learned that the EEOC9;s investigation was national in scope and, if so, when and under what circumstances it gained that knowledge. This knowledge question is important because the EEOC must establish that Seasons 52 was under a duty to preserve documents and ESI when the material was lost or destroyed in order to obtain the harsher sanctions it seeks.

         Seasons 52 contends that it was under a duty to preserve for only one restaurant in Coral Gables because the two complaints that triggered the EEOC investigation concerned that sole location. The EEOC, however, contends that Seasons 52 had a duty to preserve for all restaurants in the country because the scope of the investigation expanded into a national investigation encompassing all Seasons 52 restaurants. Central to that argument is an August 31, 2011 letter from the EEOC to Seasons 52 that purported to expand the investigation into a national one -- which the parties call the “expansion letter.” Seasons 52 did not initially argue that it never received the expansion letter. Instead, its August 16');">6');">6');">6, 2017');">17 response to the sanctions motion advanced other arguments. But at the October 11, 2017');">17 evidentiary hearing, Seasons 52 contended for the first time that it never received the expansion letter, and it uses this non-receipt as a major reason for its conclusion that it was not on notice of a national investigation (and therefore had no duty to preserve information other than for the Coral Gables restaurant). This Order will discuss that letter (and myriad other exhibits).

         The Undersigned9;s ultimate conclusion is that Seasons 52 was under a duty to preserve documents and ESI for 11 restaurants. This conclusion does not adopt the theory advanced by either party. Instead, it is based on my assessment that although the EEOC has not established that Seasons 52 ever received the August 31, 2011 expansion letter (which mentions an investigation “throughout the nation”), Seasons 52 knew or should have known of its obligation to implement a litigation hold for documents concerning 11 restaurants. That is because Seasons 52 does not dispute receiving a letter from the EEOC dated September 1, 2011 -- just one day after the expansion letter -- which expressly requested a large amount of information and documents from many restaurants “due to an expansion of the case.”

         A. The EEOC9;s Pre-Hearing Version of the Facts

         The EEOC9;s version of the relevant factual background is outlined in its motion, which the Court excerpts here (minus many of the footnotes and minus some of the argument and rhetoric and with some modest clarifications, as needed).

         i. Seasons 52 Wa s (Purportedly) on Notice of the EEOC9;s Nationwide Investigation.

         Anthony Scornavacca and Hugo Alfaro filed charges of discrimination against Seasons 52 (Coral Gables) under the Age Discrimination in Employment Act in October and December 2010, respectively. [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-1; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-2]. The EEOC notified Seasons 52 of the charges and explained the EEOC9;s recordkeeping regulations. [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-3; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-4');">4].

         On August 31, 2011, the EEOC issued the expansion letter[2] and notified Seasons 52 that it was expanding the investigation to include Seasons 529;s hiring practices throughout the nation as they affect a class of individuals, applicants for employment, because of their ages. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-5]. The following two days, in a separate letter and email, the EEOC requested nationwide information that included, among other things, an employment roster for all Seasons 52 locations [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-6');">6');">6');">6], as well as applications and interview booklets for 10 locations. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-7].

         On January 10, 2012');">12');">12');">12, Seasons 52 apparently acknowledged in a letter that the EEOC9;s investigation was nationwide. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-8]. This letter is to the lead EEOC Investigator, Katherine Gonzalez, and was written by a Seasons 52 in-house paralegal named Deborah Dubinsky, who described herself as a “senior paralegal - Employment Law.” [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-8]. In this letter, Dubinsky noted that she was attaching a roster of employees from the Seasons 52 Naples, Florida restaurant. She then pointed out that the records demonstrate that “16');">6');">6');">6.4');">4% of employees at this restaurant are over the age of 4');">40.” [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-8]. According to Dubinsky9;s letter, this, along with other rosters previously provided, “refutes the allegation that Seasons 52 maintains a nationwide hiring policy that discriminates against individuals over the age of 4');">40.” [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-8]. Thus, it is this paralegal letter which the EEOC contends supports its position that “Seasons 52 acknowledged that [the] EEOC9;s investigation was nationwide.” [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6, 5');">p. 5');">5');">p. 5].

         On July 16');">6');">6');">6, 2013');">13, the EEOC issued Letters of Determination finding that Seasons 52 “engaged in a pattern or practice of not hiring individuals who are over the age of forty at its Seasons 52 restaurants throughout the United States.” [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-9, p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2]. During conciliation, [3] the EEOC advised Seasons 52 that it was conciliating on behalf of a nationwide class of applicants. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-10, p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2].[4');">4" name="FN4');">4" id="FN4');">4">4');">4]

         The EEOC filed its Complaint on February 12');">12');">12');">12, 2015. [ECF No. 1].

         ii. Seasons 529;s Document-Retention Policies Require Preservation.

         Seasons 529;s document-retention policies in effect since 2010 require the preservation of all applications and interview booklets for non-hired applicants for at least three years and, for hired applicants, for a minimum of six years. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-11, ¶¶ 8-9]. Business related email is also subject to retention. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-11, ¶ 11].

         Further, according to the policy, if there is an investigation, then “an in-house [Seasons 52] attorney will issue a notice of Record Hold to inform Employees of the Records that must be retained until the issue is resolved.” [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-12');">12');">12');">12, 5');">p. 5');">5');">p. 5; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-13');">13, p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2]. Information technology (“IT”) professionals are then tasked to “collect[] all emails available in the custodian9;s email box on the day the hold is sent out and continue[] to save all emails (sent and received) until the hold is released.” [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-12');">12');">12');">12, 5');">p. 5');">5');">p. 5].

         iii. Seasons 52 (Supposedly) Failed to Issue an Appropriate Litigation Hold.

         When Seasons 52 initially received the charges of discrimination, it issued litigation holds dated December 16');">6');">6');">6, 2010, to Gary Marcoe, Managing Partner in Coral Gables, and Christine Wilson, the Director of Employee Relations. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-11, ¶ 21');">21');">21');">21]. Thereafter, Seasons did not issue litigation holds for other locations until at least May 27, 2015 [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-11, ¶ 20; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-14');">4, pp. 4');">48:18-4');">49:2, 6');">6');">6');">60:5-6');">6');">6');">61:3, 76');">6');">6');">6:15-25], which was three years and eight months after the expansion letter [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-5] and three months after the EEOC9;s lawsuit was filed. [ECF No. 1].

         iv. Paper Applications: Tampa, King of Prussia (“KOP”), and Costa Mesa.

         Seasons 52 received paper applications at the Tampa, KOP, and Costa Mesa restaurants. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-17');">17, p. 70]. In 2011, Seasons 529;s “litigation team” collected materials from these locations by asking managers to send them to a central office to be scanned. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-14');">4, pp. 3');">p. 3');">p. 3');">p. 30:14');">4-21');">21');">21');">21, 52:5-11, 57:25-58:20]. No one issued a litigation hold or went to the restaurants to oversee the collection (except perhaps at Coral Gables). [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-14');">4, 5');">p. 5');">5');">p. 58:7-20]. Seasons 52 failed to produce a large number of applications to the EEOC for those three locations:

         Ta m p a 1800 applications received per Manager testimony 205 produced KOP 1000 applications received per Manager testimony 325 produced Costa Mesa 1000 applications received per Manager testimony 322 produced Because these stores9; limited application data production is not representative, the EEOC9;s statistical analysis for Tampa, KOP, and Costa Mesa is by necessity based on proxy Census data. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-17');">17, p. 3');">p. 3');">p. 3');">p. 38');">p. 3');">p. 3');">p. 3');">p. 38]. As Dr. Ali Saad9;s (Seasons 529;s expert) analysis demonstrates, the EEOC contends that this prejudices its position because Census data reflects less under-hiring of older applicants than actual applicant data at each of the remaining eight locations that accepted paper applications. [See generally ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-21');">21');">21');">21]. Specifically, using application data, Dr. Saad found a statistically significant failure to hire older workers for seven of eight locations and under-hiring of older workers at the eighth location. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-21');">21');">21');">21, p. 81]. But using Census data, Saad reported statistical significance at only two of the same eight locations, with two restaurants slightly over-hiring older applicants. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-21');">21');">21');">21, p. 1');">p. 14');">42');">p. 1');">p. 14');">42]. Thus, the EEOC contends that the forced use of Census data understates Seasons 529;s discriminatory hiring at these three locations and thus negatively impacts the relief it can recover for victims of discrimination.

         v. Seasons 52 Says that it Has No Knowledge.

         Accordingly to the EEOC, Seasons 52 claims that it has no “knowledge of the destruction of applications, interview booklets or other related documents from . . . Tampa, King of Prussia, [and] Costa Mesa.” [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-11, ¶ 15]. Seasons 52 also represents that it is “unaware” of the number of applications the restaurants received, notwithstanding the testimony of its managers. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-14');">4, p4');">47');">p. 4');">47:14');">4-18, 56');">6');">6');">6:21');">21');">21');">21- 57:5, 58:21');">21');">21');">21-24');">4, 59:13');">13-6');">6');">6');">60:3].[5" name="FN5" id= "FN5">5] Seasons 52 further claims to be unaware of data being lost at any time. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-14');">4, pp. 4');">41:14');">4-24');">4, 4');">46');">6');">6');">6:7-15, 52:12');">12');">12');">12-14');">4, 59:9-12');">12');">12');">12].

         vi. Paper Applications: Jacksonville and Kansas City.

         The EEOC also maintains that Seasons 52 destroyed a significant number of paper applications from Jacksonville and Kansas City:

         Location Min. # Paper Apps ReceivedPaper Apps Produced by Seasons 52

         Jacksonville 1, 000 [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-4');">45, 5');">p. 5');">5');">p. 56');">6');">6');">6:20-24');">4] 12');">12');">12');">126');">6');">6');">6 Kansas City unknown 8 Moreover, it argues that Seasons 529;s preservation efforts were particularly tardy and lackadaisical. Although the EEOC set discovery hearings [ECF Nos. 4');">49; 80] and repeatedly requested a timeline for the production of paper applications [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-29, pp. 1');">p. 1, 3], Seasons 52 made no effort to collect paper documents for these 2 locations (Jacksonville and Kansas City), or other locations, until January 2016');">6');">6');">6, 11 months after the EEOC filed this lawsuit. [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-11, ¶ 17');">17; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-14');">4, pp. 6');">6');">6');">67:16');">6');">6');">6-6');">6');">6');">68:16');">6');">6');">6, 76');">6');">6');">6:24');">4-25].

         All the while, Seasons 52 represented to the EEOC that efforts to collect paper data were underway. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-29, p. 6');">6');">6');">6 (“Our [Seasons 529;s] first priority has been the collection and review of applications and related documents.”)]. According to the EEOC, this delay indicates that Seasons 52 waited too long.

         In Jacksonville, managers testified that paper applications and booklets were shredded. [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-4');">45, p5');">p. 5');">5');">p. 56');">6');">6');">6:20-6');">6');">6');">60:13');">13, 79:1-6');">6');">6');">6; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-4');">49, pp. 1');">p. 113');">13:24');">4-117');">17:16');">6');">6');">6]. Ye t Seasons 52 asserts that it has “no knowledge” of any destruction of documents from Jacksonville. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-14');">4, pp. 72:25-73:16');">6');">6');">6]. As to Kansas City, a December 31, 2015 fire -- 10 months after the EEOC9;s Complaint was filed -- destroyed the application materials. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-14');">4, pp. 6');">6');">6');">64');">4:22-6');">6');">6');">65:16');">6');">6');">6, 6');">6');">6');">67:3-20].

         Thus, because Seasons 52 failed to produce virtually all of the paper applications, the EEOC analyzed only electronic data at these two restaurants. To illustrate the significance of this, the EEOC points to the scenario at the Coral Gables restaurant.

         In Coral Gables, while the electronic data (392 electronic applicants) suggests that older workers were favored [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-21');">21');">21');">21, p. 72], the paper data tells a different story. During litigation, Seasons 52 produced 256');">6');">6');">6 paper applications from Coral Gables. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-26');">6');">6');">6, ¶ 14');">4]. Seasons 52, however, had produced approximately 900 more Coral Gables applications during the EEOC9;s investigation -- applications that it failed to produce in litigation. With the complete paper data (117');">179 applications), Dr. Saad acknowledges that Coral Gables shows a statistically significant failure to hire older applicants. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-21');">21');">21');">21, p. 81].

         vii. Seasons 52 Failed to Produce Interview Booklets.

         During 2010 and 2011, Seasons 52 gave restaurants a standard interview booklet in order to, among other things, provide an interview scoring system for evaluating applicants. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-27]. When stores switched to electronic applications, Seasons 52 switched to using an interview guide, which closely resembled the booklet and served the same general purposes. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-28]. In total, Seasons 52 produced approximately 2, 202 booklets and 786');">6');">6');">6 guides from 32 of 5');">35 restaurants. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-26');">6');">6');">6, ¶ 16');">6');">6');">6]. Of the booklets produced, Dr. Saad confirmed that they were heavily skewed towards hires. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-36');">6');">6');">6, 5');">p. 5');">5');">p. 58:18-23]. The EEOC argues that this indicates that Seasons 52 destroyed thousands of booklets for unsuccessful applicants.

         Hiring managers testified that booklets and guides were required, or generally used, in Tampa, KOP, Plano, Phoenix, Indianapolis, North Bethesda, McLean, Naples, Jacksonville, Memphis, and Columbia, but even from these locations, the EEOC received significantly less booklets and guides than the number of applications. In fact, there is evidence that, after the EEOC9;s expansion letter, [6');">6');">6');">6" name="FN6');">6');">6');">6" id="FN6');">6');">6');">6">6');">6');">6');">6]some of these booklets and guides were intentionally destroyed. [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-4');">46');">6');">6');">6, p. 76');">6');">6');">6:2-5 (after interview, guides thrown away at Memphis); 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-4');">49, pp. 1');">p. 113');">13:24');">4-117');">17:17');">17 (policy to shred at each location where Carmen Net is Director of Operations and applications/booklets kept together); 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-31, p. 8 (Net is DO over Jacksonville, Memphis, Birmingham, Sarasota, Tampa); 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-50, p. 6');">6');">6');">64');">4:4');">4-22 (immediate shredding of booklets at Cherry Hill); 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-32, pp. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 24');">45:6');">6');">6');">6-24');">47:12');">12');">12');">12 (TAS paperwork and prescreen notes destroyed in Chicago).

         The EEOC argues that the absence of Seasons 529;s booklets and guides is highly prejudicial to the EEOC because it adversely affects the analysis Dr. Saad performed. Dr. Saad9;s expert report repeatedly states that there is no information regarding what transpired during the interview. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-21');">21');">21');">21, ¶¶ 10, 11, 26');">6');">6');">6, 93]. Seizing upon this void in the data, Dr. Saad argues that older workers seeking entry-level and mid-level restaurant service jobs possess, on average, less ability than younger workers seeking the same jobs, and that this was evident in the interview performance of older workers. [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-21');">21');">21');">21, ¶ 11, 79; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-36');">6');">6');">6, pp. 13');">137:8-13');">139:7, 14');">44');">4:12');">12');">12');">12-17');">17]. He then turns to the National Longitudinal Study of Youth, an external data source, to discount the value of applications from older applicants by an amount up to 0.36');">6');">6');">6, which Dr. Saad says is the measure of older applicants9; lesser ability that would have been evident at interviews. [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-21');">21');">21');">21, App. A, ¶¶ 96');">6');">6');">6-101; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-36');">6');">6');">6, pp. 17');">177:24');">4-181:4');">4]. Dr. Saad supposes that the longer unemployment duration of older workers is proxy for the abilities possessed by applicants to Seasons 52. [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-21');">21');">21');">21, ¶¶ 20-21');">21');">21');">21, 97; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-36');">6');">6');">6, pp. 1');">p. 14');">48:15-22, 17');">173:6');">6');">6');">6-15, 17');">174');">4:17');">17-17');">175:2]. Dr. Saad acknowledges that if scores from booklets and guides were available, then he would have had to consider them. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-36');">6');">6');">6, pp. 6');">6');">6');">61:11-6');">6');">6');">65:7].

         viii. Seasons 52 Failed to Preserve and Produce Relevant Emails.

         For each of the 5');">35 restaurants at issue in this lawsuit, Seasons 52 issued two email accounts: one for the restaurant itself (“Restaurant Email”) and one for the Managing Partner (“MP Email”). [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-5');">35, p. 19:14');">4-16');">6');">6');">6, 19:20-24');">4]. These email accounts were used for internal and external communications about, among other things, hiring, recruiting, and specific applicants.

         From February 2010 until February 2014');">4, emails were preserved for 90 days on Seasons 529;s NearPoint Mimosa archiving system and then automatically deleted. [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-14');">4, p. 22:19-21');">21');">21');">21; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-5');">35, pp. 10-11]. Emails were preserved beyond that 90-day period only if a litigation hold was issued. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-5');">35, pp. at 10-11]. In February 2014');">4, Seasons 52 switched to a Proof Point archiving system that featured an automatic three-year preservation for all emails. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-5');">35, pp. 1');">p. 14');">4-18].

         Seasons 52 issued two relevant litigation holds: one for Coral Gables in 2010 and a second in May 2015 for all 5');">35 restaurants. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-5');">35, pp. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 2');">p. 21-27]. The EEOC contends that Seasons 52 made no other efforts to preserve emails.[7] The EEOC also notes that it appears as though Seasons 52 did not even take the basic step of preserving any hard drives. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-5');">35, 4');">47');">p. 4');">47].

         In discovery, the EEOC requested emails for all 5');">35 restaurants from when the restaurant began hiring through one year of the new restaurant openings (“NRO”). The degree of alleged spoliated email varies depending upon the location9;s opening date in relationship to the date of the expansion letter (which -- if received -- would begin Seasons 529;s duty to preserve) and when Seasons 52 began archiving email in Proof Point (February 2014');">4):

• Plano, Phoenix, Indianapolis, North Bethesda, and McClean opened before the expansion letter. According to the EEOC, had Seasons 52 issued a litigation hold upon receipt of the expansion letter, it would have preserved at least some emails exchanged during the first year of the NRO. (Of course, this position assumes that Seasons 52 received the so-called expansion letter, which it says it did not.)
• Jacksonville, Kansas City, Garden City, Oak Brook, Dallas, and Los Angeles lost all email from pre-NRO through one year after restaurant opening.
• Naples lost all Restaurant Email; Managing Partner Dunavan9;s email goes back to 2012');">12');">12');">12.
• Norwood, Santa Monica, Birmingham, Burlington, Houston, Chicago, Chestnut Hill, San Diego, and Houston opened in 2013');">13, after the expansion letter.[8] The EEOC has some emails during the one year period, but no emails from the NRO hiring time frame.
• Edison and Memphis opened in January 2014');">4, after the expansion letter and immediately before Seasons 52 switched email systems. At these locations, the EEOC has some emails from the Managing Partner/Restaurant, but not from the pre-opening, NRO hiring time frame.

         B. Season 529;s Pre-Hearing Version of the Facts

         Seasons 529;s factual position is outlined in its response in opposition to the sanctions motion. The Undersigned excerpts the summary with the same modifications and caveats I used for the EEOC9;s factual summary. Many of the Seasons 52-asserted facts are similar to those listed in the EEOC version, but they are worded slightly differently. For some facts, Seasons 52 portrays them in a significantly different light. That is understandable. The EEOC9;s version highlights certain facts and describes them in a plaintiff-friendly way, and Seasons 52 emphasizes other facts and cases them in a defendant-oriented way.

         In addition, the Undersigned notes that Seasons 529;s factual summary discusses Investigator Gonzalez9;s August 31, 2011 letter (the so-called “expansion letter”) as though it had been timely received. Its pre-hearing memoranda never asserted the argument that it never received the letter. Seasons 52 later (at the evidentiary hearing) took the position that it never received this letter (and it points to several unusual factors surrounding the document to bolster its new we-never-received-the-letter position).

         i. The EEOC9;s Investigation Began with Two Individual Charges of Discrimination Filed by Unsuccessful Server Applicants at Seasons 52 in Coral Gables.

         In November 2010, Seasons 52 opened a new restaurant in Coral Gables, Florida. [ECF No. 191-1, ¶ 1]. After failing to secure Server positions at the restaurant, Scornavacca and Alfaro filed individual charges of age discrimination. [ECF Nos. 77, ¶¶ 29, 32, 5');">35, 4');">40; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-1; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-2]. Neither asserted class-wide allegations or theories that extended beyond their own individual circumstances. The EEOC issued notice of the charges on December 8, 2010 and December 10, 2010, respectively. [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-3; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-4');">4]. In turn, Seasons 52 issued a litigation hold to the Coral Gables Managing Partner and the employee relations manager who investigated the charge allegations. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-11].

         In response to the Scornavacca charge and related requests by investigator Gonzalez, Seasons 52 submitted a position statement, produced copies of the applications submitted by those hired for hourly positions, and supplied a roster of all employees (hourly and salaried) hired by the Coral Gables restaurant. [ECF No. 24');">42, ¶ 70]. Later, Seasons 52 submitted a separate position statement in response to the Alfaro charge and made four managers responsible for interviewing applicants at the Coral Gables restaurant available for interview. [ECF No. 24');">42, ¶¶ 71-72].

         ii. Investigator Gonzalez Searched For Other Charges Against Seasons 52

         Sometime in August 2011, Investigator Gonzalez searched an EEOC internal system that permits users to look up cases filed against given respondents and cross reference statutes. [ECF No. 24');">42, ¶ 73]. Her search turned up a charge filed by Jerry Taylor with the EEOC in Indianapolis. [ECF No. 24');">42, ¶ 74');">4].

         iii.Investigator Gonzalez Revealed Her “Expanded” Investigation

         On August 31, 2011, Investigator Gonzalez sent the following short letter:

This is notice that the EEOC is expanding the scope of the investigation of the above referenced charge of discrimination to include the hiring practices of the [sic] Seasons 52 throughout the nation as they affect a class of individuals, applicants for employment, because of their ages, under the Age Discrimination of [sic] Employment Act of 196');">6');">6');">67.

[ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-5 (emphasis added)]. The letter did not list any particular charge, specify any particular position or class of positions (e.g., hourly vs. salaried), describe any specific hiring practice, suggest any categories of information that the EEOC might seek, or raise the prospect of future litigation. Id.[9" name="FN9" id="FN9">9]

         On September 1, 2011, Investigator Gonzalez sent the EEOC9;s first request for information about Seasons 52 locations other than Coral Gables. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-6');">6');">6');">6]. The EEOC sought employment applications, interview booklets, and other documents from the locations opened during the “relevant time period” of February 1, 2010 to September 1, 2011. Id.

         Concerning the restaurants at issue in the EEOC9;s motion, Seasons 52 produced applications submitted by hourly candidates at Tampa and KOP on November 17');">17, 2011. [ECF No. 259-1]. Seasons 52 produced applications submitted at the Costa Mesa location on December 5, 2011. [ECF No. 259-2]. The EEOC never explicitly requested applications submitted at the Jacksonville or Kansas City locations or objected to their non-production.

         iv. The EEOC Issued Letters of Determination

         On July 16');">6');">6');">6, 2013');">13, the EEOC issued Letters of Determination. [ECF Nos. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-9; 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-10]. The Determinations did not identify any particular hiring practice as discriminatory. Id. Investigator Gonzalez could not recall if she recommended to Seasons 52 that it change any hiring practice or if she told Seasons 52 who was in the “class” that the EEOC vaguely referenced, whether the class included front and back-of-the-house employees, or hourly or salaried employees, or how many people the EEOC estimated to be in the class. [ECF No. 24');">42, ¶ 82].

         In December 2013');">13, after the EEOC had closed its investigation, an EEOC Investigator requested information for restaurants outside the 11 (Coral Gables and ten others) that the EEOC had potentially included in its investigation. On December 2, 2013');">13, Seasons 529;s counsel wrote to Investigator Gonzalez and stated that it was “puzzling” that the EEOC would ask for information pertaining to “all” restaurants after the EEOC had declared that it had concluded its investigation. [ECF No. 259-7]. Seasons 52 did not provide additional information. Id. On May 23, 2014');">4, the EEOC issued letters declaring an end to conciliation. [ECF No. 4');">46');">6');">6');">6');">24');">46');">6');">6');">6-10, ¶ 29].

         v. Seasons 52 Produced Voluminous ESI During Discovery

         After negotiating with the EEOC for months regarding an ESI stipulation, Seasons 52 collected all available email and workstation documents from over 100 custodians. [ECF No. 259-3, ¶¶ 2-3]. Over the subsequent months, Seasons 52 continued to investigate and collect ESI for an ever-growing list of additional custodians demanded by the EEOC. [ECF No. 259-3, ¶ 4');">4]. In total, Seasons 52 collected over 2, 300 gigabytes of data, totaling more than 5, 500, 000 unique documents. Id. Seasons 52 then applied more than 1, 500 negotiated, broad search terms to the collected data. [ECF No. 259-3, ¶ 5]. The searches returned approximately 6');">6');">6');">620, 000 documents for review and cost hundreds of thousands of dollars to complete. Id. About 31, 000 ESI records, totaling in excess of 110, 000 pages, were produced. [ECF No. 259-3, ¶ 6');">6');">6');">6].[10" name="FN10" id= "FN10">10]

         Seasons 52 contends that the emails9; value was marginal at best, and only a small number were deemed worthy of submission to the Court in its summary judgment filings.

         C. The ...


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