146 F.3d 964 (D.C. Cir. 1998), 97-7239, Webb v. District of Columbia

Docket Nº:97-7239.
Citation:146 F.3d 964
Party Name:41 Fed.R.Serv.3d 120 Isaiah WEBB, Appellee, v. THE DISTRICT OF COLUMBIA, Appellant. No. 97-7165. Consolidated with
Case Date:July 07, 1998
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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146 F.3d 964 (D.C. Cir. 1998)

41 Fed.R.Serv.3d 120

Isaiah WEBB, Appellee,



No. 97-7165.

Consolidated with

No. 97-7239.

United States Court of Appeals, District of Columbia Circuit

July 7, 1998

Argued May 14, 1998.

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Appeals from the United States District Court for the District of Columbia (No. 90cv02787).

Donna M. Murasky, Assistant Corporation Counsel, argued the cause for appellant, with whom John M. Ferren, Corporation Counsel, Charles L. Reischel, Deputy Corporation 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.

WALD, Circuit Judge:

In 1990, Isaiah Webb ("Webb"), an African-American male correctional officer, sued the District of Columbia Department of Corrections ("the District"), alleging 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 proceeded, it became clear that the District, in accordance with general internal policies and in contravention of federal regulations, 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 District's harassment evidence, we vacate the default judgment against the District and remand for further proceedings.


    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 Supervisory 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

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    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. § 2000e et seq., and 42 U.S.C. § 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 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 termination. Id. at 187. On November 1, 1996, Webb (for whom counsel had been appointed) filed his fourth amended complaint. The complaint limited Webb's claims of discrimination to three positions--Special Assistant, Correctional Program Officer, and Supervisor Correctional Officer/Major 4--and included a claim of retaliatory discharge pursuant to 42 U.S.C. § 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 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 numerous requests and interrogatories asking for information and 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 Management 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

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    District regulations. In the second declaration, Karen Adams ("Adams"), also a Supervisory Personnel Management Specialist with the District of Columbia, 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 documents, 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).

    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 vacancy 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 conference, 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 reconsideration. 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 represented," 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. § 1602.31, 9

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    which requires government entities to maintain all personnel files for two years from the making of the record or the date of the action involved and to preserve those records relevant to a filed charge of discrimination 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 summaries 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...

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