612 F.3d 34 (1st Cir. 2010), 09-1082, Booker v. Massachusetts Dept. of Public Health

Docket Nº:09-1082.
Citation:612 F.3d 34
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:Althea BOOKER, Plaintiff, Appellant, v. MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH (The Lemuel Shattuck Hospital); The Executive Office of Health and Human Services; Edward Nicosia, Defendants, Appellees.
Attorney:Mark Booker, with whom Law Offices of Mark Booker was on brief, for appellant. Daniel G. Cromack, Assistant Attorney General, with whom Martha Coakley, Attorney General, and Bryan R. Killian, Assistant Attorney General, were on brief, for appellee.
Judge Panel:Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.
Case Date:July 15, 2010
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 34

612 F.3d 34 (1st Cir. 2010)

Althea BOOKER, Plaintiff, Appellant,


MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH (The Lemuel Shattuck Hospital); The Executive Office of Health and Human Services; Edward Nicosia, Defendants, Appellees.

No. 09-1082.

United States Court of Appeals, First Circuit.

July 15, 2010

Heard Dec. 9, 2009.

Page 35

[Copyrighted Material Omitted]

Page 36

[Copyrighted Material Omitted]

Page 37

Mark Booker, with whom Law Offices of Mark Booker was on brief, for appellant.

Daniel G. Cromack, Assistant Attorney General, with whom Martha Coakley, Attorney General, and Bryan R. Killian, Assistant Attorney General, were on brief, for appellee.

Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

Plaintiff Althea Booker filed suit against her employer, the Massachusetts Department of Public Health (the Lemuel Shattuck Hospital), the Executive Office of Health and Human Services, and certain individual defendants. A jury returned a verdict in favor of defendants on Booker's claims of retaliation under federal and state law, see 42 U.S.C. § 2000e-3(a); Mass. Gen. Laws ch. 151B, § 4(4), and tortious interference with contractual employment relations. The court then denied Booker's post-trial motions.

On appeal, Booker first contends that the court's jury instruction on the meaning of a " materially adverse action" misstated the legal standard governing her retaliation claim. Although we conclude that the adverse action instruction was problematic, we reject that claim of error.

Booker also argues that the court erroneously refused to instruct the jury on the doctrine of spoliation. Booker requested an instruction that the jury could draw an adverse inference based on the deletion of emails concerning Booker by certain hospital employees. We conclude that Booker failed to lay a proper evidentiary foundation for a spoliation instruction and therefore the court did not abuse its discretion in refusing to give it. Accordingly, we affirm the judgment.


Booker, an African-American woman, began working at the Lemuel Shattuck Hospital (the hospital) as a telephone operator in the late 1980s. In 2001, she was promoted to " Communications Dispatcher II." Booker's responsibilities in her new position included dispatching the hospital's campus police officers and supervising the telephone operators, or " Communication Dispatcher I's," who staffed the communications department. The communications department performed functions such as screening and receiving incoming calls, transferring calls to other departments, receiving emergency calls from within the hospital, assisting with dispatching, and greeting visitors.

On September 9, 2003, Booker met with Shawn McMullen, then her immediate supervisor, and Edward Nicosia, then the hospital's Deputy Director of Facilities Management,1 to express concern that she was receiving telephone calls from her staff while she was off duty. Nicosia explained that under her collective bargaining agreement she was entitled to " call-back pay" for work-related calls received at home. Later that day, Nicosia and McMullen circulated a memorandum to Booker's staff discouraging them from calling

Page 38

their supervisor at home except in emergency situations, and copied Booker.

Several months later, on December 15, 2003, Booker hand-delivered a letter to Nicosia complaining that the hospital had discriminated against her based on race by failing to compensate her for off-duty calls. In the letter, Booker asserted that she was owed call-back pay for seventy-five calls she had received at home over the past two years, and that McMullen, who is white, was receiving off-duty calls from Booker's staff that should have gone to her. She stated that the sole reason for this unequal treatment was race and that her letter represented " a relatively whispering salvo in what could become a vigorous public challenge of rampant institutional racism at the Hospital."

Later that same day, Booker confronted McMullen in the campus police department, located in the hospital's main lobby. In a raised voice, Booker asked McMullen why members of her staff were calling him after hours instead of her and whether the hospital had a policy of only paying white supervisors for off-duty calls. She asserted that this was racism and she would speak with a lawyer. In early January 2004, Nicosia and McMullen had a meeting with Booker to discuss the December 15 incident. Booker apologized for confronting McMullen in such a public setting, but did not retract her complaints. Ultimately, in late January, she was issued a written warning for her behavior. On February 6, 2004, Booker filed the first of several administrative complaints with the Massachusetts Commission Against Discrimination (MCAD) and the Equal Employment Opportunity Commission (EEOC), alleging race discrimination and retaliation.2

In the months that followed Booker's December 15 letter of complaint, Nicosia took several actions related to payroll and timekeeping procedures that displeased Booker. In January 2004, Nicosia removed the communications logbook from Booker's desk and replaced it with a new logbook. Members of the communications department used the log to record information such as shift assignments, staff absences, and phone calls to staff at home, and the logbook removed by Nicosia contained entries related to Booker's claim for call-back pay. The following month, Booker and Nicosia had a disagreement about allocation of personal time. Noticing that Booker had missed twelve hours of work but had not reported the absences on her timesheet, Nicosia deducted twelve hours of her personal time. When Booker discovered this deduction, she informed Nicosia that she preferred to use a combination of sick time, vacation time, and leave without pay to cover the time off. Although Nicosia asked Booker to make this correction by submitting a payroll adjustment form, she instead called the payroll department and had them make the change. After discovering that Booker made the payroll change without the appropriate paperwork, Nicosia submitted a payroll adjustment form again designating Booker's absences as personal time. Booker complained, but Nicosia refused to have her personal time returned.

Finally, in February 2005, Nicosia learned that Booker was logging her time in the communications log and reviewing her own timesheets as well as those of her staff. Nicosia directed Human Resources to make changes so that Booker was required to enter her time in the so-called steward's log and submit her weekly timesheets

Page 39

to her immediate supervisor for review.

Changes were also made to Booker's job responsibilities over the 2004-2005 period. In the fall of 2004, Richard Wong joined the hospital as the director of safety and security and replaced McMullen as Booker's immediate supervisor. Sometime thereafter, Wong hired additional police officers and informed Booker that whenever at least five officers were on duty, an officer would perform dispatching duties. Booker continued to fill in as a dispatcher on an as-needed basis, around four or five times per month, but it was no longer a regular part of her job duties. Wong also requested that Booker get trained to perform mailroom duties, which consisted of sorting incoming mail in the morning and metering outgoing mail in the afternoon, so that she could cover the mailroom on occasion. Other employees, including Wong, covered the mailroom when the regular mailroom clerk was out, and the job description for Booker's position, Communications Dispatcher II, listed sorting and delivering mail as one of her job responsibilities. However, Booker refused the mailroom training and resisted performing mailroom duties, viewing them as less prestigious than her other duties. As a result, she rarely covered the mailroom, filling in there for the first time on December 30, 2005.

Finally, in June 2005, Booker was suspended for one day without pay following a confrontation with a campus police officer. The officer, hurrying to get to an assigned location at the hospital on time, exchanged his radio for the radio on Booker's desk, which had a belt clip. Raising her voice, she chastised him for taking her radio and called him derogatory names. People passing through the busy hospital lobby observed the incident.

In October 2005, Booker filed this action in federal district court against the Massachusetts Department of Public Health (DPH), the Executive Office of Health and Human Services (EOHHS), and four individual defendants, including Nicosia.3 Booker alleged, inter alia, that defendants retaliated against her for complaining about discriminatory withholding of callback pay and for filing complaints with the MCAD,4 and that the individual defendants intentionally interfered with her contractual employment relationships. Following pretrial dispositions not at issue in this appeal, 5 Booker proceeded to trial on her retaliation claims against DPH, EOHHS and Nicosia (hereafter, defendants), and her tortious interference claim against Nicosia.

At trial, the court instructed the jury as to the actions that Booker maintained were retaliatory:

Page 40

[T]he written warning issued in January of 2004; the removal of the communications logbook from the desk where she worked; the February 2004 incident involving Mr. Nicosia's reduction of her personal time for an unreported absence; the requirement that she sign for her time on the stewards' log rather than the communication dispatchers' log; the reduction in her police dispatching duties; her assignment to mailroom duties and training, and her one-day suspension in June of 2005.

After a...

To continue reading