Hogan v. Bellsouth Corp.

• Decision Date: 29 July 2004
• Docket Number: No. 1:01-CV-1322-RWS.,1:01-CV-1322-RWS.
• Citation: 396 F.Supp.2d 1333
• Parties: Lisa B. HOGAN, Plaintiff, v. BELLSOUTH CORPORATION, and BellSouth Telecommunications, Inc., Defendants.
• Court: U.S. District Court — Northern District of Georgia

396 F.Supp.2d 1333

Lisa B. HOGAN, Plaintiff, v. BELLSOUTH CORPORATION, and BellSouth Telecommunications, Inc., Defendants.

No. 1:01-CV-1322-RWS.

United States District Court, N.D. Georgia, Atlanta Division.

July 29, 2004.

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Charles Ronald Bridgers, Delong Caldwell Novotny & Bridgers, Edmund J. Novotny, Baker, Donelson, Bearman, Caldwell & Berkowitz, Lisa Y. Smith, Office of Lisa Young Smith, Suzanne K. Lehman, Elarbee Thompson Sapp & Wilson, Atlanta, GA, for Plaintiff.

James H. Coil, III, Robert Kendall Haderlein, Kilpatrick Stockton, Atlanta, GA, for Defendants.

ORDER

STORY, District Judge.

Plaintiff Lisa B. Hogan filed this employment discrimination suit against Defendants BellSouth Corporation and BellSouth Telecommunications, Inc. Now before the Court for consideration is the Report and Recommendation ("R & R") of Magistrate Judge Gerrilyn G. Brill [58-1], recommending that Defendants' Motion for Summary Judgment [31-1] be granted. Also pending are Plaintiff's Motions for Extensions of Time [59-1 & 64-1], Plaintiff's Motion to Apply Adverse Inference Doctrine [63-1], Motion to Compel [63-2], or Motion Pursuant to Rule 56(f) [63-3], and Defendants' Motion for Leave to File Surreply [69-1]. Having considered the entire record, the Court enters the following Order.

As initial matters, the following Motions are hereby GRANTED for good cause shown: Plaintiff's Motions for Extension of Time [59-1 & 64-1], and Defendant's Motion for Leave to File Surreply [69-1].

Discussion

I. Plaintiff's Motion to Apply Adverse Inference Doctrine

Plaintiff contends that Defendants did not produce certain discovery materials and she moves the Court to apply the adverse inference doctrine and construe Defendants' failure to produce against them. A review of the history of the party's discovery disputes reveals that Plaintiff's Motion is untimely and therefore due to be denied. Even if the Motion were not untimely, however, the Court concludes that the adverse inference doctrine is not warranted here.

Discovery in this case closed on September 16, 2002. On September 30, 2002, Plaintiff requested an extension of time within which to file an anticipated motion to compel. On October 10, 2002, Plaintiff again requested an extension of time, until ten days after the parties conducted mediation. In an Order entered May 23, 2003, Judge Brill explained that the parties had delayed too long in pursuing mediation. Judge Brill therefore set a summary judgment briefing schedule but allowed Plaintiff twenty days within which to file a motion to compel. Plaintiff filed her Motion to Compel [29-1] on June 11, 2003. Shortly thereafter, on June 24, 2003, BST filed its Motion for Summary Judgment [31-1]. Plaintiff requested an extension of time within which to file her response to the summary judgment motion until after the Court had ruled on her Motion to Compel.

Judge Brill held a hearing on October 2, 2003, at which she apparently gave the parties some indication of her opinions regarding the Motion to Compel but admonished the parties that they should attempt to resolve the discovery dispute themselves. The parties thereafter represented to the Court that they had resolved their dispute; Judge Brill entered an Order denying Plaintiff's Motion to Compel as moot on December 4, 2003. In the same Order, Judge Brill ordered Plaintiff to submit her Response to Defendants' Motion for Summary Judgment within twenty days.

Five days after Judge Brill's December 4, 2003 Order, Plaintiff received documents from Defendants pursuant to the agreement they had reached. Although she now contends that that production did not meet the terms of the parties' agreement, she made no attempt to notify the Court that the productions was unsatisfactory until after Judge Brill issued her R & R on January 28, 2004. Indeed, she did not raise the issue at all until February 23, 2004, when she filed her Corrected Objections to the R & R and mentioned that she would be filing her Motion to Apply Adverse Inference Doctrine.

Plaintiff's objections to the allegedly deficient production come too late. She had ten days within which to file an objection to Judge Brill's December 4, 2003 Order denying her Motion to Compel as moot, but she failed to file any objections. See Fed.R.Civ.P. 72(a) (setting forth time limits for serving objections to nondispositive magistrate orders). She might also have filed a motion for reconsideration within ten days of the December 4, 2003 Order, but she did not do so. Finally, she could have raised the issue along with her response to Defendants' Motion for Summary Judgment by filing an affidavit pursuant to Federal Rule of Civil Procedure 56(f), but she did not do so.¹ Plaintiff cannot attempt to obtain more evidence after learning of the Magistrate Judge's summary judgment recommendation; her current Motion simply comes too late and is therefore due to be denied.²

In the alternative, the Court finds no circumstances warranting application of the adverse inference doctrine. In the Eleventh Circuit, an adverse inference is drawn from a party's failure to preserve evidence only when there is a showing of bad faith. Penalty Kick Mgmt. Ltd. v. Coca Cola Co., 318 F.3d 1284, 1294 (11th Cir.2003); Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir.1997); Cooper v. Southern Co., 260 F.Supp.2d 1258, 1275 (N.D.Ga.2003). The loss or destruction of records through mere negligence is not enough to support an adverse inference because it does not sustain an inference of consciousness of a weak case. Bashir, 119 F.3d at 931. Instead, bad faith essentially requires that a party "tampered with the evidence." Id.

Here, Defendants have produced evidence showing that their production was responsive to the Plaintiff's request as modified by the parties' agreement following the October 2, 2003 hearing before Judge Brill. If Plaintiff believed the parties' agreement did not cover all of the production she sought, she should not have represented to the Court that the issues in her Motion to Compel were resolved. Moreover, Plaintiff has failed to show any evidence of Defendants' bad faith. Plaintiff contends that Defendants have failed to maintain certain records in violation of federal statutes, but there is no showing, consistent with Eleventh Circuit requirements, that that failure was premised on any desire to tamper with evidence. Accordingly, Plaintiff's Motion to Apply Adverse Inference Doctrine [63-1], Motion to Compel [63-2], and Motion Pursuant to Rule 56(f) [63-3] are hereby DENIED.

II. R & R

In the R & R, Judge Brill recommends granting Defendants' Motion for Summary Judgment. Having carefully considered all the documents and evidence related thereto, the Court accepts the R & R and hereby adopts it as the Order of the Court, with the following additions. First, the Court holds that even if Plaintiff had established a prima facie case of race or sex discrimination in her termination, the legitimate, non-discriminatory reasons proffered for Defendants' failure to promote her, coupled with her unwillingness to participate in the weekly feedback process Defendants developed for her, constitute legitimate, non-discriminatory reasons for her termination. Moreover, for the same reasons described in the R & R regarding Plaintiff's failure-to-promote claim, Plaintiff has failed to show evidence that the reasons supplied for her termination are pretextual. See Holifield v. Reno, 115 F.3d 1555, 1564-65 (11th Cir.1997) (discussing and applying standards; "[t]he inquiry into pretext centers upon the employer's beliefs, and not the employee's own perceptions of his performance").

Second, the Court is mindful of Plaintiff's argument that Defendants wished to impose the weekly feedback process on her in retaliation for the complaints she raised in a September 1999 meeting with Morgan and Brown. Notwithstanding significant causation issues with this argument-Defendants have adduced evidence that the concept of the feedback program was developed prior to the September 1999 meeting-this theory cannot succeed because Defendants had a legitimate, non-discriminatory reason for establishing the weekly feedback process. That is, they were attempting to assist Plaintiff in resolving what they reasonably believed were deficiencies in her performance. Plaintiff has not shown evidence that this reason is pretextual. See Coutu v. Martin County Bd. of County Comm'rs, 47 F.3d 1068, 1075 n. 54 (11th Cir.1995) (per curiam) (even if a plaintiff establishes a prima facie retaliation claim, the McDonnell Douglas burden-shifting analysis can still bar the claim where the employer submits a legitimate, non-discriminatory reason and there is no evidence of pretext).

Conclusion

BST's Motion for Summary Judgment [31-1] is hereby GRANTED. Plaintiff's Motions for Extensions of Time [59-1 & 64-1] are hereby GRANTED. Plaintiff's Motion to Apply Adverse Inference Doctrine [63-1], Motion to Compel [63-2], and Motion Pursuant to Rule 56(f) [63-3] are hereby DENIED. Defendants' Motion for Leave to File Surreply [69-1] is hereby GRANTED.

REPORT AND RECOMMENDATION AND ORDER

Plaintiff, Lisa Hogan, filed this employment discrimination action on May 23, 2001 against BellSouth Corporation ("BSC") and BellSouth Telecommunications ("BST") (collectively referred to as "BellSouth", "the company" or "defendant"). Plaintiff alleges that defendant is liable to her for (1) failing to promote her because of her race and sex, (2) terminating her because of her race and sex and in retaliation for protected activity, and (3) racial and sexual harassment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (race and sex) and 42 U.S.C. § 1981 (race). Defendant has moved for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure based upon the pleadings, statements of material fact, exhibits, and discovery materials submitted...