United States District Court, D. Arizona
G. Campbell United States District Judge
Michelle Tipp has sued Defendants Adeptus Health
Incorporated; Adeptus Health Phoenix Holdings, LLC; Adeptus
Health Management, LLC; and AGH Laveen, LLC, for
discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”). Doc. 24. The Court stayed the case
against all Defendants except AGH Laveen
(“Defendant”) because of an ongoing bankruptcy
proceeding. Doc. 69. Plaintiff and Defendant separately move
for summary judgment on Plaintiff's Title VII claims.
Docs. 76, 78. Plaintiff also seeks a spoliation sanction.
Doc. 78. The motions are fully briefed, and oral argument
will not aid the Court's decision. See Fed. R.
Civ. P. 78(b); LRCiv 7.2(f). For the reasons stated below,
the Court will deny both motions.
following facts are undisputed. Defendant is an Arizona-based
hospital where Plaintiff began working in January 2015 as a
permanent, full-time case manager. Doc. 77 ¶¶ 5,
23; Doc. 87 ¶¶ 5, 23. Plaintiff's supervisor
was Kimothy Sparks. Doc. 77 ¶ 27; Doc. 87 ¶ 27. In
June 2015, Plaintiff complained to Defendant's CEO,
Robert Honeycutt, about Mr. Sparks's unresponsiveness.
Doc. 77 ¶ 31; Doc. 87 ¶ 31. Mr. Honeycutt spoke
with Mr. Sparks to address the problem. Doc. 77 ¶ 32;
Doc. 87 ¶ 32. In August 2015, Plaintiff again complained
to Mr. Honeycutt about Mr. Sparks's unresponsiveness.
Doc. 77 ¶ 33; Doc. 87 ¶ 33. In both August and
September 2015, Plaintiff asked that Mr. Honeycutt consider
transferring her to a different supervisor. Doc. 77
¶¶ 34-35; Doc. 87 ¶¶ 34-35.
October 12, 2015, human resources representative Andrea Scott
interviewed Plaintiff about her complaint and transfer
request. Doc. 77 ¶ 36; Doc. 87 ¶ 36. Plaintiff
conveyed that Mr. Sparks was not communicating well or
addressing her professional needs, which affected her
performance. Doc. 77 ¶ 37; Doc. 87 ¶ 37. Plaintiff
made no allegation of sexual harassment against Mr. Sparks.
Doc. 77 ¶ 39; Doc. 87 ¶ 39.
an upsetting interaction with Mr. Sparks on October 16, 2015,
Plaintiff offered her resignation to Mr. Honeycutt. Doc. 79
¶ 31; Doc. 87 ¶¶ 96-97; see Doc. 81
(failing to controvert). Mr. Honeycutt refused to accept it,
stating that Plaintiff was an asset to the organization.
October 22, 2015, Ms. Scott informed Plaintiff that she would
remain under the supervision of Mr. Sparks, who had promised
to improve his supervision. Doc. 77 ¶ 40; Doc. 87 ¶
40. Upset by this decision, Plaintiff excused herself from
the meeting with Ms. Scott. Doc. 79 ¶ 35; Doc. 87 ¶
101; see Doc. 81 (failing to controvert). Later that
day, Plaintiff met with Ms. Scott again to allege - for the
first time - that Mr. Sparks sexually harassed her. Doc. 77
¶ 41; Doc. 87 ¶ 41. To support her allegation,
Plaintiff shared text messages she received from Mr. Sparks
and described some of his conduct. Doc. 79 ¶¶
36-37; Doc. 87 ¶ 102; see Doc. 81 (failing to
controvert). Ms. Scott informed Plaintiff that she should
work from home while Ms. Scott investigated the complaint.
Doc. 79 ¶ 38; Doc. 87 ¶ 103; see Doc. 81
(failing to controvert). Ms. Scott told Plaintiff that she
would call her with an update on October 23, 2015.
Scott interviewed Mr. Sparks and Plaintiff's co-workers.
See Doc. 79-1 at 63-68. These interviews suggested
that Mr. Sparks slept at Plaintiff's residence on two
occasions, they shared weekly dinners together, and Plaintiff
was known to joke about being pregnant with Mr. Sparks's
child. See id.
meeting on October 26, 2015, Defendant's Vice President
of Human Resources, Traci Bowen, informed Plaintiff that Mr.
Sparks had been fired. Doc. 76-3 at 18-19; Doc. 87-1 ¶
29. Ms. Bowen then explained that Plaintiff was likewise
terminated because of her lack of transparency in making the
sexual harassment complaint. Doc. 76-3 at 31-32; Doc. 87-1
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Summary judgment is
appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, shows “that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). Summary judgment is also appropriate against a party
who “fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Celotex, 477 U.S. at 322. Only
disputes over facts that might affect the outcome of the suit
will preclude the entry of summary judgment, and the disputed
evidence must be “such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Defendant's Failure to Comply with Local Rule
motion for summary judgment includes a separate statement of
facts as required by Local Rule of Civil Procedure 56.1(a).
Doc. 79. Defendant's response includes a supplemental
statement of facts, but does not include a controverting
statement of facts as required by Local Rule 56.1(b). Doc.
81. Defendant has thus failed to controvert any of
Plaintiff's factual assertions. Plaintiff asks the Court
to treat the facts she asserts as admitted for purposes of
her motion. Doc. 88 at 1-2. This Court has imposed such a
sanction where the responding party fails to file any
statement of facts whatsoever. See Kizzee v. Walmart,
Inc., No. CV10-0802-PHX-DGC, 2011 WL 3566881, at *2 (D.
Ariz. Aug. 15, 2011). In this case, however, Defendant did
offer supplemental facts (Doc. 81) and a comprehensive
statement of facts - on the same issues - in support of its
own motion (Doc. 77). In light of these submissions, the
Court will not treat all of Plaintiff's factual
assertions as admitted, but instead will look to
Defendants' factual statements to determine whether
Defendant has controverted specific factual assertions.
seeks a directed verdict or, alternatively, an adverse
inference jury instruction, for Defendant's destruction
of Ms. Scott's handwritten notes of her investigation.
Doc. 78 at 6-9. On November 17, 2015, Plaintiff sent a
litigation hold notice to Defendant. Doc. 79 ¶ 77; Doc.
79-2 at 16-20; see Doc. 81 (failing to controvert).
On the following day, Ms. Bowen notified Mr. Honeycutt and
Ms. Scott via email of the litigation hold. Doc. 79-2 at 22.
She stated that they must “hold on to any files, notes
or anything else related to [Plaintiff] and our investigation
of her claim.” Id.
Scott used a notebook to record notes during her various
meetings as a human resources representative. Doc. 79-4 at 4.
This notebook included, among other things, notes regarding
Plaintiff's sexual harassment complaint. See Id.
at 4-5. Yet when Ms. Scott had used all of the remaining
pages of the notebook in March, April, or May 2016, she
shredded the notebook in violation of Defendant's duty to
preserve. Id. Although she had converted her notes
into a computerized report, Ms. Scott never photocopied or
scanned the handwritten version before shredding it.
failure to preserve [evidence], once the duty to do so has
been triggered, raises the issue of spoliation of evidence
and its consequences.” Surowiec v. Capital
Title Agency, Inc., 790 F.Supp.2d 997, 1005 (D.
Ariz. 2011) (citation omitted). Spoliation is the destruction
or material alteration of evidence, or the failure to
otherwise preserve evidence, for another's use in
litigation. Id. A party seeking sanctions for
spoliation of electronically stored information
(“ESI”) must address the factors set forth in
Rule 37(e) of the Federal Rules of Civil Procedure. That
rule, which was amended on December 1, 2015, identifies the
circumstances under which various kinds of sanctions can be
imposed for the loss of ESI. For spoliation of evidence other
than ESI, such as in this case, the common law continues to
control, and the party seeking sanctions must prove: (1) the
party having control over the evidence had an obligation to
preserve it when it was destroyed or altered, (2) the
destruction or loss was accompanied by a culpable state of
mind, and (3) the evidence that was destroyed or altered was
relevant to the claims or defenses of the party that sought
discovery of the evidence. Surowiec, 790 F.Supp.2d
at 1005 (internal citation omitted).
related issue - prejudice resulting from loss of the evidence
- is also relevant when addressing sanctions for the loss of
non-ESI evidence. Although some courts have presumed
prejudice upon a showing of bad faith or gross negligence,
see, e.g., Pension Comm. of Univ. of Montreal
Pension Plan v. Banc of Am. Secs., LLC, 685 F.Supp.2d
456, 467-68 (S.D.N.Y. 2010), other cases - the
better-reasoned cases, in this Court's view - require a
showing of actual prejudice, noting that such a showing
“is an important check on spoliation allegations and
sanctions motions, ” Rimkus Consulting Grp., Inc.
v. Cammarata, 688 F.Supp.2d 598, 616-18 (S.D. Tex.
concedes that it had an obligation to preserve Ms.
Scott's handwritten notes. Doc. 80 at 6-8.
argues that the handwritten notes were relevant because they
included contemporaneous impressions of Ms. Scott's
investigation. Doc. 78 at 8-9; Doc. 88 at 4. Ms. Scott
testified that the handwritten notes reflected “the
entire investigation” into Plaintiff's claims,
including witness interviews. Doc. 81-4 at 7-8. She testified
that she created a typed “copy” of the notes
before they were shredded, and that the typed version
included “everything that was in my handwritten
notes.” Doc. 81-5 at 10, 12. Defendant argues that the
handwritten notes are not relevant because Plaintiff has
received the typed version - the same version on which Ms.
Bowen relied in making the termination decision. Doc. 80 at
7-8. The Court does not agree. Ms. Scott's assertion that
her typed notes include a complete copy of her handwritten
notes is not an assertion Plaintiff must accept on faith,
without testing against the original notes. The handwritten
notes may have included additional or inconsistent
information that would be relevant to this case.
respect to culpability, Plaintiff contends that
Defendant's failure to preserve the handwritten notes or
discipline Ms. Scott for destroying them constitutes bad
faith (Doc. 78 at 9; Doc. 88 at 4-5), but the Court is not
persuaded. Defendant issued a litigation hold notice that
included notes. Doc. 79-2 at 22; Doc. 81-5 at 11. When asked
why she destroyed her notebook of handwritten notes, Ms.
Because it was a running log, it didn't occur to me when
I shredded it, when it got full that - of this e-mail [the
litigation hold notice] because I forgot it was even sent at
that point, and in addition, I had already typed up
everything that ...