Employer Wasn’t Liable for Discarding Evidence After Termination


By Christine M. Burke September 11, 2018


  • The failure to return a fired employee's calendar that included notations about when a co-worker arrived late without reprimand was not unlawful withholding of evidence in a discrimination lawsuit.
  • The outcome of the case hinged partly on the court's ruling that the employer could not have foreseen the calendar was relevant to a potential lawsuit. Prior to her discharge, the plaintiff had not claimed discrimination.
  • Although the employer was not liable for withholding evidence in Illinois, the result may have been different in another state.

An employer was not liable under Illinois law for negligent spoliation of evidence when it failed to produce a former employee's calendar during discovery in a discrimination lawsuit, according to the U. S. District Court for the Northern District of Illinois. 

The plaintiff in this case, a black woman, worked as a customer service representative. Following her absence for two consecutive days in August 2016, her supervisor informed her via text message that she was being fired because of her excessive absences during the previous 30 days.

When the plaintiff next reported to the office on August 20, she was given a box that contained personal items collected from her desk. The only item not returned was a calendar that she used to keep track of personal and work-related events. Among other things, she used the calendar to record when a white co-worker arrived at the office late without reprimand. On some days, she wrote "His" on the calendar, followed by the time of his arrival. On these days, she also wrote "Mine," followed by her own arrival time.

The plaintiff sued her employer for race discrimination under Title VII of the Civil Rights Act of 1964. She alleged that the employer enforced its attendance policies inconsistently and in a way that favored white employees. During discovery—more than a year after her termination—the plaintiff identified her calendar as a relevant document. However, the employer failed to produce the calendar in discovery, indicating that the document was lost or destroyed. The plaintiff then asserted a claim for negligent spoliation under Illinois common law, and the employer moved to dismiss it.

The district court sided with the employer, finding that it did not have a duty to preserve the calendar under Illinois law, which imposes such a duty only if particular conditions are satisfied. 

First, the court determined that the particular employment relationship did not create a duty to preserve evidence and that there was no special circumstance creating such a duty. The employer simply boxed up the plaintiff's property to return to her, as it would for any employee. 

Second, the court ruled that a reasonable person in the employer's position would not have foreseen that the evidence was material to a potential lawsuit. The plaintiff did not allege that she complained about racial animus or inconsistent treatment prior to being fired. Absent such allegations, the court explained, the employer could not have been expected to review the calendar to search for evidence of discrimination or surmise that the "His" and "Mine" notations related to perceived discrimination. 

Mohr v. WeatherTech aka MacNeil Automotive Prods. Ltd., N.D. Ill., No. 1:17-cv-04451 (July 5, 2018).

Professional Pointer: Employers should be familiar with the laws in their state about preserving evidence. Although the employer in this case succeeded in avoiding liability for spoliation, or the intentional withholding or destruction, of evidence, the result might be different under another state's laws. In addition, employers should keep in mind that beyond state spoliation laws, federal law requires employers to preserve evidence as soon as litigation is reasonably anticipated.

Christine M. Burke is an attorney with Lorenger & Carnell PLC, the Worklaw® Network member firm in Alexandria, Va.


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