Atta v. Cisco Sys.

DEE DEE ATTA, Plaintiff, v. CISCO SYSTEMS, INC., Defendant.

CIVIL ACTION FILE NO. 1:18-cv-1558-CC-JKL

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

August 3, 2020

ORDER AND FINAL REPORT AND RECOMMENDATION

This is an employment discrimination case brought under the Americans with Disabilities Act (the "ADA"), the Equal Pay Act (the "EPA"), and Title VII of the Civil Rights Act ("Title VII"). It is before the Court on Plaintiff's Motion for Spoliation Sanctions [Doc. 89] and Defendant's Motion for Summary Judgment [Doc. 85].¹ For the reasons that follow, the undersigned RECOMMENDS that Plaintiff's motion be GRANTED IN PART AND DENIED IN PART and that Defendant's motion also be GRANTED IN PART AND DENIED IN PART.

MOTION FOR SPOLIATION SANCTIONS

Because Plaintiff's motion for spoliation sanctions seeks, among other things, the imposition of adverse evidentiary inferences that might impact the summary judgment analysis, the Court addresses it first.

I. BACKGROUND

Plaintiff filed this single-plaintiff employment discrimination case well over two years ago, and due in no small part to the conduct of both parties, discovery has been far from smooth. Plaintiff's claims in this case are straightforward, even if the underlying facts are not. A long-time employee of Defendant in its Marketing Department (and before that, Scientific Atlanta, which was acquired by Defendant) and cancer-survivor, Plaintiff asserts that, despite exemplary reviews and overwhelmingly positive feedback, she was not paid equally to her male counterparts, and that her inclusion in an August 2016 limited restructuring of the Marketing Department (the "Restructuring") which resulted in her termination from employment was the result of disability discrimination, retaliation for seeking and receiving an accommodation under the ADA, and/or gender discrimination. [See Doc. 52 (second amended complaint); see also Doc. 95 (summary judgment response).]

During the course of discovery, Plaintiff repeatedly requested information and documents pertaining to the Restructuring. While Defendant agreed to produce material about the reasons for Plaintiff's inclusion in it, it objected to what it complained was a broader inquiry into the company-wide business purposes of the Restructuring. As early as October 2018, a dispute arose over, inter alia, one of Plaintiff's requests for production seeking:

Any and all documents that refer to, relate to or reflect upon the business reasons for the "comprehensive limited restructuring" Defendant initiated in or around the summer of 2016 (the [Restructuring]).

[See Doc. 23 at 5-6.] Defendant objected to the request as overly broad and unduly burdensome, asserting that it lacked sufficient particularity and that it was not proportional to the needs of the case. [Id.] Even so, Defendant offered that it was prepared to produce documents and information "related to the restructuring as it applied to the business unit in which Plaintiff was employed, as well as to the personnel with responsibility for implementing the restructuring within that unit." [Id. at 6.] Following the submissions of position statements and a hearing on the matter [see Doc. 22], the undersigned largely agreed, and in an October 25, 2018 order (the "October 2018 Order"), sustained Defendant's objection to producing all documents and information about its "overall reasons for conducting" theRestructuring,² but still allowed that discovery into Plaintiff's employing unit and the "reasons for selecting Plaintiff for separation" were within the permissible scope of discovery. [Doc. 23 at 6-7 (citing Earley v. Champion Int'l Corp., 907 F.2d 1077, 1084 (11th Cir. 1990)).]

After discovery extensions and other disputes were addressed and resolved [see, e.g., Docs. 28, 33], the Court again addressed a discovery dispute about the appropriate scope of discovery as it pertained to the 2016 Restructuring, this time over the proposed topics for the deposition of Defendant's corporate representative pursuant to Federal Rule of Civil Procedure 30(b)(6). [See Docs. 34 (30(b)(6) deposition notice), 54 (minute entry for discovery hearing), 55 (order on discovery dispute).] After hearing from the parties, on April 26, 2019, the Court overruled Defendant's objections, concluded that discovery should be allowed into the decision-making process that resulted in the separation of three other women during the Restructuring, in particular because they were within the same business unit as Plaintiff and had a common supervisor with Plaintiff in Doug Webster, the head of the Service Provider Marketing Group ("SPM Group"), a subgroup of theMarketing Department. [Doc. 55 at 2-4.] The Court emphasized that its earlier discovery determinations about the allowable scope of discovery "never addressed [discovery specifically related to] Webster," and did "not place all [such] information. . . outside the permissible scope of discovery." [Id. at 3-4.]

Finally, after further discovery extensions and disputes arose [see, e.g., Docs. 68, 71, 72, 72], the Court held another discovery hearing on a several matters on August 20, 2019 [Doc. 76; see also Doc. 92 (transcript of Aug. 20, 2019 hearing)]. Among other things, Plaintiff sought additional materials pursuant to a discovery request for documents "show[ing] the manner in which employees [who] were to be terminated as part of the [2016 Restructuring] were identified." In particular, Plaintiff complained that during Webster's deposition, he identified four or five documents created in the process of selecting employees for the Restructuring that were not produced, and which Defendant thereafter claimed could not be located. [See Doc. 92 at 11-13.] Because Defendant maintained that it had conducted a thorough search for the documents and confirmed to the Court that it simply did not have them, the undersigned invited Plaintiff to file a motion for spoliation or other sanctions as necessary. [Id. at 12-13.] Defendant's failure to maintain these documents now constitutes the basis for Plaintiff's motion for spoliation sanctions.

Turning, then, to the missing documents, Webster testified as follows:

• Asked if "[a]nything like stacked rankings [] were used in connection with" the Restructuring, Webster stated that "assessments were made of each employee's [] traits [that] were needed . . . to help structure the evolution of the organization," and that information from those assessments would be included in "nine block documents [i.e. spreadsheets]." (Dep. of Doug Webster [Doc. 111] at 128-29). Those nine-block documents were used "as ongoing relevance," but were "largely discontinued by Cisco at some stage," while other, "various spreadsheets [were] used in determining the viability of candidates for the reduced number of roles," after the Restructuring. (Id. at 129.) Webster, managers, and possibly human resources ("HR") personnel, contributed data to these so-called nine-block documents. (Id. at 129-30.)

• Asked immediately thereafter "what kind of documents were created that reflected the assessment of the people in [Plaintiff's g]roup," Webster referred to an Excel spreadsheet with multiple tabs, which was created by himself, managers, and HR personnel, and was "relied upon in making final decisions about [] whose positions would be terminated and whose would not." (Id. at 130, 131; see also id. at 134.) The Excel spreadsheet was maintained by HR, and was one of two main documents used during the Restructuring. (Id. at 134-35.)

• Webster then explained that the Excel spreadsheet was used in conjunction with PowerPoint documents—referred to as "[o]rganizational design documents"—that included "the refined roles and scope of the organization." (Id.) Those were prepared by a third-party consulting firm, with input from Webster, subordinate Directors, and HR personnel (id.; see also id. at 180), and appears to be the other main type of document used during the Restructuring (id. at 134).

• Asked if there were other documents that he created in relation to the Restructuring, Webster said he prepared "a summary of the [Restructuring's] impact," to share with the chief marketing officerand senior stakeholders in the business group, which was likely shared in some form via email. (Id. at 132-33.)

• Finally, discussing the financial parameters of the Restructuring, Webster testified that he was given "both a budget and the guidelines . . . that we needed to adhere to," which Webster affirmed was a "written set of rules . . . around what would be consider appropriate organizational health parameters for the amount of employees and their respective grade levels in the organization." (Id. at 171-72.) As part of this, there were target levels for total salary and headcount, but those targets included some flexibility. (Id. at 174-76.)

Defendant represents that the nine-block documents, the organizational design documents, the impact summary, and the budget and guidelines have been lost; and they certainly have not been produced to Plaintiff. The multi-tab Excel spreadsheet reflecting the assessment of employees within Plaintiff's business group, referred to as the "Business Case" for the Restructuring, has been produced, as has the final list of employees selected for separation during the Restructuring. [See Doc. 94 at 5; see also Docs. 86-23, 99-2 (portions of Business Case included in summary judgment filings).] Plaintiff has also withdrawn the portion of her motion pertaining to Webster's impact summary [see Doc. 102 at 2, n.1], leaving the nine-block documents, the organizational design documents, and the budget and guidelines (together, the "Restructuring Documents") still at issue.

II. THE PARTIES' ARGUMENTS

In her sanctions motion, Plaintiff argues that because Defendant allowed the loss of the Restructuring Documents, the Court should strike Defendant's answer, or, in the alternative, impose an adverse inference that...