Thursday, August 21, 2008

Fourth Circuit grants new trial to DEA agent in Title VII case

A former DEA special agent denied a promotion will receive a new trial on her Title VII race, sex and retaliation claims because the district court improperly restricted the introduction of evidence regarding a separate, ongoing race discrimination action against the DEA in which the plaintiff was class member, the Fourth Circuit held yesterday in Buckley v. Mukasey, No. 07-1195 (4th Cir., August 20, 2008) (PDF).

In 1977, the DEA was sued for discrimination in hiring and promoting African-Americans, resulting in a 1982 injunction order prohibiting future discrimination and requiring the DEA to institute a new hiring system. (Referred to as the Segar litigation).

In 2001, the Plaintiff, Mary Buckley, who was a member of the Segar class, was temporarily assigned to a position where she was required to assist with a GAO audit. On June 11, 2001, a GAO representative contacted the DEA about conducting a study of the DEA's hiring, promotion, and discipline systems at the request of Congresswoman Eddie Bernice Johnson, a member of the Congressional Black Caucus. An in-house attorney for the DEA commented that the plaintiff's involvement in the audit process was a conflict of interest due to her participation in the Segar case. In July 2001, the DEA posted two positions, and the plaintiff applied for each. She was turned down, and claimed that her participation in the Segar litigation was the motivating factor, along with her sex and race.

At trial, the Plaintiff sought to introduce evidence of the Segar litigation. The district judge limited the evidence that could be presented to the jury with respect to the litigation, invoking Rules 401, 402, 403, 404(a) and 404(b) of the Federal Rules of Evidence. The court found that that Buckley sought to introduce evidence regarding the prior litigation in order to establish "an environment of discrimination" within the DEA. On appeal, the Fourth Circuit held that the district court's ruling on the Segar litigation evidence "constituted an error of law and, thus, an abuse of discretion," and that "the trial court's error in restricting the Segar litigation evidence affected Buckley's substantial rights by rendering her unable to cogently demonstrate Segar litigation-related retaliatory animus." The court held that
[v]iewed in the light of its real purpose of establishing retaliatory animus, the Segar litigation evidence is unquestionably "relevant" within the meaning of Rule 401. Moreover, such evidence of other wrongs or acts is admissible under Rule 404(b), "which allows evidence of other wrongs for purposes such as proof of motive and intent."
Although Rule 404(b) evidence is subject to the balancing analysis of Rule 403, "the potential importance of evidence showing state of mind is properly weighed in the balance." . . . Clearly, the critical importance of the Segar litigation evidence to Buckley's proof of retaliatory animus is not outweighed (much less substantially outweighed) by any danger of unfair prejudice. ... To the extent there is any danger of confusion of the issues, a limiting instruction could be utilized to caution the jury that the Segar litigation evidence is to be considered only as evidence of retaliatory animus.

Adverse inference instruction

Buckley also argued on appeal that the district court wrongly refused her request for an adverse inference instruction against the government for spoliation of evidence. Apparently, the DEA destroyed electronic documents, pursuant to routine internal procedures, after receiving notice of her claims. The district court denied the instruction because (1) Buckley failed to demonstrate willful or intentional conduct, rather than mere negligence, on the part of the government, and (2) she did not pursue a preservation order. The Fourth Circuit noted the error:
In its analysis of Buckley's request for an adverse inference instruction, the district court appears to have committed an error of law by equating the intentional conduct necessary for such an instruction with bad faith, thereby deeming non-bad faith conduct to be negligent conduct. The court did not acknowledge that the DEA's document destruction, though not conducted in bad faith, could yet be "intentional," "willful," or "deliberate." See Vodusek, 71 F.3d at 156. Nevertheless, because we already are remanding for a new trial on other grounds, we simply leave it to the district court to consider on remand - consistent with our discussion herein - Buckley's request for an adverse inference instruction.

The court added that, "even absent a court order," "'[t]he duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.' Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001)."

Tuesday, August 19, 2008

Fourth Circuit affirms dismissal of suit under W.Va. Equestrian Activities Responsibility Act

In an unpublished per curiam opinion, the Fourth Circuit today affirmed summary judgment in favor of the Greebrier Resort in a horseback riding injury case prosecuted by a Florida attorney as plaintiff.

In Rutecki v. CSX Hotels, Inc., No. 071144 (4th Cir., Aug. 19, 2008) (PDF), Heather Rutecki brought suit against CSX Hotels, Inc., d/b/a The Greenbrier Resort for injuries she sustained during a guided horseback ride at the resort. The basic facts of the case were (and I'm simplifying) that the guide's horse became uncooperative and left the trail, causing Rutecki's horse to throw her to the ground. Her complaint alleged violation of the West Virginia Equestrian Activities Responsibilities Act, W. Va. Code § 20-4-1 et seq., gross negligence and ordinary negligence. The district court granted Greenbrier’s motion for summary judgment on all three counts.

Even though Rutecki showed that the Greenbrier violated its statutory duty to "[m]ake reasonable and prudent efforts to determine the ability of a participant to safely engage in equestrian activity" under the EARA, the Fourth Circuit found that the district court properly dismissed the claim because she could not demonstrate that the violation proximately caused her injuries. "For Greenbrier to be liable, its failure to ascertain Rutecki’s riding ability and her ability to control [her horse] must be 'causally related' to the injuries she sustained," the Fourth Circuit ruled. Interestingly, the Greenbrier did not cite lack of causal connection as grounds for summary judgment. However, because "district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence," the Court found Judge Johnston's entry of summary judgment appropriate.

The court made fast work of the gross negligence and negligence counts. It found no evidence that the guide was grossly negligent. It also found, in what I believe is an issue of first impression, that the EARA preempted simple negligence claims:
We agree with the district court that the West Virginia Equestrian Activities Responsibility Act displaces actions for ordinary negligence. The Act states that “there are inherent risks in equestrian activities . . . which are essentially impossible for the operators of equestrian businesses to eliminate.” W. Va. Code § 20-4-1. To permit an action for ordinary negligence against a horseman operating under the Act would contravene its purpose.

Tuesday, August 12, 2008

Justice Thomas B. Miller

This article in today's Daily Mail notes the passing of retired West Virginia Supreme Court of Appeals Justice Thomas B. Miller. In the words of former W.Va. Supreme Court Clerk Ancil Ramey, Justice Miller was "a very hard worker, very intelligent, had great passion for the law, had great compassion for the litigants and the lawyers." Justice Miller was 79.

Monday, August 11, 2008

Marital communications in an electronic age

From Mealey's Online

ROANOKE, Va. - E-mails sent by a man to his wife from his work computer about her lawsuit against her former employer did not waive the marital communications privilege because the defendant failed to show that the man's employer made him aware of its electronic communications policy and whether the policy entitled him to a reasonable expectation of privacy, a federal magistrate judge ruled June 17 in granting the plaintiffs' motion to quash a subpoena served on the man's employer (Cristin L. Sprenger v. The Rector and Board of Visitors of Virginia Tech, et al., No. 07cv502, W.D. Va.; 2008 U.S. Dist. LEXIS 47115).

Tuesday, August 05, 2008

Justice Albright recovering from surgery

Best wishes for a speedy recovery to Justice Albright, who underwent surgery on his esophagus last week.