Table of Contents

Table of Authorities.......................................................................................... ii

Argument.......................................................................................................... 1

A. The EEOC was prejudiced by JetStream’s spoliation because only the destroyed documents could have conclusively disproved JetStream’s eleventh-hour explanation for not hiring the claimants................................................................. 2

1. The destroyed documents could have eviscerated Austin’s and Cadorniga’s credibility....................................................................................... 3

2. The destroyed documents could have bolstered the EEOC’s other evidence of discrimination................................................................................ 5

B. JetStream ignores the impact of the EEOC’s recordkeeping

regulation........................................................................................ 10

1. JetStream’s duty to preserve documents stemmed not from

the possibility of impending litigation, but from 29 C.F.R.

§ 1602.14..................................................................................... 11

2. Hicks v. Gates Rubber Co. holds that prejudicial violations of

29 C.F.R. § 1602.14 warrant an adverse inference instruction

whether or not the spoliation involved bad faith......................... 12

3. JetStream did not preserve any contemporaneous record of

Knoke’s recommendations.......................................................... 16

C. The EEOC did not waive its argument that the district court should

have excluded testimony................................................................. 17

D. The district court did not and could not use cross-examination as an “alternative” sanction........................................................................................... 19

Conclusion...................................................................................................... 21

Certificate of Compliance

Certificate of Privacy Redaction

Certificate of Paper Copies

Certificate of Virus Scan

Certificate of Service

Table of Authorities

Cases

Allen v. Seidman, 881 F.2d 375 (7th Cir. 1989).............................................. 16

Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir. 1997).............................. 14

Burlington N. & Santa Fe. Ry. Co. v. Grant, 505 F.3d 1013 (10th Cir. 2007) 11

Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93 (2d Cir. 2001)........... 15

Capaci v. Katz & Besthoff, Inc., 711 F.2d 647 (5th Cir. 1983)........................ 15

Dalcour v. City of Lakewood, 492 F. App’x 924 (10th Cir. 2012).................. 21

EEOC v. Am. Nat’l Bank, 652 F.2d 1176 (4th Cir. 1981)......................... 11, 15

Favors v. Fisher, 13 F.3d 1235 (8th Cir. 1994)............................................... 15

Henning v. Union Pac. R.R. Co., 530 F.3d 1206 (10th Cir. 2008)....... 11, 20-21

Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987)...................... 12-15

Jones v. Needham, 856 F.3d 1284 (10th Cir. 2017).......................................... 7

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)......................... 12-13

Ohler v. United States, 529 U.S. 753 (2000).................................................... 18

Phillips v. Aaron Rents, Inc., 262 F. App’x 202 (11th Cir. 2008)................... 14

Richardson v. Oldham, 12 F.3d 1373 (5th Cir. 1994)..................................... 19

Rummery v. Ill. Bell Tel. Co., 250 F.3d 553 (7th Cir. 2001)............................ 16

Russell v. Univ. of Tex., 234 F. App’x 195 (5th Cir. 2007)............................. 14

Talavera v. Shah, 638 F.3d 303 (D.C. Cir. 2011)........................................... 14

Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136 (10th Cir. 2009)........... 11, 14

United States v. Chavez, 229 F.3d 946 (10th Cir. 2000).................................. 18

United States v. Perez-Herrera, 86 F.3d 161 (10th Cir. 1996)......................... 18

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983)................. 13

Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 839 F.3d 1251

(10th Cir. 2016).............................................................................................. 18

Statutes

42 U.S.C. § 2000e-8(c)................................................................................... 11

Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1072

(codified at 42 U.S.C. § 1981a(c))................................................................... 13

Rules and Regulations

Fed. R. Civ. P. 50............................................................................................ 13

Fed. R. Civ. P. 59............................................................................................ 19

29 C.F.R. § 1601.12(b)..................................................................................... 7

29 C.F.R. § 1602.14............................................................................ 10-16, 21

Other Authority

6A James W. Moore & Jo D. Lucas, Moore’s Federal Practice ¶ 59.14

(2d ed. 1993)................................................................................................... 19

“How to Learn Languages: Why Speaking is Harder than Listening?” http://www.howtolearnlanguages.org/why-speaking-is-harder-

than-listening.html............................................................................................ 6

“Public Spaces,” http://www.acousticsciences.com/public-spaces/conference-rooms-and-classrooms........................................................................................................ 7

Argument

In its opening brief, the EEOC urged this Court to reverse and remand for a new trial because the district court refused to sanction JetStream for spoliation in violation of the EEOC’s recordkeeping regulation. For five years, JetStream claimed that it had not hired the claimants because of problems with their applications and/or interviews. After discovery conclusively proved this explanation to be untrue, JetStream admitted that it had been providing false information to the government. Appellant App. 148-52, 481, 538. Unable to rely on its longstanding explanation for not hiring the claimants, JetStream changed its story and offered a new, completely different explanation for its hiring decisions. Conveniently, JetStream had already destroyed all records that could have disproved its new story.

Contrary to the evidence, JetStream now claims that it relied on a false story for five years because it made a “costly mistake” in how it framed and conducted its investigation into the hiring decisions. Appellee Br. 8. Even granting JetStream the benefit of every doubt, it is impossible to interpret its flawed investigation as a “mistake.” JetStream admits that director of hub operations Frank Austin, who was “responsible for staffing,” Appellee Br. 4, “never communicated with [human resources director Mariela] Feliciano about the AirServ recommendations” until July 2014, five years after the claimants filed their charges of discrimination. Appellee Br. 8. Equally significant, when JetStream learned about the charges, co-owner Marc Desnoyers told the investigators not to contact his partner, David Norris, except to “make sure he understands the issues and doesn’t say something prejudicial.” Appellant App. 372, 461. Far from being a “mistake,” JetStream’s inadequate investigation was a deliberate attempt not to learn the truth.

At trial, the EEOC sought to show that JetStream was being untruthful, both about its changed story and about its flawed investigation. Without the critical documents, however, the EEOC was severely prejudiced in its ability to do so. Thus, the district court committed reversible error by not sanctioning JetStream for spoliation.

A. The EEOC was prejudiced by JetStream’s spoliation because only the destroyed documents could have conclusively disproved JetStream’s eleventh-hour explanation for not hiring the claimants.

Five years after it submitted a position statement to the EEOC and one year after the EEOC filed suit, JetStream said for the first time that it relied exclusively on AirServ supervisor Arnold Knoke’s recommendations in creating its Round 1 list of potential hires. Appellant App. 115-16, 138, 148-52. Frank Austin, director of hub operations, and Gail Cadorniga, corporate training manager, were the lynchpin of this new defense. If the EEOC could have proved that Austin and Cadorniga were being untruthful, JetStream’s case would have fallen apart. Conclusive evidence that JetStream did not rely on Knoke’s recommendations, coupled with the EEOC’s other evidence of discrimination, might well have led the jury to find for the EEOC.

1. The destroyed documents could have eviscerated Austin’s and Cadorniga’s credibility.

Austin and Cadorniga testified that they met with Knoke on November 5th as he recommended eighty-nine people from a list of AirServ’s current employees. Appellant App. 489-90, 494, 544-45. Knoke testified that he did not remember this meeting. Appellant App. 560, 563-64. Austin and Cadorniga claimed that they each took handwritten notes of Knoke’s recommendations at the purported meeting, that Cadorniga transferred the handwritten notes to an Excel spreadsheet later that day, and that the Round 1 list was identical to the names on those documents. Appellant App. 489-90, 495, 548, 553. Unfortunately, JetStream destroyed or lost all of these employment records. See infra at 16-17.

The jury could easily have determined whether Austin and Cadorniga were testifying truthfully if JetStream had retained the handwritten notes and/or the Excel spreadsheet, as required by the EEOC’s recordkeeping regulation. Without those documents, there was no way to know for sure whether the Round 1 list was identical to Knoke’s recommendations. And without being able to prove definitively that the Round 1 list was not identical to Knoke’s recommendations, the EEOC was severely prejudiced in its effort to disprove JetStream’s new story.

JetStream now attempts to render Austin’s and Cadorniga’s credibility irrelevant by arguing that five Muslim employees, including three of the claimants, appeared on the Round 1 or Round 2 lists of potential hires. Appellee Br. 6-7. However, two of those individuals, Kamal Ali and Jabril Yassin, are men. The record does not show whether either one of them wore a head covering but, as men, neither one would have worn a hijab.

JetStream did hire claimants Milko Haji (who is not a subject of this appeal) and Amina Oba, but both of them agreed to work without their hijabs, and JetStream terminated Oba after Norris saw her wearing her hijab during breaks. Appellant App. 351, 515-17, 522; Supp. App. 9-10; see Opening Br. 6-7. Norris did not interview Sarah Abdirahman and was unaware that she wore a hijab until he saw her when she reported for a mandatory drug test. Appellant App. 484. At that point, he pulled her aside and told her that he could hire her only if she would remove the hijab at work. Appellant App. 486-87. Because she would not comply with this demand, she did not complete the hiring process.

Contrary to JetStream’s argument, therefore, the five Muslim employees on the Round 1 or Round 2 lists do not defeat the EEOC’s claim that JetStream discriminated against women in hijabs. Austin’s and Cadorniga’s credibility remains key to this case.

2. The destroyed documents could have bolstered the EEOC’s other evidence of discrimination.

The claimants uniformly testified that Norris told them they would have to remove their hijabs if they wanted employment with JetStream.[1] Appellant App. 486-87, 503, 505-06, 509, 512-14. They explained that they wore the hijabs for religious reasons and could not remove them, and they asked Norris to accommodate this religious practice. They testified that Norris refused. Id. If the jury had believed this testimony, it would not have concluded that Safia Abdulle circulated an “unfounded rumor” that Norris was rejecting anyone who wore a hijab, Appellee Br. 7, but, rather, that she was telling the truth.

JetStream argues that the claimants misunderstood Norris, but the claimants testified otherwise. “[S]peaking is bad for me,” Abdulle testified, “but I understand. And I understood very well during the interview what he said and how I explain who I am.” Appellee App. 404; see also Appellant App. 512; Supp. App. 7 (Abdulle added that Norris pointed at her hijab); Appellant App. 503; Supp. App. 3 (Hana Bokku testified that she understood Norris when she was in the office with him, and that he pointed at her hijab); Supp. App. 6 (Sadiyo Hassan Jama testified that she understood what Norris was saying and that she knew the difference between the words “headscarf” and “skirt”); Appellee App. 115, 132 (Abdirahman testified that she had no problem understanding Norris, that she knew the difference between the words “headscarf” and “skirt,” and that Norris pointed at her hijab). Amino (Saida) Warsame conceded that she sometimes needs help understanding English, but, like Abdulle, Bokku, and Abdirahman, she testified that Norris removed all doubt about his message by pointing at her hijab. Supp. App. 4-5.

JetStream seeks to cast doubt on the claimants’ testimony by suggesting that they could not understand English and misinterpreted Norris’s words. Appellee Br. 14. In support of this argument, JetStream points to the district court’s statement that the claimants were “very difficult” to understand. Id. The claimants’ accents, however, are a red herring. It is often easier for people to understand a foreign language than to speak it. See, e.g., “How to Learn Languages: Why Speaking is Harder than Listening?” http://www.howtolearnlanguages.org/why-speaking-is-harder-than-listening.html (last visited July 11, 2017). Likewise, it is easier for people to understand foreign languages in a quiet one-on-one setting than in a “reverberant space.”[2] See, e.g., Acoustic Sciences Corp., “Public Spaces,” http://www.acousticsciences.com/ public-spaces/ conference-rooms-and-classrooms (last visited July 13, 2017).

JetStream also criticizes the claimants for not providing every detail of their interactions with Norris in their charges of discrimination. Appellee Br. 13. Charges are not intended to be exhaustive recitations of the facts; they only require enough information to tell the EEOC what to investigate. 29 C.F.R. § 1601.12(b) (charge is sufficient if it “describe[s] generally the action or practices complained of”); Jones v. Needham, 856 F.3d 1284, 1290 (10th Cir. 2017) (“[T]he charge document must contain the general facts concerning the discriminatory actions later alleged in the legal claim.”) (emphasis added). The claimants’ charges satisfied this standard. It is unsurprising that their later testimony would flesh out their initial, preliminary statements.

Finally, JetStream casts aspersions on two of the EEOC’s witnesses while blithely ignoring problems with its own evidence. Appellee Br. 12-13. JetStream describes “a litany of disinterested witnesses” who testified that the company “allowed employees to wear headscarves.” Appellee Br. 10. JetStream may be correct that it tolerated secular head coverings despite its policy to the contrary. Compare Appellant App. 462-64 (human resources instructed Martinez to tell applicants that no head coverings were permitted) with Appellee App. 767 (Cadorniga testified that some employees wore baseball hats or hooded sweatshirts). However, regardless of its treatment of secular head coverings, the EEOC introduced evidence that JetStream did not permit hijabs.

The administrative manager during the initial job fair, Brenda Holan, testified that Norris made disparaging remarks about Muslim women in hijabs. “David Norris said that we should get rid of all the female Muslim women that we have, and that all they do is wear headscarves, and that they look like terrorists to the United Airlines’ passengers,” she said. Appellant App. 467. Norris also told her that “he wasn’t going to tolerate it. They had a uniform to wear. It is not going to be tolerated. And we will not deal with this bullshit.” Appellant App. 468. Not until 2011, after the EEOC filed this lawsuit and Norris had stepped down from his position as Executive Vice President, did JetStream amend its written policy to authorize “scarves worn as a head dress.” Appellant App. 388, 523-26, 539-40, 542-43.

All of JetStream’s “disinterested witnesses” had credibility problems of their own. Austin and Cadorniga testified that they saw women wearing head coverings, but, as the individuals who met with Knoke and heard his recommendations, they were also the key to JetStream’s defense that the Round 1 list came entirely from their notes at that meeting. As discussed supra at 3-4, the destroyed documents could have eviscerated their credibility. Moreover, Cadorniga’s testimony contradicted her earlier deposition testimony that she could not remember if she saw women with headscarves. Appellee App. 837-38. Cadorniga conceded that her memory at the time of her deposition was probably better than her memory two years later at trial. Appellee App. 838.

Other testimony was equally problematic for JetStream. Even though various witnesses testified that they saw multiple JetStream employees wearing headscarves, some portions of their testimony were demonstrably wrong, throwing their credibility into question. Safety manager Ann Leal testified that she saw Haji and other women wearing religious headscarves during training classes, Appellee App. 575, 577, and former lead cabin cleaner Kofi Devi testified that Haji “always” wore a headscarf. Appellee App. 861. However, JetStream successfully sought summary judgment on Haji’s claim precisely because Haji did not wear her hijab at work. See Supp. App. 8. Furthermore, the individuals in the training classes had not necessarily been hired yet, and some of them attended in their AirServ uniforms or street clothes. Appellee App. 594, 607.

Additionally, some of the witnesses who testified that they saw employees wearing religious headscarves could not, in fact, tell the difference between a secular headscarf and a hijab. If JetStream tolerated secular head coverings but not hijabs, as the EEOC contends, the distinction would be critical. Leal and Earl Alexander, manager of operations at Denver International Airport, testified that they saw Kedija Tossa wearing a headscarf, but Tossa was Christian and her headscarf was not a Muslim hijab. Appellee App. 575, 594, 608, 629-30. Alexander and Devi also said that they saw Raj Singh wearing a head covering, but Singh is a male who does not wear a hijab; rather, he covers his head in accordance with his Sikh religion. Appellee App. 673-74, 686, 862; Supp. App. 1-2. Alexander did not know whether any of the other people he saw wearing head coverings were Muslim. Appellee App. 674.

For all of these reasons, JetStream is wrong that the jury could not credit the EEOC’s evidence. The jury was forced to choose between accepting the EEOC’s argument and JetStream’s argument. The destroyed documents could well have made the difference.

B. JetStream ignores the impact of the EEOC’s recordkeeping regulation.

Despite its importance to this case, JetStream does not discuss the EEOC’s recordkeeping regulation, 29 C.F.R. § 1602.14. Indeed, JetStream mentions the regulation only once, in passing. Appellee Br. 28. It is no wonder that JetStream prefers to ignore the EEOC’s regulation. By destroying all contemporaneous employment records in violation of 29 C.F.R. § 1602.14, and thereby prejudicing the EEOC, JetStream removed the district court’s discretion not to sanction it for spoliation.

1. JetStream’s duty to preserve documents stemmed not from the possibility of impending litigation, but from 29 C.F.R. § 1602.14.

JetStream erroneously suggests that because its hiring documents disappeared “well before it had any reason to believe litigation was imminent,” spoliation sanctions were inappropriate. Appellee Br. 29. The district court accepted this argument in denying the EEOC’s motion for a new trial. Opening Br. Add. 30. Although it is true that the possibility of litigation is one source of a duty to preserve evidence, Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007), that is not the basis of JetStream’s obligation here.

As the EEOC described in its opening brief, Opening Br. 22-23, Title VII requires employers to keep employment records for such period of time as the EEOC prescribes. 42 U.S.C. § 2000e-8(c). The EEOC has issued a regulation requiring employers to keep hiring records for one year or until the final disposition of a discrimination charge or lawsuit, whichever is later. 29 C.F.R.

§ 1602.14. “Employers have been on notice since the earliest days of Title VII’s enforcement of the critical importance of the maintenance of employment records.” EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1195-96 (4th Cir. 1981).

Spoliation sanctions are “proper” when a party has a duty to preserve evidence, the party destroys the evidence, and the destruction prejudices the adverse party. Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009); Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1220 (10th Cir. 2008). The EEOC’s recordkeeping regulation satisfies the first prong of this test. Whether or not JetStream anticipated litigation, the EEOC’s regulation required it to maintain its hiring records.

2. Hicks v. Gates Rubber Co. holds that prejudicial violations of

29 C.F.R. § 1602.14 warrant an adverse inference instruction whether or not the spoliation involved bad faith.

JetStream wrongly claims that “[t]his Court has never held that a district court abused its discretion for failing to issue an adverse inference instruction.” Appellee Br. 25. In Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987), however, this Court held that “because Gates violated § 1602.14 by destroying the personnel records, Hicks is entitled to the benefit of a presumption that the destroyed documents would have bolstered her case.” Id. at 1419 (emphasis added). The Court reversed and remanded partly on this ground. Id. In doing so, the Court explained that Hicks was “entitled” to the presumption even though “the record does not support the assertion that Gates acted in bad faith in destroying the documents.” Id. at 1419 n.5. By recognizing an “entitle[ment],” this Court negated any possibility that its language about bad faith was merely dicta, as JetStream argues. Appellee Br. 27.

Contrary to JetStream’s assertion, Hicks had nothing to do with “a rebuttable presumption at the pretext stage of the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).” Appellee Br. 26. Indeed, Hicks did not cite McDonnell Douglas. Like the instant case, Hicks was an appeal from a trial verdict.[3] 833 F.2d at 1409. At trial, the sole question is “discrimination vel non,” and the prima facie case is no longer relevant. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).

While it is true that the Hicks Court did not specifically reference an “adverse inference instruction,” that is because Title VII did not authorize jury trials prior to 1991. See Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1072 (codified at 42 U.S.C. § 1981a(c)). Thus, as JetStream fails to recognize, Appellee Br. 27, in ordering the district court to apply an adverse inference based on the defendant’s destruction of evidence, the Hicks Court was addressing the district court as the finder of fact, not as the arbiter of a Rule 50 motion. 833 F.2d at 1419. In the instant case, where the jury, not the district court, was the finder of fact, it is the jury that should have applied the adverse inference.

JetStream is mistaken that the EEOC seeks “strict liability” in this case for a violation of 29 C.F.R. § 1602.14. Appellee Br. 27-28. The EEOC acknowledged in its opening brief that spoliation sanctions are only appropriate when one party’s destruction of evidence prejudices the adverse party. Opening Br. 21. Here, JetStream’s document destruction was prejudicial. See supra at 2-10. Thus, Hicks controls and the district court should have issued an adverse inference instruction.

The district court opted not to follow Hicks even though it acknowledged that “Hicks . . . has not been explicitly overruled by the Tenth Circuit.” Opening Br. Add. 29-30 (relying instead on Turner v. Pub. Serv. Co of Colo., 563 F.3d 1136 (10th Cir. 2009), and Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir. 1997)). Unless and until an en banc panel of this Court overrules Hicks, however, Hicks is binding law. See Opening Br. 28-29. JetStream argues that other district courts have also rejected Hicks and relied, instead, on Turner and Aramburu, Appellee Br. 27-28, but those courts, too, lack the power to disregard controlling precedent.

JetStream cites unpublished opinions from the Eleventh and Fifth Circuits to support its argument that violations of 29 C.F.R. § 1602.14 do not warrant an adverse inference instruction in the absence of bad faith. Appellee Br. 28 (citing Phillips v. Aaron Rents, Inc., 262 F. App’x 202 (11th Cir. 2008); Russell v. Univ. of Tex., 234 F. App’x 195 (5th Cir. 2007)). Neither of those cases mentions the EEOC’s recordkeeping requirement, and neither one is precedential even in its own jurisdiction.

The weight of published authority agrees with the EEOC that violations of 29 C.F.R. § 1602.14 warrant an adverse inference instruction even in the absence of bad faith. See Talavera v. Shah, 638 F.3d 303, 311-12 (D.C. Cir. 2011) (non-accidental document destruction consistent with “ʻtypical’ practice” but in violation of 29 C.F.R. § 1602.14 warrants adverse inference instruction, citing Hicks); Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 109 (2d Cir. 2001) (“where, as here, a party has violated an EEOC record-retention regulation, a violation of that regulation can amount to a breach of duty necessary to justify a spoliation inference in an employment discrimination action,” citing Hicks), superseded in part on non-relevant grounds by Fed. R. Civ. P. 37(e) (2015); Favors v. Fisher, 13 F.3d 1235, 1239 (8th Cir. 1994) (document destruction in violation of 29 C.F.R. § 1602.14 “entitled Favors to a presumption of pretext,” citing Hicks); cf. Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 661 n.7 (5th Cir. 1983) (EEOC’s allegation that employer destroyed documents in violation of 29 C.F.R. § 1602.14 is “important and troubling”); EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1195-96 (4th Cir. 1981) (because Title VII has “broad remedial purposes” and 29 C.F.R. § 1602.14 “was clearly designed to protect Title VII plaintiffs from an employer’s destruction of possibly damaging evidence,” employers are subject to “the normal factual inference of self-serving that arises from the destruction of evidence” even after the regulatory obligation to preserve records has expired).

Only the Seventh Circuit requires bad faith for an adverse inference instruction when an employer destroys documents in violation of 29 C.F.R.

§ 1602.14. Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 558 (7th Cir. 2001). Even the Seventh Circuit, however, has conflicting precedent. See Allen v. Seidman, 881 F.2d 375, 380-81 (7th Cir. 1989) (employer that destroyed documents in violation of 29 C.F.R. § 1602.14 “was not entitled to the benefit of the doubt when the doubt resulted from its own destruction of documents”).

3. JetStream did not preserve any contemporaneous record of

Knoke’s recommendations.

JetStream continues to claim that it did not destroy every relevant document, arguing that immediately after her November 5th meeting with Knoke, Cadorniga entered Knoke’s recommendations into an Excel spreadsheet “and then saved the spreadsheet on both her laptop and a flash drive.” Appellee Br. 5. Once she had created the spreadsheet, JetStream says, neither she nor Austin had any reason to keep their handwritten notes. Id.

Even if JetStream is right that the Excel spreadsheet was an adequate substitute for the original handwritten notes, which the EEOC does not concede, JetStream never turned over the November 5th document that Cadorniga allegedly saved in two places. Instead of producing the November 5th spreadsheet, which JetStream says identified all of the people whom Knoke had recommended, JetStream produced a spreadsheet dated November 10th. Appellant App. 444. JetStream claims that the November 10th spreadsheet is an exact replica of the November 5th document. However, JetStream conceded earlier in this litigation that its spreadsheet is “a living document” because it gets “updated” over time, and that it does not retain earlier versions unless they happen to have been emailed to someone. Appellant App. 231-32.

Assuming that the Round 1 list differed from Knoke’s recommendations, it would be logical for JetStream to “update” its records. The only way to know whether JetStream “updated” the spreadsheet would be to compare the November 10th document with the missing November 5th spreadsheet and/or the destroyed handwritten notes upon which it was based. JetStream’s document destruction made this comparison impossible.

C. The EEOC did not waive its argument that the district court should have excluded testimony.

JetStream disingenuously accuses the EEOC of waiver because the EEOC affirmatively mentioned the destroyed documents in its opening statement, questioned JetStream’s witnesses on cross-examination, and did not renew its exclusion request after the trial began. Appellee Br. 23-24. JetStream’s contention ignores the realities of this litigation.

The judge ruled before trial that she needed to hear the disputed evidence to assess prejudice. “I have to hear the evidence before I can make any sort of ruling on this,” the court said, “ just to see, one, where does it really fit in here, and whether there is real prejudice to the plaintiffs as a result of that.” Appellant App. 232 (emphasis added); see also id. at 234 (“I am going to have to hear the evidence at trial. There is just no way I can make a decision on this with the record that I have before me now.”). In other words, the court affirmatively told the parties that they should discuss the evidence, because otherwise it would be unable to rule on the pending sanctions motion.[4]

The EEOC reasonably sought to demonstrate prejudice by introducing evidence of JetStream’s spoliation – exactly as the district court told it to do. This scenario differs from the run of cases in which a litigant unsuccessfully seeks to exclude evidence and then waives its right to appeal by affirmatively introducing it. See Appellee Br. 23 (citing Ohler v. United States, 529 U.S. 753 (2000); Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 839 F.3d 1251 (10th Cir. 2016); and United States v. Chavez, 229 F.3d 946 (10th Cir. 2000)). In those cases, district courts grant the opposing party leave to introduce contested evidence but do not say that they “need” to hear it. The disappointed litigants who raise the evidence anyway do so at their own risk, not at the court’s direction. See Chavez, 229 F.3d at 952 (defendant “invited the error of which she complains”).

JetStream further criticizes the EEOC for not “sufficiently” arguing in its post-trial motion that the district court should have excluded this evidence, without explaining what more the EEOC should have said. The district court understood that the EEOC sought a new trial because of the “denial of sanctions,” not simply the denial of an adverse inference instruction. Opening Br. Add. 28. In any event, even if the EEOC’s briefing was somehow inadequate, failure to raise an issue in a Rule 59 motion does not constitute waiver. See Richardson v. Oldham, 12 F.3d 1373, 1377 (5th Cir. 1994) (“[A] Rule 59 motion is not a prerequisite to taking an appeal.”) (citing 6A James W. Moore & Jo D. Lucas, Moore’s Federal Practice

¶ 59.14 (2d ed. 1993)). The EEOC appealed from “all orders, decisions, and ruling[s] adverse to the plaintiff.” Appellant App. 344. By doing so, it preserved its argument that the district court should have excluded testimony regarding the destroyed documents.

D. The district court did not and could not use cross-examination as an “alternative” sanction.

The district court never intended for cross-examination to serve as a spoliation sanction. During the pretrial conference, the judge told the parties, “I don’t believe I can make a ruling on the motion with the limited evidence I have before me.” Appellant App. 222. The court added, “I don’t know the circumstances under which this all got destroyed, whether sanctions are something that should be imposed. I just don’t know enough about that background at this point.” Appellant App. 225-26. JetStream points to the court’s statement that “you do what you can on cross-examination of the witnesses,” Appellee Br. 25, but ignores the second part of that same sentence: “and then I will have to wait to hear the testimony before I can decide what sanction would be appropriate.” Appellant App. 225. And, as discussed supra at 17, the court ended the discussion of sanctions by stating, “[W]hat is apparent to me is that I have to hear the evidence before I can make any sort of ruling on this, just to see, one, where does it really fit in here, and whether there is real prejudice to the plaintiffs as a result of that.” Appellant App. 232 (emphasis added).

Even if the court had intended to use cross-examination as a spoliation sanction, which it plainly did not, cross-examination was not an available sanction in this case. JetStream oversimplifies by saying that “[t]his Court has recognized that allowing a party to question witnesses and make arguments about the significance of missing records can be an appropriate spoliation sanction.” Appellee Br. 24. Although this is true in certain circumstances, context matters.

The utility of cross-examination as a spoliation sanction depends on whether the spoliator wants to tell the jury about the missing evidence. If a defendant destroys evidence and has no intention of mentioning it, likely because it cannot portray the evidence in a favorable light, cross-examination would defeat the spoliator’s effort to pretend that the evidence never existed. See Henning, 530 F.3d at 1220 (defendant destroyed tapes and then sought to exclude evidence about spoliation; court ruled that plaintiff could not introduce spoliation evidence on relevance grounds but implied that if the evidence had been relevant, allowing plaintiff to introduce evidence of spoliation might have been an appropriate sanction); Dalcour v. City of Lakewood, 492 F. App’x 924, 937 (10th Cir. 2012) (defendant that failed to produce computer logs showing taser use did not intend to mention the logs to the jury; court held that allowing plaintiff to question witnesses about the missing evidence was appropriate spoliation sanction).

If, on the other hand, a defendant destroys evidence and then tells the jury that the missing evidence would have supported its defense, as JetStream did here, cross-examination becomes inadequate as a spoliation sanction. Instead, it becomes the normal course of trial litigation. A district court would likely commit reversible error by not allowing the plaintiff to cross-examine the defendant in such circumstances, even in the absence of a motion for sanctions. Characterizing such cross-examination as a type of sanction would be tantamount to denying sanctions altogether.

Conclusion

The district court abused its discretion by refusing to sanction JetStream for spoliation. Even though 29 C.F.R. § 1602.14 required JetStream to retain its hiring records for at least one year, JetStream destroyed all of the documents pertaining to its hiring decisions. The EEOC was severely prejudiced by this document destruction, as only the destroyed documents could have conclusively disproved JetStream’s explanation for not hiring the claimants.

For the reasons described here and in the EEOC’s opening brief, the EEOC respectfully urges this Court to reverse the final judgment and remand for a new trial.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Acting Assistant General Counsel

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[1] JetStream’s discussion of the EEOC’s skirt claim, Appellee Br. 9-10, is irrelevant to this appeal, as the EEOC abandoned that claim before trial.

[2] Some of the claimants testified that they understood from Norris’s speech at an AirServ employee meeting that he would offer a job to all AirServ employees. Appellee App. 350, 363, 368. JetStream misrepresents the record by saying that Abdulle gained this understanding during a one-on-one conversation. Compare Appellee Br. 7 with Appellee App. 368. But even if the claimants misunderstood Norris at the large meeting, Appellee Br. 7, that does not mean they had trouble understanding him when he spoke to them one-on-one.

[3] Inexplicably, JetStream asserts that “[t]he procedural posture of the instant case distinguishes it from Hicks and its progeny.” Appellee Br. 27. In fact, the procedural postures of Hicks and the instant case are identical.

[4] JetStream argues that there is no “definitive” ruling on the EEOC’s exclusion request because the district court “reserved ruling.” Appellee Br. 24. Although it is true that the court said it was deferring decision on the spoliations motion, its “need” to hear about the destroyed documents effectively denied the EEOC’s request to exclude evidence. See United States v. Perez-Herrera, 86 F.3d 161, 163 (10th Cir. 1996) (“Whether the court denied the motion, or deferred ruling on the motion, the effect is the same . . . . Accordingly, the district court’s deferral order

. . . is tantamount to a denial order . . . .”).