A Maryland federal district court’s decision underscores the need to preserve evidence once notified of a potential lawsuit and the significant consequences for not doing so.

In Eller v. Prince George’s Cty. Pub. Sch., 2020 U.S. Dist. LEXIS 234367 (D. Md. Dec. 11, 2020), an employment discrimination case, the court found the school district’s failure to keep disciplinary records on harassment of a transgender teacher after it was aware of the teacher’s Equal Employment Opportunity Commission (EEOC) charge was sanctionable.

In 2011, the plaintiff, a middle school teacher, informed her school principal she would be transitioning from male to female. When the teacher began wearing traditionally feminine clothing, she was allegedly harassed by staff and students. Over the next few years, the teacher transferred to several different schools in the district to escape the alleged harassment, but the harassment continued. In 2017, the teacher resigned because of the alleged harassment.

During her employment, the teacher repeatedly complained about harassment, including by submitting complaints to the district on student discipline referral forms (PS-74 forms) and by filing a June 2015 charge of discrimination with the EEOC. The school district received notice of the EEOC charge in July 2015. In 2017, the EEOC found reasonable cause to believe the teacher had been subjected to harassment and retaliation.

In 2018, the teacher filed a lawsuit against the school district. At the close of discovery, the teacher moved for sanctions against the school district, claiming it had destroyed or lost the PS-74 forms and relevant surveillance camera footage and emails.

The court found that sanctions for spoliation of evidence were appropriate because: (1) the school district’s duty to preserve evidence arose when it first received notice of the EEOC charge in July 2015; (2) the PS-74 forms related to student disciplinary matters, but no longer existed and were “spoliated”; (3) the school district failed to take reasonable steps “to even attempt to ensure” the PS-74 forms were preserved; and (4) the failure to preserve the PS-74 forms was “grossly negligent” because the school district had an official policy regarding the preservation of PS-74 forms. However, the court did not find the school district acted in bad faith because there was no evidence it intentionally destroyed the missing PS-74s. The court also rejected the teacher’s motion for sanctions regarding missing surveillance camera footage or emails because the teacher never notified the school that camera footage might be relevant and there was no evidence any emails were destroyed after July 2015.

As a sanction for spoliation of evidence, the court ordered that the school district not be allowed to offer any additional evidence of the contents of the missing PS-74 forms at trial and the presiding judge, if appropriate, should inform the jury the PS-74 forms were lost or destroyed by the school district. The court denied the teacher’s request for attorney’s fees (among other requests) because she knew about the missing forms for over a year before filing her motion.

Employers can face a variety of sanctions, including case-dispositive sanctions, for failing to preserve evidence. Employers must take reasonable steps to preserve relevant evidence once they are on notice of a potential claim, including after receiving notice of an EEOC charge. This may involve preserving a broad range of potentially relevant documents, including, but not limited to, employee disciplinary records.

Please contact a Jackson Lewis attorney with any questions.