Last month, the Ohio Court of Appeals ruled that an employer’s failure to preserve evidence of its hiring/promotion process (including rating sheets, job applications, interview notes, etc.) which began less than two years before the initiation of litigation could give the disappointed plaintiff a separate claim for spoliation of evidence. This was particularly true when the employer was a government entity required by the Ohio Public Records laws to preserve such records for a longer period than required of private sector employers. Mitchell v. Lemmie, 2007-Ohio-5757 (10/24/07).
In that case, the plaintiff was, without explanation, denied a promotion to divisional manager even though he had the recommendations of his superiors in mid-1999 and even after he was the only remaining candidate from the short list recommended to the city manager in late 1999. After he was passed over twice for the promotion, he ultimately retired and then filed suit in December 2001 within two years of the denial of the promotion after an African-American female with arguably lesser qualifications was hired for the position in a non-competitive process. The original lawsuit was voluntarily dismissed by the plaintiff in early 2004 and then refiled in April 2004 with discovery requests. In these and later discovery requests, he sought information about all of the candidates which had applied and been considered for the position through four different searches to fill the position. He also sought information about the City Manager’s computer outlook calendar. However, the employer denied that these records had been preserved.
The plaintiff pursued many motions to compel discovery and pointed out that the employer had maintained the same sort of records for another job search conducted during the same time period, but claimed that it could not find the relevant documentation involving the position he had sought. The employer contended that it had produced all relevant documentation, but then produced new evidence only a week before trial that contradicted prior deposition testimony by a witness. When the employer failed to produce the requested documents, the plaintiff moved to amend his complaint to add a claim for spoliation of evidence (since the missing evidence could support his claims of discrimination).
Ohio recognizes a claim for spoliation of evidence, which is based on statutory and common laws prohibiting willful or negligent destruction of evidence. The employer argued that it had no duty to maintain any of the requested documents after filling the divisional manager position. However, a duty arises once litigation becomes probable or has actually been initiated. (In addition, various employment statutes require the preservation of these types of records for one to two years after they are created and/or the position is filled). Fatal for the defendant employer’s explanation is the fact that its explanation was not consistent with Ohio’s public records laws.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.
