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United States District Court, Southern District of New York

July 24, 2003


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Plaintiffs Salvatore Golia, on behalf of decedent Frank Golia,*fn1 Luigi Marinucci, and Lucilla Bermudez (collectively, "plaintiffs") bring this employment discrimination action against their former employer, Leslie Fay Company, Inc. ("Leslie Fay" or "defendant"), alleging that Leslie Fay terminated them because of their age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621-34 (2000) ("ADEA"). Defendant now moves for summary judgment, arguing that plaintiffs have failed to raise genuine issues of material fact that would require a trial. Plaintiffs have also moved for summary judgment, on the grounds that defendant's failure to produce, and eventual destruction of, various relevant documents requires [ Page 2]

that defendant's answer be struck and judgment entered for plaintiffs. For the reasons discussed below, both motions will be denied.


The following paragraphs summarize the facts asserted by the parties, indicating the areas in which disputes exist.

Leslie Fay designs, manufactures, and sells women's apparel under a variety of brand names. (Def. Rule 56.1 Statement ¶ 2; Pls. Rule 56.1 Counterstatement ¶ 2.) Leslie Fay is comprised of several different divisions, each of which produces apparel under one or more brand names, and each of which primarily focuses on a particular style of apparel, such as evening wear or sportswear. (Pls. Rule 56.1 Counterstatement ¶¶ 2-3.) The employees involved in the design stage of the production process, such as designers and their assistants, work only for a particular division, conceptualizing and creating garment designs and samples for that division only. (Londono Dep. A at 61-62.) Once a sample of a newly designed garment has been created, patternmakers use the sample to create patterns of the garments in all of the different sizes in which it will be produced. Unlike designers, patternmakers are not associated exclusively with any particular division, working instead in Leslie Fay's general production department, and consequently may create patterns for any division's garments. (Def. Rule 56.1 Statement ¶¶ 13-14.)

All three plaintiffs were employed in Leslie Fay's production department until the summer of 2000. Frank Golia, aged 63 in 2000, and Luigi Marinucci, aged 62, were hired by Leslie Fay in 1998 as part of its acquisition of The Warren Group, a clothing manufacturer that owned the David Warren, Rimini, and Reggio brand names. Golia and Marinucci had worked as [ Page 3]

patternmakers for The Warren Group, and continued to do so for Leslie Fay. After the acquisition, each remained associated mainly with the divisions that produced clothing under The Warren Group's brand names. (Id. ¶¶ 28-31.) Thus, Golia made patterns primarily for the Reggio division, and Marinucci worked mostly with Rimini patterns, occasionally making Reggio patterns. (Id. ¶ 30-31; Anzaldi Dep. B at 169.) Lucilla Bermudez, aged 67 in 2000, also worked in the production department, although there is some dispute as to her exact function. According to defendant, Bermudez was not a patternmaker, even though she held that title, because she did not create new patterns from production samples. (Londono Dep. B at 71-72.) Instead, Bermudez allegedly performed less skilled "as-body" work, which consisted of copying or modifying existing patterns. (Id. at 68-71.) Bermudez disputes this characterization of her duties, however, stating that she was a patternmaker just like Golia and Marinucci, creating new patterns from production samples. (Bermudez Aff. ¶¶ 2-3.) Her performance evaluations appear to support her claim, as they consistently report her job title as "patternmaker," and a former supervisor wrote that she was a "skilled patternmaker." (Farber Aff. Ex. II.)

In July 1999, Concetta Anzaldi, Leslie Fay's Director of Technical Services, became plaintiffs' direct supervisor, assuming "primary responsibility for hiring, firing and supervising" most of Leslie Fay's patternmakers. (Def. Rule 56.1 Statement ¶¶ 26-27.) According to defendant, Anzaldi was immediately unhappy with Golia's and Marinucci's performance, and she would frequently have to correct or redo the patterns made by Golia and Marinucci. (Anzaldi Dep. A at 127-29.) She discussed these performance issues with Golia and Marinucci, as well as with her supervisors. (Id. at 107-11.) On July 20, 2000, Anzaldi and Suzanne Tully, Leslie Fay's Vice President of Human Resources, held separate meetings with Golia and Marinucci to discuss [ Page 4]

their performance. (Tully Dep. at 96-99.) Tully documented each meeting by preparing a memo summarizing Anzaldi's criticisms and asking each patternmaker to sign it. (Tully Aff. ¶ 12.) The two memos are identical in all respects, except for a brief paragraph in each that summarizes each patternmaker's reaction to the criticism. (Cohen Aff. Exs. R, S.) Thus, both memos state, "For quite some time Connie [Anzaldi] has not been pleased with [Golia's and Marinucci's] speed and in many instances quality of patterns. Connie indicated that in many instances it would be necessary to adjust or re-do patterns that [they] completed." (Id.) Both memos also noted that each patternmaker "appeared to be surprised," and disputed Anzaldi's assessment of his work. (Id.)

Sometime in 2000, Leslie Fay decided to discontinue the Reggio line of apparel because it had been unprofitable since 1998. Defendant asserts that discussion as to Reggio's future began in early 2000 (Ward Dep. at 22), and that the final decision to close the division was made in August 2000 (Def. Rule 56.1 Statement ¶ 47). The closing was not announced; rather, the division was "quietly phased out" over the subsequent months as the remainder of its inventory was sold. (Id. ¶¶ 47-48; Wishart Dep. at 33.) As plaintiffs point out, however, there is considerable conflicting testimony as to when the closure decision was made and approved, most of which suggests that the decision was not made until September 2000 at the earliest. (Wishart Dep. at 34; Tully Aff. ¶ 15; Ward Dep. at 34.)

As a result of the decision to close Reggio, Leslie Fay terminated Reggio's Vice President, Steven Behar, in December 2000, after he had overseen the sale of Reggio's remaining inventory, as well as Reggio's designer, Joey Chew, in September 2000. (Def. Rule 56.1 Statement ¶¶ 52-53.) Leslie Fay asserts that the Reggio closing also resulted in Chief Executive [ Page 5]

Officer John Ward's directing Dominick Felicetti, Vice President of Manufacturing, to discharge patternmakers in order to reduce the workforce. (Id. ¶ 55; Felicetti Dep. at 115.) Felicetti in turn instructed Anzaldi to fire an unspecified number of patternmakers based on their performance. (Felicetti Dep. at 116-18.) Thus, defendant asserts that Anzaldi was responsible for the decision to terminate Golia and Marinucci, and that she did so in order to reduce the workforce and because their performance had been deficient. (Id.; Def. Mem. at 10.) Once again, the testimony on this subject is contradictory, however, as Anzaldi herself disavows any advance knowledge of the firing decision, as well as of the reasons that Golia and Marinucci were fired (Anzaldi Dep. B at 53-56, 94), and Suzanne Tully testified, at least at one point in her deposition, that Anzaldi had no input in the firing decision (Tully Dep. at 326).*fn2 Regardless of who made the decision, however, Golia and Marinucci were informed of Leslie Fay's decision to fire them on August 22, 2000, by Tully and Felicetti. (Marinucci Dep. at 69-76.)

Defendant asserts that Anzaldi and Tully decided to fire Bermudez around the same time, August 2000, not because of any performance issues, but because the workforce could be further reduced by redistributing the as-body work that she performed to other patternmakers. (Tully Dep. at 134-35, 240-41; Def. Rule 56.1 Statement ¶ 75.) Anzaldi testified, however, that Bermudez was fired because her performance was poor, and that her duties were distributed to other employees after her termination. (Anzaldi Dep. A at 144-45.) Bermudez, for her part, testified that she was told that she was being fired because Reggio was closing, and there was [ Page 6]

consequently no work for her to do. (Bermudez Dep. at 120.) As with the other two plaintiffs, it is unclear who actually made the decision to fire Bermudez, as Tully states in her affidavit that Anzaldi made the decision and later informed Tully of it (Tully Aff. ¶ 21), while Anzaldi testified that she was not told why Bermudez was fired until after the decision was made, implying that she had nothing to do with the decisionmaking process (Anzaldi Dep. A at 144-45). Tully informed Bermudez of her termination on August 22, 2000. (Bermudez Dep. at 120.)

Thus, all three plaintiffs were terminated on August 22, allegedly as part of Leslie Fay's decision to downsize by closing the Reggio division and reducing the production staff. Around the same time, however, Leslie Fay hired or rehired several additional patternmakers who were considerably younger than plaintiffs. On June 26, Leslie Fay hired Katalin Votin, aged 54, as a patternmaker, to supplement the existing staff. (Farber Aff. Ex. N.) A month later, on July 24, Spiro Megaloudis, aged 34, was rehired after having been on temporary layoff for two months, as a replacement for another patternmaker who was fired for poor performance. (Id.) Finally, on August 21, the day before plaintiffs were fired, Leslie Fay rehired Josie Hong, aged 41, as a patternmaker, despite the fact that she had left her earlier stint as a Leslie Fay patternmaker on June 28 because "she could not handle the level of work." (Id.; id. Ex. V.) As the patternmakers' supervisor, Anzaldi had input into the decision to hire each of these employees (Anzaldi Dep. A at 177-79), although it is not clear whether she had sole responsibility for hiring decisions, as her testimony contradicts Tully's on this point as well (id.; Tully Aff. ¶ 9).


Summary judgment may only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no [ Page 7]

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(b). The party opposing summary judgment "may not rest upon mere allegations or denials," rather it must "set forth specific facts showing that there is a genuine issue for trial." Id. 56(e). To defeat a motion for summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[I]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Similarly, the non-moving party cannot defeat summary judgment by "offering purely conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), or by offering evidence in opposition that is merely speculative. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116-1117 (2d Cir. 1988). Accordingly, to defeat summary judgment, she must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984).

I. Defendant's Motion for Summary Judgment

Claims under the ADEA are analyzed under the same burden-shifting framework used for Title VII claims. Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000). Thus, we begin by asking whether the plaintiff has established the "minimal" prima facie case defined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). James v. New York Racing Assoc., 233 F.3d 149 (2d Cir. 2000). As the Second Circuit put it in James,

This requires no evidence of discrimination. It is satisfied by a showing of "membership in a protected class, qualification for the position, an adverse employment action," and preference for a person not of the protected class. [ Page 8]
Id. at 153-54. Meeting this test "creates a presumption that the employer unlawfully discriminated." Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc). This presumption "places the burden of production on the employer to proffer a nondiscriminatory reason for its action." James, 233 F.3d at 154. If the employer fails to present such a reason, plaintiff prevails.

"On the other hand, once the employer `articulates a non-discriminatory reason' for its actions, Fisher, 114 F.3d at 1336, the presumption completely `drops out of the picture.' St. Mary's [Honor Ctr. v. Hicks], 509 U.S. [502,] 510-11 [(1993)]." Id. At that point, "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id. Evidence casting doubt on the employer's proffered justification "may — or may not — be sufficient" to provide this support. Fisher, 114 F.3d at 1333. Thus, when the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff" Schnabel 232 F.3d at 90 (citing Reeves v. Sanderson Plumbings Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2106 (2000)).

The parties do not dispute that plaintiffs have satisfied the first three elements of the prima facie case, as all three plaintiffs were over 40 years old when they were terminated, and are therefore within the protected class created by the ADEA; all were qualified for the positions they held; and all, having been fired, were subject to an adverse employment action. Plaintiffs have also established that the terminations occurred under circumstances raising an inference of discrimination, as Leslie Fay hired several substantially younger patternmakers around the same [ Page 9]

time that it fired plaintiffs. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-13 (1996) (holding that employer's preference for "substantially younger" employees may raise an inference of age discrimination).

Defendant argues that various analyses of the production department's general employment practices negate any inference of discrimination, and has proffered evidence that the average age of patternmakers did not decrease significantly in 2000, that several other patternmakers in their sixties were hired by Leslie Fay as part of its acquisition of Liz Claiborne, and that a few older patternmakers were retained when plaintiffs were fired. (Def. Mem. at 15-18.) At this stage of the McDonnell Douglas inquiry, however, it is premature to consider defendant's evidence, as the initial burden rests solely on plaintiffs. Graham v. Long Island R.R., 230 F.3d 34, 41-42 (2d Cir. 2000). As plaintiffs's evidence is sufficient to raise an inference of discrimination, the burden of production shifts to defendant, and its statistical evidence may be considered at the third stage, in determining whether plaintiffs have presented sufficient evidence of pretext to infer discrimination.*fn3 [ Page 10]

Moreover, allowing defendants to defeat plaintiffs' case at this initial stage by proffering statistical evidence involving other employees would hinder the remedial purposes of the antidiscrimination laws. The fundamental issue in every discrimination case is whether plaintiffs themselves were fired at least in part because of their age, regardless of whether other employees suffered discrimination or not. The evidence that Leslie Fay did not fire every single sixty-year-old at the same time, or that it accepted a few sixty-year-old patternmakers as part of an acquisition, even if true, is hardly conclusive with respect to motivations behind plaintiffs' firing, and therefore cannot in itself definitively prove that age did not play a part in the decisions to terminate plaintiffs. See Graham, 230 F.3d at 43-44 ("Since Title VII's principal focus is on protecting individuals, rather than a protected class as a whole, an employer may not escape liability for discriminating against a given employee on the basis of race simply because it can prove it treated other members of the employee's group favorably."); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42 (1989) (plurality opinion) (holding that the "critical inquiry" in discrimination cases is whether the forbidden characteristic "was a factor in the employment decision at the moment it was made"). The burden on the plaintiffs at this stage is a "minimal" one, James, 233 F.3d at 154, and the consequence of meeting it is simply that the employer must proffer a legitimate, nondiscriminatory reason for its action. To truncate the inquiry at this stage based on arguments such as defendant's would undermine the McDonnell Douglas framework.

Thus, the burden of production shifts to Leslie Fay, and as it has proffered the legitimate, nondiscriminatory reasons of downsizing and poor performance for firing the plaintiffs (Def. Rule 56.1 Statement ¶¶ 55-56, 75), the determinative question is whether plaintiffs have presented sufficient evidence from which a jury could conclude that defendant's facially [ Page 11]

legitimate reasons are pretexts for age discrimination. While plaintiffs have proffered a plethora of theories as to how plaintiffs were treated less favorably than their younger colleagues, the evidence that defendant's proffered motivations are pretexts for age discrimination boils down to a few particularly persuasive points, which are more than sufficient for a jury to conclude that plaintiffs were discriminated against because of their age.*fn4

First, Leslie Fay hired a number of younger patternmakers around the same time that it fired plaintiffs, casting doubt on its assertion that the closing of the Reggio division necessitated reducing the workforce of patternmakers.*fn5 During the summer of 2000, even as executives were considering closing Reggio in order to cut back on costs, Leslie Fay hired one additional patternmaker, and hired two others as replacements, all of whom were considerably younger than plaintiffs.*fn6 As it is undisputed that the patternmakers did not work for particular divisions, but [ Page 12]

made patterns for all divisions as needed (Anzaldi Dep. A at 30), Leslie Fay's apparent efforts to replace resigning patternmakers, and to hire additional ones, directly contradicts its theory that the Reggio closing led it to reduce its production department as a whole (Def. Mem. at 9-10).

Second, conflicting testimony as to the timing of the Reggio closing in relation to plaintiffs' terminations could suggest that this justification is false. Felicetti testified that Ward instructed him to have patternmakers fired as a result of the decision to close Reggio. (Felicetti Dep. at 115.) While Leslie Fay asserts in its statement of undisputed facts that the closing decision was made in August 2000 (Def. Rule 56.1 Statement ¶ 47), the only testimony to that effect comes from Stella Londono, Anzaldi's assistant. (Londono Dep. B at 56.) The executives actually involved in the decision testified, however, that the decision was not made until mid-September. (Wishart Dep. at 33-34; Ward Dep. at 28.) If this version of events is credited, plaintiffs were fired well before the closing decision was made, casting further doubt on defendant's account of the impetus for firing the plaintiffs.

Third, Anzaldi made a number of comments during her deposition that a reasonable factfinder could construe as betraying discriminatory animus against those older than herself. When asked whether she had approached Golia and Marinucci to discuss her critique of their performance, she stated: "I know it is old people. . . . I think twice before I go to an old man. I don't mean to offend. I am very respective of old people because that's my background. . . . [W]hen I say `old man,' somebody who has more experience than me because he's been in the field longer than me." (Anzaldi Dep. A at 129-30.) Defendant argues that these comments [ Page 13]

should be taken to express respect for people who had more experience than Anzaldi because they were older and had been working longer. (Def. Reply at 11-12.) A reasonable factfinder could also infer, however, that these comments, even charitably interpreted, betray some discomfort on Anzaldi's part at having to exercise the responsibilities of a supervisor with respect to employees who were her elders. This inference could in turn lead a factfinder to conclude that discrimination played a role in the firings, as discomfort of this sort can easily lead to actual discrimination. Animus against a particular race or gender has often been expressed as discomfort in working with a person of that race or gender, because of certain characteristics attributed to members of that group. See, e.g., Hopkins, 490 U.S. at 236-37. As the ADEA, like Title VII, prohibits using age as even one factor in an adverse employment action, id. at 241-42, it is designed precisely to prevent a decisionmaker's discomfort with, or animus against, a particular class of people from contributing to that decisionmaker's overall negative impression of the class member. Thus, if Anzaldi was uncomfortable reprimanding her elders, a reasonable factfinder could infer that she might have allowed that discomfort to affect her opinion of them, and her decision concerning whom to fire.*fn7 [ Page 14]

Fourth, defendant's account of who was responsible for the decision to terminate the plaintiffs is riddled with contradictions. Defendant itself has put forward Anzaldi as the responsible decisionmaker in its statement of undisputed facts (Def. Rule 56.1 Statement ¶¶ 55-56, 75-76), and its briefs (Def. Mem. at 6 & n. 6). Anzaldi, however, appears unwilling to accept the responsibility for the termination decisions. In her deposition, Anzaldi repeatedly testified that she had no idea why all three plaintiffs were fired, and that in each instance, she was not told of the decision until after it had been made. (Anzaldi Dep. A at 53-56, 144-45.) Other executives, including the head of human resources, testified that Anzaldi was responsible for deciding which patternmakers to fire when Reggio was closed, and that Anzaldi decided to fire Bermudez on her own, later informing other supervisors about it. (Tully Dep. at 134-35, 238-42; Felicetti Dep. at 116-18.) Anzaldi's refusal to admit responsibility for the terminations could lead a reasonable factfinder either to reject defendant's entire account of the processes that led to plaintiffs' firings as completely inaccurate, or to conclude that, if Anzaldi was indeed the decisionmaker, she is falsely denying responsibility because she is conscious that some wrongful motivation contributed to her decisions. Either theory could lead a factfinder to conclude that Leslie Fay and/or Anzaldi is attempting to cover up a discriminatory motive, and that the assertedly legitimate reasons for firing plaintiffs are pretextual. See, e.g., Collette v. St. Luke's Roosevelt Hosp., No. 99 Civ. 4864 (GEL), 2002 WL 31159103, at *10 (S.D.N.Y. Sept. 26, 2002) (stating that "proof that the reasons given are false could support an inference that the employer must be covering up an illegal, discriminatory motive").

Finally, the adverse inference created by defendant's destruction of various documents relevant to plaintiffs' claims contributes to the evidence that defendant's proffered legitimate [ Page 15]

reasons are pretexts for discrimination.*fn8 See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 110-11 (2d Cir. 2001) (finding that inference of spoliation contributed to evidence that defendant's proffered nondiscriminatory reasons were pretextual). Should the jury choose to infer that the destroyed documents contained evidence unfavorable to Leslie Fay, that inference, and the fact that the circumstances surrounding the destruction are as muddled by conflicting testimony as the firing decisions, may support the conclusion that Leslie Fay discriminated against the plaintiffs.

Thus, plaintiffs have proffered ample evidence from which a reasonable factfinder could conclude that they were victims of age discrimination. The fact that Leslie Fay's executives and supervisors gave contradictory testimony on every key aspect of the decisionmaking process could suggest that its account of that process is false; moreover. Anzaldi's comments about "old people," her unwillingness to admit her role in the process, the grossly negligent way in which defendant handled relevant documents, and the contemporaneous hiring of younger patternmakers, taken together, could easily support the conclusion that Leslie Fay's asserted justifications for firing plaintiffs are simply pretexts for discrimination. Of course, defendant's statistical evidence and other arguments could lead a factfinder to reject plaintiffs' claims. But plaintiffs have presented more than enough evidence to require a trial.

II. Plaintiffs' Motion for Summary Judgment

Plaintiffs have also moved for summary judgment, arguing that Leslie Fay failed to produce and then destroyed various relevant documents, and that the most appropriate remedy for [ Page 16]

the alleged spoliation is to strike defendant's answer and enter judgment for plaintiffs. In the alternative, they seek the lesser sanctions of precluding defendant from presenting evidence at trial as to plaintiffs' alleged performance problems, or allowing the jury to draw an adverse inference from the destruction of the documents. (Pl. Mot. at 1-2.) Upon careful consideration, the Court concludes that the adverse inference sanction is the most appropriate, and will adequately protect plaintiffs' opportunity to litigate their claims, while penalizing defendant's grossly negligent conduct. Thus, plaintiffs' motion for summary judgment will be denied.

Plaintiffs' claim of spoliation arises from Anzaldi's destruction of her notes on the performance deficiencies of each patternmaker, and of worksheets known as cutter musts and adoption sheets, which reflect which patternmaker worked on each pattern. (Pls. Mem. at 2-3.) Plaintiffs instituted this suit on February 13, 2001, and served initial document demands and interrogatories in June. (Olk Aff. ¶¶ 4-5.) As Leslie Fay's primary liaison with its counsel, Suzanne Tully was responsible for ensuring that Leslie Fay's employees complied with their discovery obligations. (Id. ¶ 9; Tully Dep. at 365.) Tully's testimony about her efforts in this regard is confusing and contradictory. She initially testified at her deposition that she had never asked any individual employees, including Anzaldi, if they had documents responsive to plaintiffs' discovery requests. (Tully Dep. at 365.) She subsequently corrected her deposition testimony quite extensively, altering the substance of her initial answer by stating that she had asked Anzaldi and others if they had any relevant documents when the lawsuit was first filed, but had not inquired again in response to specific document requests. (Olk. Aff. Ex. R at 1.) In opposing this motion, defendant has presented yet a third version, submitting an affidavit in which Tully asserts that she asked various employees whether they had any relevant documents [ Page 17]

in response to each of plaintiffs' document requests. (Tully Supp. Aff. ¶ 4.) In contrast, Anzaldi testified that no one had ever asked her whether she had any relevant documents. (Anzaldi Dep. A at 42.)

Whatever actually transpired as defendant prepared its responses to plaintiffs' discovery requests, it is undisputed that two categories of documents possessed by Anzaldi were never produced. The first category consists of Anzaldi's notes on each patternmaker's performance, including whether their work had to be corrected, how quickly they worked, and whether she liked their results. (Id. at 38.) The second category consists of cutter musts and adoption sheets, which record which patternmaker worked on each pattern, and whether any corrections to the pattern were later necessary. (Id. at 37.) Leslie Fay did not maintain copies of any of these documents (id. at 40), and as the performance notes were Anzaldi's "personal" notes (id. at 100), no one but Anzaldi had any knowledge of their contents. When Anzaldi herself was fired in August 2002, she threw out all of the documents when she returned to her office after having been informed of her termination. (Id. at 45.)

In order to establish that sanctions for spoliation of evidence are warranted, plaintiffs must establish (1) that defendant had an obligation to preserve the evidence; (2) that defendant acted culpably in destroying the evidence; and (3) that the evidence would have been relevant to plaintiffs' case, in that a reasonable jury could conclude that the evidence would have been favorable to plaintiffs. Residential Funding Corp. v. Degeorge Funding Corp., 306 F.3d 99, 107 (2d Cir. 2002). Once plaintiff has established these elements, the Court must decide what sanction to impose. While the Court has wide discretion in determining the sanction, Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 267 (2d Cir. 1999), it must give careful [ Page 18]

consideration to the facts particular to the case, keeping in mind that the fundamental purpose of any sanction is to protect the innocent party's opportunity to litigate by placing the risk that the evidence would have been unfavorable on the party whose fault led to the evidence's unavailability. Id.; Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998).

As an initial matter, defendant argues that it is not responsible for Anzaldi's destruction of the documents because Anzaldi was a "former employee" of Leslie Fay when she destroyed them, as she had just found out that she was being fired. (Def. Opp. at 5-7.) This argument is without merit. Regardless of Anzaldi's exact employment status at the time that she destroyed the documents, these documents should have been produced long before Anzaldi's firing, and Anzaldi and Tully, both employees at the time, failed to do so. Since failure to produce relevant documents is itself an abuse of discovery warranting the same sanctions as spoliation, Residential Funding Corp., 306 F.3d at 107, Leslie Fay could be liable for its culpable failure to produce the documents, even had Anzaldi not destroyed them. Moreover, the documents would not have been destroyed at all had Leslie Fay fulfilled its discovery obligations; therefore, Leslie Fay may not now argue that it has no responsibility for the unavailability of the documents.

Plaintiffs have established that defendant had an obligation to preserve the evidence, as Leslie Fay clearly knew or should have known that the documents would be relevant to the lawsuit. Barsoum v. NYC Housing Auth., 202 F.R.D. 396, 400 (S.D.N.Y. 2001). Both Anzaldi and Tully personally knew of the lawsuit from its early stages (Anzaldi Dep. A at 45-46; Tully Dep. at 351), and plaintiffs' early documents requests, which asked for all documents relating to plaintiffs' job performance and the work that they did (Olk Aff. ¶ 7 & Ex. G), provided notice that the destroyed documents would be relevant to the suit. This notice triggered the duty to [ Page 19]

preserve the documents for production to plaintiffs. Barsoum, 202 F.R.D. at 400.

Plaintiffs have also established that Leslie Fay destroyed the documents with the requisite degree of fault necessary to warrant sanctions. Spoliation may be inferred where the party has destroyed the documents intentionally or negligently despite a duty to retain them; thus, contrary to defendant's arguments (Def. Mem. at 12-13), specific intent to thwart the litigation process is not necessary. Byrnie, 243 F.3d at 109. At the very least, Leslie Fay was grossly negligent in allowing the documents to be destroyed. From the institution of the lawsuit, Tully and Anzaldi ignored their duty to fulfill Leslie Fay's discovery obligations in a manner that reflects extremely poorly on Leslie Fay's conduct of this litigation. Tully's multiple versions of her response to plaintiffs' discovery requests makes her testimony on the matter incredible, and her attempts to present her own conduct in the best possible light are not, in the end, helpful to Leslie Fay. Even if the Court were to view Tully's testimony in the most charitable light possible by crediting her supplemental affidavit, in which she states that she asked Anzaldi for relevant documents in response to plaintiffs' multiple document requests, and Anzaldi repeatedly replied that she had none (Tully Supp. Aff. ¶ 4), the fault that the documents were never produced lies squarely with Leslie Fay's employees. Given that far less egregious conduct in failing to produce documents has been considered grossly negligent, Barsoum, 202 F.R.D. at 400, Anzaldi's and Tully's neglect of discovery was, at the least, grossly negligent. As a direct result of this fault, Anzaldi had the opportunity to destroy all of the documents. It is undisputed that she did so intentionally, despite knowing of the lawsuit and Leslie Fay's discovery obligations, as she testified that she threw them out because she was angry at her termination: "I was notified there was a lawsuit. . . . I throw them when I left. . . . I throw everything out. . . . I was upset for myself and I wanted to [ Page 20]

clean up for myself." (Anzaldi Dep. A at 45-46.) Thus, Leslie Fay is highly culpable in the destruction of the documents, as its employees have conducted themselves in a manner that suggests disdain for the litigation process and for plaintiffs' rights.

Finally, plaintiffs have established that the documents were relevant, by proffering sufficient evidence from which a jury could conclude that the documents contained evidence that would have been favorable to their claims. Residential Funding Corp., 306 F.3d at 108-09. As courts must not "hold[] the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed evidence," because doing so "would allow parties who have . . . destroyed evidence to profit from that destruction," Kronisch, 150 F.3d at 128, plaintiffs may establish relevance by showing that the evidence in the case as a whole suggests that the documents would have helped plaintiffs support their claims, Byrnie, 243 F.3d at 109-10. The documents at issue here would have been probative of two central disputed issues: Anzaldi's assessment of plaintiffs' performance, and what work plaintiffs were doing at the time that they were fired. Anzaldi's notes on her view of plaintiffs' work, made around the time that they were fired, would have provided far more details on plaintiffs' alleged deficiencies than Anzaldi's testimony, two years later, or the perfunctory memos written by Tully that provide no individualized critiques of Golia and Marinucci. Given Anzaldi's denial of responsibility for firing plaintiffs, and her disavowal of any knowledge as to why they were fired, her contemporaneous notes on plaintiffs could provide valuable insight into defendant's asserted nondiscriminatory reasons for firing plaintiffs, and potential material on which to cross-examine Anzaldi. See id. (stating that destroyed notes would provide more detail into asserted reasons for not hiring plaintiff). The cutter musts and adoption sheets are also highly relevant, as defendant [ Page 21]

claims that Bermudez did not work as a full patternmaker, despite her testimony and documentary evidence to the contrary. A jury could conclude that all of this evidence would have been favorable to plaintiffs, given that Tully, Anzaldi, and other key executives have given contradictory testimony on crucial issues, including the process by which the firing decisions were made, the reasons for firing plaintiffs, and the reasons that these documents were never produced. These contradictions not only provide evidence that defendant's asserted reasons are pretextual, but also could indicate a pattern of evasion and equivocation by the very executives who are in a position to know what actually transpired, increasing the probability that the documents could have provided insight into the actual reasons behind the firings, and Anzaldi's role in the decisions. Id. at 110.

Having determined that the circumstances warrant an inference of spoliation, the Court must consider the appropriate sanction. Plaintiffs urge that the Court should grant summary judgment for them, but dismissal of a party's case is a "harsh" sanction, to be used in "extreme circumstances" and only upon a finding of willfulness or bad faith. Jones v. Niagara Frontier Trans. Auth., 836 F.2d 731, 734-35 (2d Cir. 1987): see also West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). It is therefore not warranted here. While Leslie Fay's conduct was undoubtedly egregious and grossly negligent, there is no evidence that Tully and Anzaldi failed to produce the documents, and eventually destroyed them, expressly to keep plaintiffs from seeing them, or to thwart the litigation process. In addition, defendant's misconduct has not robbed plaintiffs of the only evidence on which they could base their case; as indicated by the voluminous exhibits submitted in connection with defendant's summary judgment motion and the discussion above, plaintiffs have constructed a strong case as to pretext [ Page 22]

even without the destroyed evidence. Cf. Beers v. General Motors Corp., No. 97 Civ. 482 (NPM), 1999 WL 325378 (N.D.N.Y. 1999) (dismissing plaintiff's complaint where his spoliation of evidence had robbed defendant of the ability to defend against the action). For much the same reasons, the alternative sanction of precluding defendant from presenting any evidence of plaintiffs' alleged performance problems is also inappropriate, as the quality of plaintiffs' performance forms the crux of Leslie Fay's defense, so imposing this sanction would be equivalent to granting summary judgment for plaintiffs. Henkel Corp. v. Polyglass USA, Inc., 194 F.R.D. 454, 457 (E.D.N.Y. 2000).

The most appropriate sanction is to allow the jury to draw an adverse inference against defendant after hearing evidence of the destruction of the documents. This sanction, although less drastic than the others proposed by plaintiff, is still a serious one, serving the functions of placing the "risk of an erroneous judgment on the party that wrongfully created the risk," and "restoring the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence." Kronisch, 150 F.3d at 126 (internal quotation marks and citations omitted). Allowing the jury to hear evidence as to the documents and how they came to be destroyed, and to draw an inference that the documents would have contained evidence favorable to plaintiffs, will adequately remedy the prejudice to plaintiffs, especially since Tully's multiple versions of her conduct of discovery and Anzaldi's candid admission that she intentionally destroyed all the documents will provide fertile ground for plaintiffs to explore at trial. The Court is prepared to give the jury a strongly worded instruction that they may, if they choose, infer that the destroyed documents contained evidence unfavorable to defendant, and that they may apply this inference, as well as the circumstances surrounding the destruction, against [ Page 23]

defendant in determining the merits of the case. See Saul v. Tivoli Systems, Inc., No. 97 Civ. 2386 (CD) (MHD), 2001 U.S. Dist. LEXIS 9873, at *55 (S.D.N.Y. July 16, 2001).*fn9

A defendant's failure to abide by its discovery obligations is particularly troubling in a discrimination case. Broad discovery is vital to a plaintiff's ability to prove her claim of discriminatory conduct, as discrimination is usually covert and relatively easy to disguise with pretextual reasons. In order to allow plaintiffs the opportunity to uncover potential discrimination, courts must be especially vigilant to ensure that employers cooperate fully and openly with the discovery process. Thus, an employer that shirks its discovery obligations and allows relevant documents to be destroyed — whether through bad faith or mere negligence — must be made to do so at its own risk, not only to foster the broad discovery provided for in the Federal Rules of Civil Procedure, but also to uphold the aims of the federal antidiscrimination laws. The Court is confident, however, that the jury will be fully equipped to evaluate the evidence in light of defendant's behavior, to draw the appropriate inferences, and to decide the case fairly. [ Page 24]


For the reasons set forth above, defendant's and plaintiff's motions for summary judgment are denied.

In accordance with the Court's Individual Practices in Civil Cases, a joint pretrial order is due within 30 days of the filing of this opinion, unless the parties notify chambers within that period either that the case has been settled or that they agree that the case should be referred for mediation or for a settlement conference before a magistrate judge.


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