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Regina Dunn and Patrice Machikas v. Mercedes Benz of Ft. Washington

February 9, 2012

REGINA DUNN AND PATRICE MACHIKAS, PLAINTIFFS,
v.
MERCEDES BENZ OF FT. WASHINGTON, INC. ET AL., DEFENDANTS.



The opinion of the court was delivered by: Yohn, J.

MEMORANDUM

Plaintiffs, Regina Dunn and Patrice Machikas, former employees of Mercedes-Benz of Fort Washington, Inc., and Condor Automotive Group, LLC (collectively, the "corporate defendants"), filed this action against the corporate defendants, as well as Stephen Silverio and Vincent Petruzziello, the chief operating officer and chief financial officer, respectively, of the corporate defendants, alleging sex discrimination, sexual harassment, a hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Pennsylvania Human Relations Act (the "PHRA"), 43 Pa. Stat. Ann. §§ 951 et seq.

Dunn has now filed a motion for partial summary judgment against the corporate defendants as to her claims that the corporate defendants terminated her employment because of her sex and in retaliation for her having complained of discrimination, sexual harassment, and a hostile work environment, in violation of Title VII and the PHRA. She contends that she is entitled to summary judgment on these claims because she has established a prima facie case of discrimination (and retaliation) as a matter of law and because, as a sanction for the corporate defendants' alleged spoliation of evidence, the corporate defendants should be precluded from asserting a legitimate, nondiscriminatory (or nonretaliatory) reason for her termination. Because I cannot conclude that such a sanction is justified in this case, I will deny her motion for partial summary judgment.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY*fn1

Dunn began working as the general sales manager at the corporate defendants' Fort Washington Mercedes-Benz dealership on October 3, 2007. (Pl. Regina Dunn's Statement of Undisputed Facts ("Dunn's Facts") ¶ 2.)

In a letter dated August 5, 2008, to Carlos Hoz de Vila, the corporate defendants' chief executive officer, Dunn complained of discrimination, sexual harassment, and a hostile and abusive work environment.*fn2 (See Pl. Regina Dunn's Mot. for Partial Summ. J. ("Dunn's Mot. for Summ. J.") Ex. H.)

Two months later, on October 6, 2008, the corporate defendants terminated Joe Esposito, the general manager of the Fort Washington dealership and the person to whom Dunn directly reported, and hired Paul Mackenzie in his place. (Dunn's Facts ¶¶ 3--5.) Soon after Mackenzie assumed the role of general manager, he decided to terminate Dunn, and he sought permission from Silverio to do so. (Dunn's Facts ¶¶ 32--34; Defs.' Counterstatement of Facts ¶¶ 32--34.) After a meeting with Hoz de Vila, Petruzziello, and Silverio, during which legal counsel was consulted in light of Dunn's earlier complaint, Mackenzie was given permission to terminate Dunn (Defs.' Counterstatement of Facts ¶ 34), and Dunn was terminated on November 4, 2008 (Dunn's Facts ¶ 20).

Dunn filed a complaint with the Pennsylvania Human Relations Commission (the "PHRC"), and cross-filed it with the Equal Employment Opportunity Commission (the "EEOC"), on December 23, 2008, complaining of discrimination and retaliation by defendants.*fn3 (Compl. ¶ 12, Ex. 1.) Defendants were served by the PHRC with a copy of the complaint on January 16, 2009. (Dunn's Facts ¶ 42.)

After receiving a right-to-sue notice from the EEOC, Dunn filed this action on April 14, 2010, alleging sex discrimination, sexual harassment, a hostile and abusive work environment, and retaliation in violation of Title VII and the PHRA.

During discovery, Dunn's counsel deposed Mackenzie, who defendants asserted was "the decision maker" regarding Dunn's termination (Dunn's Mot. for Summ. J. Ex. O ¶ 17). McKenzie testified that, at the time of Dunn's termination, he had not prepared any documentation outlining the reasons for terminating her. (Mem. of Law in Opp'n to Pl. Regina Dunn's Mot. for Partial Summ. J. ("Defs.' Br.") Ex. H at 140:11--16; Dunn's Mot. for Summ. J. Ex. F at 190:13--191:11.) But he testified that, about a year after Dunn was terminated, he had prepared a document entitled "Regina Dunn and Andrew Mogilyansky,"*fn4 in which he summarized some of his interactions with Dunn and the events leading up to her termination. (See Dunn's Mot. for Summ. J. Ex. F at 7:10--8:18, 166:23--167:22; id. Ex. R.) He explained that he had prepared this document on his computer at work (id. Ex. F at 14:19--21) and that in preparing this document he had relied on his memory as well as contemporaneous notes of work-related events that he kept on his work computer in a file called "Miscellaneous" (id. at 10:11--12:18, 226:5--228:6).

In the course of discovery, the corporate defendants produced the document entitled "Regina Dunn and Andrew Mogilyansky," which Mackenzie had e-mailed, along with other documents, to human resources for inclusion in his "employee record." (See Dunn's Mot. for Summ. J. Ex. Q no. 61; id. Ex. S.) And in response to a subpoena, Mackenzie also produced this document. (See id. Ex. F at 6:11--8:12.) He testified that he obtained the document from his personal home computer-he explained that although he had prepared the document at work, he had e-mailed a copy to himself at home. (Id. at 8:19--9:4, 14:19--15:1.) But neither Mackenzie nor the corporate defendants have produced a copy of the notes that Mackenzie referred to in his deposition. Mackenzie testified that he thought that he had also e-mailed a copy of his notes to himself at home but that he was unable to find the notes on his home computer. (Id. at 12:19--13:3.) He speculated that he might have deleted them from his personal computer to make room for other files or that he might have been mistaken about having sent the notes to himself.

(Id. at 13:4--14:13.) Mackenzie further testified that in March 2010, about ten days after he was fired by the corporate defendants, he sought to retrieve some personal information that he had left on his work computer but was told by James Bell, the corporate defendants' information technology ("IT") manager, that there was "nothing left" on his computer at work-which he understood to mean that his hard drive had been erased. (Id. at 15:6--16:22.) At his deposition, however, Bell did not recall having such a conversation with Mackenzie. (Defs.' Br. Ex. I at 72:2--14.) And when asked whether he had deleted information from Mackenzie's hard drive or checked to see if any information remained on the hard drive, he responded, "Not to my knowledge." (Id. at 71:23--72:20.) He similarly testified that he could not remember whether Mackenzie's e-mail account was deleted after Mackenzie was terminated. He testified that "[i]t's quite possible that account might still be there" and that he did not recall anyone asking him to check whether Mackenzie's account still existed. (Id. at 69:13--71:12.)

After discovery, Dunn filed this motion for partial summary judgment against the corporate defendants as to her claims of discrimination and retaliation, arguing that the corporate defendants intentionally destroyed the documents on Mackenzie's work computer, including the "Miscellaneous" file containing his notes, and that as a sanction for such spoliation of evidence, the corporate defendants should be precluded from asserting a legitimate, nondiscriminatory (or nonretaliatory) reason for her termination.

Although the corporate defendants reportedly "thought that they had secured and produced all documents responsive to Plaintiffs' requests and supplemental requests through discovery," in light of Bell's deposition testimony, they "looked again" to determine whether Mackenzie's e-mail account had been retained. (Defs.' Answer in Opp'n to Pls.' Mot. to Compel Produc. of All Docs. Contained in the "My Documents" Directory for Paul Mackenzie ("Defs.' Opp'n to Mot. to Compel") ¶¶ 4--5.) In the course of looking for the e-mail account, they apparently located Mackenzie's "My Documents" folder (id. ¶ 5), and in their brief opposing Dunn's motion for summary judgment, the corporate defendants asserted that "[a]s of the writing of this brief, a file entitled P Mackenzie My Documents has been ...


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