Rose Ford v. John Potter , 354 F. App'x 28 ( 2009 )


Menu:
  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    November 11, 2009
    No. 09-10160                      Charles R. Fulbruge III
    Summary Calendar                            Clerk
    ROSE M. FORD
    Plaintiff – Appellant
    v.
    JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL
    SERVICE
    Defendant – Appellee
    Appeal from the United States District Court
    For the Northern District of Texas
    USDC No. 3:07-CV-1039
    Before GARZA, CLEMENT, and OWEN, Circuit Judges.
    PER CURIAM:*
    Plaintiff-Appellant Rose M. Ford (“Ford”) appeals the district court’s entry
    of judgment against her after a bench trial on her claim for Title VII age
    discrimination, and the district court’s denial of her motion for an adverse
    inference based on spoliation of evidence. We affirm.
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    No. 09-10160
    FACTS AND PROCEEDINGS
    In May 2002, the United States Postal Service (“USPS”) hired Ford, then
    aged 39, for a one-year Not-To-Exceed (“NTE”) attorney position at its Southwest
    Law Office in Dallas (“the office”).1 Doris Godinez-Phillips (“Godinez-Phillips”),
    Managing Counsel for the office, made the decision to hire her, subject to
    approval from USPS headquarters. Ford resigned shortly after being hired but
    was asked not to leave by Godinez-Phillips, and her NTE contract was renewed
    when it expired.
    In May 2003, then aged 40, Ford applied for a career position with the
    office. A fellow NTE attorney who was a decade younger was selected for the
    position. After her interview, Ford was given feedback by Godinez-Phillips and
    another member of the committee that reviewed the applicants. Ford does not
    challenge this employment decision.
    In July of that year, Ford again applied for a career attorney position at
    the Dallas Law Office and was selected for an interview. Chizoma Ihekere
    (“Ihekere”), who had turned 30 earlier in 2003 and who had joined the Dallas
    Law Office as an NTE attorney in May 2003, also applied for the position.
    Ihekere was not initially selected for an interview but was added after Godinez-
    Phillips instructed the reviewing committee to forward the names of additional
    applicants for interviews. Ihekere was selected for the position along with
    Jeffrey Weeks (“Weeks”) and Paul Wolf (“Wolf”), both over age 40. Ford’s
    interview did not go well, and Godinez-Phillips later told her that Ihekere was
    “young and energetic” but denied that Ihekere was selected, or Ford rejected,
    because of their age. Ford resigned on September 25, 2003. She alleges that her
    age was a motivating factor in the decision not to hire her as a career attorney.
    1
    A “Not-To-Exceed” position is a term position that comes with little or none of the
    employment benefits given to permanent federal employees.
    2
    No. 09-10160
    A hearing was held before an EEOC officer in 2005. Ford was awarded no
    relief and she appealed the agency decision to the Office of Federal Operations
    in 2006. The agency decision was upheld and Ford filed suit in the Northern
    District of Texas. The district court denied USPS’s motion for summary
    judgment and a two-day bench trial was held in December 2008. At the
    conclusion of the evidence, Ford moved for an inference of spoliation of evidence,
    based on the failure of the government to produce notes that a reviewing
    committee member made during Ihekere’s interview. After trial, the district
    court issued a memorandum opinion finding in favor of USPS and dismissing
    Ford’s suit with prejudice. The district court also denied the motion for an
    adverse inference. Ford now appeals, arguing that the district court (1) erred in
    finding that Ford had not presented direct evidence of discrimination, (2) erred
    in finding that USPS had presented a legitimate non-discriminatory reason for
    not selecting Ford, and (3) abused its discretion in denying the motion for an
    adverse inference.
    STANDARD OF REVIEW
    “The standard of review for a bench trial is well established: findings of
    fact are reviewed for clear error and legal issues are reviewed de novo.” Bd. of
    Trs. New Orleans Employers Intern. Longshoremen’s Ass’n v. Gabriel, Roeder,
    Smith & Co., 
    529 F.3d 506
    , 509 (5th Cir. 2008) (quoting Water Craft Mgmt. LLC
    v. Mercury Marine, 
    457 F.3d 484
    , 488 (5th Cir. 2006)). “A finding is clearly
    erroneous if it is without substantial evidence to support it, the court
    misinterpreted the effect of the evidence, or this court is convinced that the
    findings are against the preponderance of credible testimony.” 
    Id.
     Reversal is
    warranted only if the reviewing court is left with “a definite and firm conviction
    that a mistake has been committed.” 
    Id.
     (quotation omitted). Under the Federal
    Rules, a “reviewing court must give due regard to the trial court’s opportunity
    to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). Accordingly, “[t]he
    3
    No. 09-10160
    burden of showing that the findings of the district court are clearly erroneous is
    heavier if the credibility of witnesses is a factor in the trial court’s decision.”
    Dunbar Med. Sys. Inc. v. Gammex Inc., 
    216 F.3d 441
    , 453 (5th Cir. 2000)
    (quotation omitted).
    DISCUSSION
    Before proceeding, we must determine what evidence we will consider in
    our analysis of the district court’s memorandum opinion. Generally, we will not
    enlarge the record on appeal with evidence not before the district court. Trinity
    Indus., Inc. v. Martin, 
    963 F.2d 795
    , 799 (5th Cir. 1992) (citing Kemlon Prods.
    and Dev. Co. v. United States, 
    646 F.2d 223
    , 224 (5th Cir. 1981), cert. denied, 
    454 U.S. 863
     (1981)). When reviewing the findings of a district court we will
    disregard evidence that it did not consider at trial. See Kirshner v. Uniden Corp.
    of America, 
    842 F.2d 1074
    , 1077 (9th Cir. 1988) (declining to consider materials
    not considered by the district court); United States v. Drefke, 
    707 F.2d 978
    , 983
    (8th Cir. 1983) (same); Stearns v. Hertz Corp., 
    326 F.2d 405
    , 408 (8th Cir. 1964)
    (declining to consider affidavit presented for first time on appeal); Watson v.
    Rhode Island Ins. Co., 
    196 F.2d 254
    , 255-56 (5th Cir. 1952) (striking affidavit
    presented for first time on appeal). Some of the materials referenced in
    appellant’s brief are part of the record on appeal as they were attached in
    support of various pre-trial motions. But they were not admitted into evidence
    at trial, and were not considered by the district court in issuing its memorandum
    opinion. Accordingly, we will limit our analysis to the evidence that was before
    the district court.2
    2
    Only eight exhibits were admitted into evidence at trial. See Bench Tr. Tran., at 5.
    Ford introduced her resume, her W-2s, and documents relating to her post-resignation job
    search. The government introduced Ford’s resignation letter, an email Ford sent to Godinez-
    Phillips and others, Ford’s appointment letter to her NTE position, Wolf’s resume, and a letter
    from Weeks to the Administrative Coordinator for the office. Among the documents that Ford
    relies on in her brief that were not before the district court at trial are the transcript of her
    EEOC hearing; various exhibits presented at the EEOC hearing, including a “Review
    4
    No. 09-10160
    We hold that the district court’s finding that Ford had not suffered age
    discrimination was not clearly erroneous. In so holding, we note that the thrust
    of Ford’s argument seems to be that she presented sufficient evidence for the
    district court to find that discrimination occurred. See, e.g., Bl. Br. at 17 (“a
    plaintiff’s prima facie case . . . may allow” a finding of discrimination); id. at 35
    (noting “sufficient evidence to demonstrate that age” was factor in employment
    decision); id. at 40 (“a fact finder could infer” that the non-discriminatory reason
    advanced for not promoting Ford was pretextual). But this assertion is
    inapposite to our standard of review. Ford must show that the district court’s
    findings and credibility determinations were clearly erroneous. She has not.
    Ford argues that Godinez-Phillips’s statements to her regarding
    youthfulness and vibrancy are direct evidence of age discrimination. The district
    court found that Ford had not produced direct evidence of discrimination. Ford
    v. Potter, No. 3:07-CV-1039, 
    2008 WL 5272782
    , at *5 (N.D. Tex. Dec. 18, 2008).
    This conclusion was based in part on determinations of witness credibility. See
    
    id.
     at n.7 & 8.3 These credibility determinations were not clearly erroneous and
    the district court, after making them, properly found that the statements did not
    constitute direct evidence of discrimination and analyzed Ford’s claim under the
    McDonnell-Douglas framework.
    The district court’s conclusion that the government had a non-
    discriminatory reason for not promoting Ford is also not clearly erroneous. After
    hearing testimony from both Ford and Godinez-Phillips, the district court
    concluded that Godinez-Phillips hired Ihekere because the latter possessed a
    number of qualities that Godinez-Phillips was seeking in new hires, including
    Committee Checklist” that is included in the record excerpts; and the transcript of Godinez-
    Phillips’s deposition.
    3
    The district court found credible Godinez-Phillips’s denial that she told Ford that
    Ihekere was promoted despite her lack of merit because Ihekere was “youthful” and “vibrant.”
    5
    No. 09-10160
    trial experience and the potential to act as “corporate counsel,” training the
    client so as to prevent lawsuits. Godinez-Phillips also appreciated Ihekere’s
    exuberance and was disturbed that Ford gave essentially the same responses in
    her second interview despite being counseled that her earlier answers had been
    inadequate. After hearing testimony and reviewing the exhibits, the district
    court also concluded that Ihekere’s name was added to the list of interviewees
    after initially being rejected not for any discriminatory reason, but because
    USPS was seeking to hire several attorneys and Godinez-Phillips urged the
    review committee to be less selective. These credibility determinations are not
    clearly erroneous.
    Finally, the district court did not abuse its discretion in denying Ford’s
    motion for an adverse inference based on spoliation of evidence. Such an
    inference is predicated on the “bad conduct” of the defendant. United States v.
    Wise, 
    221 F.3d 140
    , 156 (5th Cir. 2000). A plaintiff must show that a defendant
    acted “in bad faith” to establish that it is entitled to such an inference. King v.
    Ill. Cent. R.R., 
    337 F.3d 550
    , 556 (5th Cir. 2003) (quotation omitted). The district
    court found that after he was deposed, the interviewee who took the notes
    showed government attorneys where the notes were stored. Years later—and on
    the eve of trial—Ford requested that the notes be produced and they could not
    be found. The district court concluded that “there is no affirmative evidence that
    the notes have actually been destroyed or, if discarded or destroyed, of the
    circumstances under which this occurred.” Ford, 
    2008 WL 5272782
    , at *4 n.3. On
    appeal, Ford identifies no evidence from which a factfinder could conclude that
    the notes were destroyed or discarded in bad faith, but merely argues that the
    failure to produce these notes “smell[s] bad [and] is bad conduct and bad faith.”
    Bl. Br. at 49. Ford never objected to the discovery produced by the government
    prior to the eve of trial, nor did she file a motion to compel production of these
    6
    No. 09-10160
    notes. Under these circumstances, the district court did not abuse its discretion
    in denying her motion for an adverse inference based on spoliation of evidence.
    CONCLUSION
    Considering the foregoing, the judgment of the district court is AFFIRMED.
    7