Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ackerson v. The Rector and Visitors of University of Virginia

United States District Court, W.D. Virginia, Charlottesville Division

June 22, 2018

Betsy Ackerson, Plaintiff,
The Rector and Visitors of the University of Virginia, Defendant.



         Plaintiff Betsy Ackerson (“Plaintiff”) has filed objections to U.S. Magistrate Judge Joel C. Hoppe's Report and Recommendation (“R&R”). (Dkt. 62). The R&R addresses Plaintiff's motion for sanctions against Defendant, the Rectors and Visitors of the University of Virginia (“Defendant” or “University”). (Dkt. 30). Plaintiff alleges Defendant failed to preserve notebooks that could have contained evidence relevant to her claims. As a sanction, Plaintiff requests that there be an adverse inference instruction at trial. The R&R advises this Court to deny Plaintiff's motion for sanctions because there is no concrete evidence the notebooks contained evidence relevant to Plaintiff's claims. (R&R 1). After undertaking review of the R&R and objections, see 28 U.S.C. § 636(b)(1)(B); Farmer v. McBride, 177 Fed.Appx. 327, 330 (4th Cir. 2006), I will overrule Plaintiff's objections, adopt the R&R in full, and deny Plaintiff's motion for sanctions.

         I. Standard of Review

         Under Federal Rule of Civil Procedure 72(a), district judges are required to consider timely objections to non-dispositive decisions by magistrate judges and modify or set aside any part of the decision that is “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a). A ruling is “clearly erroneous” only when the totality of the record leaves the Court with the “definite and firm impression” that a mistake has been made. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Harman v. Levin, 772 F.2d 1150, 1153 (4th Cir. 1985). It is “‘contrary to law' when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Bowers v. Univ. of Virginia, No. 3:06CV00041, 2008 WL 2346033, at *3 (W.D. Va. June 6, 2008). It is the objecting party's burden to show that a ruling is clearly erroneous or contrary to law. Kounelis v. Sherrer, 529 F.Supp.2d 503, 518 (D. N.J. 2008). “In sum, it is extremely difficult to justify alteration of the magistrate judge's nondispositive actions . . . .” 12 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 3069 (2d ed.).

         II. Factual Background

         The basic facts of this matter are undisputed. In December 2012, Plaintiff was hired by Defendant for a one-year term to administer the University's strategic plan, dubbed “the Cornerstone Plan.” (R&R 2). The development and implementation of this plan ultimately took several years to complete, and Plaintiff's employment was renewed several times. While employed by the University, Plaintiff had weekly meetings with her supervisor, Senior Vice Provost J. Milton Adams (“Adams”), to discuss the progress Plaintiff was making on the strategic plan. (Id. at 6). During these meetings, which mainly covered “to-do” or “action” items, Adams would write down those items and related notes in a notebook. Id. Throughout her time at the University, Plaintiff made multiple comments and complaints to administrators regarding her salary and title.

         In late 2015, the tension regarding Plaintiff's salary and position came to a head when her attorney contacted the Defendant's Office of University Counsel. Plaintiff's attorney raised the issue of Plaintiff's gender in regards to an alleged disparity in pay. (Id. at 3-4). Shortly thereafter Plaintiff was given a pay raise and a new title, Assistant Vice Provost. Id. Notwithstanding this raise and promotion, Plaintiff continued to lodge complaints about her salary.

         In anticipation of potential litigation, Defendant's in-house counsel then issued a comprehensive “litigation hold” notice to staff regarding Plaintiff. (Dkt. 33 at ECF 2). The hold directed employees, including Adams, to locate and preserve documents, including any handwritten materials, containing information “related directly or indirectly” to Plaintiff's allegations that she “had been paid less than similarly situated” male colleagues and had been “retaliated against for taking medical leave.” (Id. at ECF 2-3). Notwithstanding this litigation hold, Adams discarded the notebooks containing the information he wrote down during his weekly meetings with Plaintiff. (R&R 5).

         In June 2016, Plaintiff filed an EEOC charge claiming discrimination based on sex and disability, as well as retaliation for exercising her rights under the Equal Pay Act and the Rehabilitation Act. Id. In early 2017, Plaintiff then brought the instant suit against Defendant, alleging she was subjected to various forms of employment discrimination under several federal statutes (the Equal Pay Act, Title VII, Title IX, and the Rehabilitation Act).[1] (Dkt. 1). During discovery Plaintiff requested Defendant produce “[a]ny documents relating to any complaints made by Ackerson (either verbally or in writing) regarding Ackerson's position classification or salary, ” including “any notes, minutes, or memorializations of any meetings regarding such complaints.” (Dkt. 31-8 at ECF 3).

         After discovering the fate of Adams's notebooks, Plaintiff moved for sanctions, contending the notebooks may have contained relevant information that supported her claims. (Dkt. 30).

         III. Factual Objections

         Plaintiff lodges numerous factual objections to the R&R. (Dkt. 62 at ECF 2-8). The R&R is comprised of two facts sections entitled “Background, ” (R&R 1-5), and “Facts, ” (Id. at 5-11). Plaintiff mainly takes issue with how several facts are characterized. However, these factual findings are not “clearly erroneous, ” are largely irrelevant to the instant issue of spoliation, and thus will be overruled.

         A. Objections to the “Background” Section

         To begin, the Court will not accept new evidence by Plaintiff in conjunction with her objections to the R&R. “[A]ttempts to introduce new evidence after the magistrate judge has acted are disfavored.” Caldwell v. Jackson, 831 F.Supp.2d 911, 914 (M.D. N.C. 2010); see also Virgin Enters. Ltd. v. Virgin Cuts, Inc., 149 F.Supp.2d 220, 223 (E.D. Va. 2000). Moreover, “[p]arties must take before the magistrate, not only their best shot but all of their shots.” Borden v. Sec'y of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987); Frank Martin Sons, Inc. v. John Deere ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.