United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
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.
Standard of Review
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.).
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.
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.
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).
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). (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).
discovering the fate of Adams's notebooks, Plaintiff
moved for sanctions, contending the notebooks may have
contained relevant information that supported her claims.
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.
Objections to the “Background” Section
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