UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DELPHINE HENRY,

Plaintiff,

v. Case No.: 2:12-cv-841

JUDGE SMITH

Magistrate Judge Kemp

ABBOTT LABORATORIES, 

Defendant.

OPINION AND ORDER

In this action, plaintiff, Delphine Henry, alleges that defendant, Abbott Laboratories, 

failed to promote and constructively discharged her because of her race in violation of Title VII, 

as amended, 42 U.S.C. § 2000e-5, and in violation of Ohio Revised Code § 4112. Plaintiff also 

asserts a state law claim for retaliation. Plaintiff moves for sanctions for spoliation of evidence 

and to strike affidavits submitted by defendant in opposition to plaintiff’s motion for sanctions. 

(Doc. 45, 51). Defendant moves for summary judgment. (Doc. 54). For the reasons that follow, 

the Court grants defendant’s motion for summary judgment and denies plaintiff’s motions.

I. BACKGROUND

A. Procedural Background

On May 4, 2010, plaintiff filed a charge with the Ohio Civil Rights Commission 

(“OCRC”) alleging that defendant impermissibly denied her a promotion in violation of state and 

federal law. In June of 2010, defendant learned about plaintiff’s charge and put a litigation hold 

on employment documents related to her allegations. (Affidavit of Rebecca Fincher (“Fincher 

Affidavit”), at ¶4). Defendant responded to plaintiff’s charge on July 1, 2010. The OCRC 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 1 of 21 PAGEID #: <pageID>
2

initially found no probable cause, but upon reconsideration, found probable cause on April 28, 

2011. Plaintiff apparently filed a second charge alleging retaliation on September 9, 2011. 

On September 13, 2012, plaintiff filed her initial Complaint. After failing to appear at a 

December 6, 2012 pretrial conference and failing to comply with several Court orders, plaintiff’s 

case was dismissed for failure to prosecute on January 16, 2013 pursuant to Rule 41(b) of the 

Federal Rules of Civil Procedure. Plaintiff had until February 15, 2013 to appeal that dismissal. 

Fed.R.App.P. 4(a)(1)(A). No appeal was filed. On April 11, 2013, defendant lifted the litigation 

hold and documents collected by its legal department were destroyed. (Fincher Affidavit, ¶6; 

Affidavit of Julie Matovich (“Matovich Affidavit”), at ¶4). 

On October 29, 2013, plaintiff moved for relief from the dismissal of her case pursuant to 

Rule 61(b) of the Federal Rules of Civil Procedure. On January 3, 2013, the Magistrate Judge 

recommended that the Court grant Plaintiff that relief. The next day, defendant reinstituted a 

litigation hold on documents related to plaintiff’s allegations. (Fincher Affidavit, ¶7). This 

Court ultimately adopted the Magistrate’s recommendation and granted plaintiff relief from the 

dismissal of her case. Plaintiff was also permitted to file an Amended Complaint on April 24, 

2014. In it, she alleged race discrimination in violation of Title VII and Ohio law and alleged 

retaliation in violation of Ohio law. 

B. Factual Background

1. Defendant’s Consumer Relations Department

Plaintiff is an African American woman who was employed by defendant in its 

Consumer Relations Department from 2009 until September 29, 2011.1

 The Consumer Relations 

 1 Plaintiff was employed in the department prior to 2009 but indicates that although she points to “past acts as 

evidence of discrimination” her claims for monetary damages are confined to acts beginning in 2009. (Doc. 61, 

PAGEID# 1950.) Accordingly, the Court has examined all of the record but focuses its discussion on acts occurring 

from 2009 forward. 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 2 of 21 PAGEID #: <pageID>
3

Department was a call center that fielded complaints from consumers and healthcare 

professionals about defendant’s products. Complaints were classified into three categories. 

Level One complaints involved relatively uncomplicated issues such as complaints about product 

taste or dents in product packaging. Level Two complaints involved more complex issues such 

as complaints about product defects. Level Three complaints involved more serious “adverse 

events” such as products making people ill. 

Consumer Relations Representative I (“Rep I”) was the entry level position in the 

Consumer Relations Department. Rep I’s handled Level One complaints, logged all calls they 

received in a database, and drafted letter responses to consumer inquiries. Rep I’s were also 

expected to determine if a complaint qualified as a Level Two or Level Three complaint and to 

forward them to supervisors in the department. Rep I’s could be promoted to a Consumer 

Relations Representative II (“Rep II”). Rep IIs were permitted to handle higher level complaints, 

including at times, Level Two and Level Three complaints. Quality Coordinators and Senior 

Representatives in the department fielded complaints and held additional responsibilities. 

Managers oversaw teams comprised of Rep I’s, Rep II’s, Quality Coordinators, and Senior 

Representatives. 

The performance of Rep I’s and Rep II’s was monitored in several ways. Managers 

would randomly listen to three to five randomly selected calls handled by each Rep I or Rep II 

on his or her team every month. Performance during those calls would be scored and used to 

generate a monthly performance rating for how each Rep I and Rep II handled calls. Managers 

also assessed how well Rep I’s and Rep II’s logged complaints in the database and drafted letter 

responses to consumer inquiries. Those assessments were used to create monthly performance 

ratings for these activities as well. The monthly performance ratings were compiled annually 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 3 of 21 PAGEID #: <pageID>
4

and made part of each employee’s annual performance review. The monthly and annual 

performance ratings consisted of four ratings categories: Exceeding Expectations (EE); 

Achieving Expectations (AE); Partially Achieving Expectations (PA); and Not Achieving 

Expectations (NA). 

A Rep I could be promoted to Rep II if he or she possessed, amongst several things, one 

year of experience as a “fully functioning” Rep I. This generally meant that a Rep I had to have 

annual performance rating of at least AE to be considered a candidate for promotion. To be 

promoted, a manager would identify a list of Rep I’s that he or she managed who were 

candidates for promotion to Rep II at the beginning of August and February of each year. After 

that list was of candidates was identified, “Rep II readiness surveys” would be distributed to 

Senior Representatives and Quality Coordinators on the same team as a Rep I who was identified 

as a candidate for promotion to Rep II. The surveys, also referred to as pre-assessment surveys, 

asked Senior Representatives and Quality Coordinators to anonymously assess a Rep I’s ability 

to perform Rep II responsibilities. The survey results were then compiled by Senior 

Coordinators and provided to the Rep I’s manager. A Rep I needed to attain a score of 80% -

85% in order to be eligible to move to the next promotional phase— training for the Rep II 

position. 

2. 2008 and 2009

In 2008, plaintiff was a Rep I on a team managed by Carol Marvin. On March 5, 2009, 

plaintiff received her performance evaluation for 2008. Plaintiff received an overall rating of AE 

for 2008. Nevertheless, plaintiff received a PA in one evaluation subcategory: “Operations, 

Written Correspondence – Inquiry Letters.” (PAGEID# 2215). Marvin did not identify plaintiff 

as a candidate for promotion to Rep II in August of 2009. Accordingly, Marvin did not 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 4 of 21 PAGEID #: <pageID>
5

distribute Rep II readiness surveys for plaintiff, plaintiff was not anonymously assessed by 

Senior Representatives and Quality Coordinators on her team, and plaintiff was not eligible for 

Rep II training. 

In 2009, plaintiff remained a Rep I on a team managed by Marvin. On February 2, 2010, 

plaintiff received her performance evaluation for 2009. Plaintiff received another overall rating 

of AE for 2009. But plaintiff received a PA in one evaluation subcategory: “Competencies: 

Innovation.” (PAGEID# 2206). Marvin met with plaintiff on February 4 and 22, 2010 to discuss 

plaintiff’s performance evaluation for 2009. Marvin did not identify plaintiff as a candidate for 

promotion to Rep II at that time. 

3. 2010 

In March of 2010, plaintiff sent an email to Marvin and Marvin’s supervisor, Laurie 

Boogard, indicating that she had been in the department for a long time and wished to be 

considered for a promotion to Rep II in the near future. Boogard responded that length of tenure 

in the department was not an indicator of which role was most suitable and indicated that Marvin 

would speak with plaintiff about plaintiff’s development. After receiving plaintiff’s email, 

Marvin distributed Rep II readiness surveys to Quality Coordinators and Senior Representatives 

on plaintiff’s team. The survey results were not favorable— plaintiff did not receive a score of 

80% or better. Plaintiff filed her charge with the OCRC in May of 2010 alleging that defendant 

impermissibly failed to promote her on the basis of her race. 

Plaintiff remained a Rep I on a team managed by Marvin in 2010. At her deposition, 

plaintiff agreed that her “performance in 2010 was worse than it had been in previous years.” 

(Deposition of Delphine Henry, 119:16-19, PAGEID# 573). Specifically, the Consumer 

Relations department implemented a new software system called Salesforce.com. Plaintiff and 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 5 of 21 PAGEID #: <pageID>
6

others had difficulties learning that new system. Plaintiff also had at least two recorded instances 

where she provided incorrect information to consumers who called the department seeking 

information about product recalls. Plaintiff also had at least one recorded instance where a 

consumer became frustrated and hung up after she was unable to answer the consumer’s 

question. 

Moreover, in November of 2010, plaintiff provided a consumer who called the 

department to inquire about a refund with a password that allowed the consumer to access an 

internal database maintained by defendant for defendant’s employees. The database contained 

confidential information including the names and addresses of other consumers entitled to a 

refund. After management learned that plaintiff had given the consumer access the internal 

database, defendant was forced to shut down all access to the database for several days. During 

that period, defendant created new usernames and passwords for its employees. Plaintiff was 

also temporarily suspended while defendant investigated the security breach. At the end of that 

investigation, plaintiff received a written warning. Plaintiff was also placed on a call training 

line when she returned from suspension and required to receive a rating of AE for call quality for 

three consecutive months before she could resume her normal duties. 

On February 18, 2011, plaintiff received her performance evaluation for 2010. Plaintiff 

received an overall rating of PA for 2010. Marvin did not identify plaintiff as a candidate for 

promotion to Rep II in February of 2011. 

4. 2011 

Plaintiff remained a Rep I on a team managed by Marvin in 2011. Plaintiff continued to 

have difficulties with Salesforce.com in early 2011. Plaintiff also received a PA rating for call 

quality in February, March, April, and May of 2011. Accordingly, plaintiff was coached on May 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 6 of 21 PAGEID #: <pageID>
7

17, 2011 and received a Letter of Expectations in June of 2011. The letter detailed several 

instances where plaintiff had not used Salesforce.com properly. It also indicated that plaintiff 

had 60 days to improve her performance. 

Shortly after receiving the June 11, 2011 letter, plaintiff began a medical leave that lasted 

until August of 2011. When she returned from leave, plaintiff was returned to the training line 

and received a third round of training on Salesforce.com. Plaintiff was also informed that she 

would still be subject to the terms of the June 11, 2011 letter. On September 27, 2011, plaintiff 

tendered written resignation. In her resignation she indicated that she was resigning in order to 

protect herself from retaliation from her manager. 

II. STANDARD OF REVIEW

The standard governing summary judgment is set forth in Rule 56(a) of the Federal Rules 

of Civil Procedure, which provides that “[t]he court shall grant summary judgment if the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.”

Summary judgment will not lie if the dispute about a material fact is genuine; “that is, if 

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 

Summary judgment is appropriate, however, if the nonmoving party fails to make a showing 

sufficient to establish the existence of an element essential to that party's case and on which that 

party will bear the burden of proof at trial. See Muncie Power Prods., Inc. v. United Techs. 

Auto., Inc., 328 F.3d 870, 873 (6th Cir.2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 7 of 21 PAGEID #: <pageID>
8

When reviewing a summary judgment motion, the Court must view all the facts, evidence 

and any reasonable inferences that may permissibly be drawn from the facts, in favor of the 

nonmoving party. See, e.g., Crawford v. Metro. Gov't, 555 U.S. 271, 274 n. 1, 129 S.Ct. 846, 

172 L.Ed.2d 650 (2009) (quoting Brosseau v. Haugen, 543 U.S. 194, 195, n. 2, 125 S.Ct. 596, 

160 L.Ed.2d 583 (2004)); Muncie Power Prods., Inc., 328 F.3d at 873 (citing Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). 

The Court will ultimately determine whether “the evidence presents a sufficient disagreement to 

require submission to a jury or whether it is so one-sided that one party must prevail as a matter 

of law.” Liberty Lobby, 477 U.S. at 251–52.

Moreover, “[t]he trial court no longer has a duty to search the entire record to establish 

that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 

1472, 1479–80 (6th Cir.1989). That is, the nonmoving party has an affirmative duty to direct the 

Court's attention to those specific portions of the record upon which it seeks to rely to create a 

genuine issue of material fact. In re Morris, 260 F.3d 654, 665 (6th Cir.2001). 

III. DISCUSSION

A. Defendant’s Motion for Summary Judgment

1. Failure to Promote in Violation of Title VII and ORC § 4112

Plaintiff asserts that defendant failed to promote her because of her race in violation of 

Title VII and Ohio Revised Code §4112. Specifically, plaintiff finds fault with the fact that 

Marvin never identified her as a candidate for promotion from Rep I to Rep II in 2009 and 2010. 

To state a prima facie case of race discrimination with respect to a failure to promote 

claim, plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she applied 

for and was qualified for the position; (3) she was considered for and was denied the position; 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 8 of 21 PAGEID #: <pageID>
9

and (4) that an individual of similar qualifications who was not a member of the protected class 

received the job at the time plaintiff's request for the promotion was denied. White v. Columbus 

Metropolitan Housing Auth., 429 F.3d 232, 240 (6th Cir.2005), citing Nguyen v. City of 

Cleveland, 229 F.3d 559, 562–63 (6th Cir.2000). If plaintiff meets this burden, the burden then 

shifts to the employer to produce a legitimate non-discriminatory reason for its promotion 

decision. Id. 

a. Failure to Promote in 2009 for Job Year 2008

In this case, the Court concludes that plaintiff has stated a prima facie case with regard to 

defendant’s failure to promote her in 2009 for job year 2008. Plaintiff demonstrates the first 

element because she is a member of a protected class. Plaintiff also demonstrates the second 

element. Although plaintiff did not formally ask to be promoted, a formal application system 

was not in place for promotion from Rep I to Rep II. Instead, Rep I managers identified possible 

candidates. Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 n. 2 (6th Cir.2000) (when “the

employer does not notify its employees of the available promotion or does not provide a formal 

mechanism for expressing interest in the promotion,” a plaintiff does not have to show that he

applied for or was considered for the promotion). Moreover, plaintiff received an overall rating 

of AE on her March 5, 2009 performance evaluation for job year 2008, making her qualified for 

promotion from the Rep I to the Rep II position. Accordingly, plaintiff has sufficiently met the 

second element.

Plaintiff has also demonstrated the third element by showing that a similar individual 

who was not a member of the protected class received a promotion from Rep I to Rep II. 

Specifically, plaintiff points out that Amanda Nelson, who was managed by Marvin for job year 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 9 of 21 PAGEID #: <pageID>
10

2008, was identified by Marvin as a candidate for promotion from Rep I to Rep II in 2009. Like 

plaintiff, Nelson received an overall rating of AE in 2009 for job year 2008. 

Despite this, there is simply no evidence that could successfully rebut as pretext Marvin’s 

decision not to identify plaintiff as a candidate for promotion in 2009. In considering the 

plaintiff’s burden on this element, it is important to note that an employer may make 

employment decisions “for a good reason, a bad reason, a reason based on erroneous facts, or for 

no reason at all, as long as its action is not for a discriminatory reason.” Nix v. WLCY 

Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.1984); see also Manzer v. 

Diamond Shamrock Chem. Co., 29 F.3d 1078, 1083 (6th Cir.1994) (similar). In this case, 

although defendant may not have had a good reason for failing to promote plaintiff, there is no 

evidence that could convince a reasonable jury that defendant failed to promote her because of 

her race. Defendant asserts that Rep I and Rep II responsibilities differed and that even if an 

employee functioned well in the Rep I role, he or she may not be able to function as a Rep II. 

That assertion is uncontested. 

Marvin determined that despite plaintiff’s AE rating as Rep I for job year 2008, she was 

not suited for Rep II responsibilities in 2009. There is no evidence that race influenced that 

decision. At her deposition, plaintiff testified that Marvin never used racial slurs, never called 

plaintiff names, and never made negative comments about African-Americans. Indeed, the only 

negative comments that plaintiff described were comments that Marvin made to correct

plaintiff’s Appalachian accent when she pronounced certain words. These comments, which 

were made by Marvin early in plaintiff’s tenure, and several years before Marvin’s promotion 

decision in 2009, made plaintiff feel “humiliated.” But they do not demonstrate racial animus, 

particularly given that Appalachia is a region, not a race. 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 10 of 21 PAGEID #: <pageID>
11

b. Failure to Promote in 2010 for Job Year 2009

Plaintiff is unable to state a prima facie case with regard to defendant’s failure to promote 

her in 2010 for job year 2009. Plaintiff can demonstrate the first two elements because she was a 

member of a protected class and received an overall rating of AE for 2009. Nevertheless, 

plaintiff has failed to demonstrate the third element— that a similar individual who was not a 

member of the protected class received a promotion from Rep I to Rep II. Plaintiff points out 

that Rachel Wallis, a Caucasian who also received an overall rating of AE in 2010 for job year 

2009, was promoted from Rep I to Rep II in 2010. It appears, however, that Wallis was managed 

by a different manager, Julie Matovich. In order to prove the second element of the prima facie

case, the plaintiff must produce evidence that the relevant other employees are ‘similarly situated 

in all respects.’ ” Hollins v. Atlantic Co., 188 F.3d 652, 659 (6th Cir.) (quoting Mitchell v. Toledo 

Hospital, 964 F.2d 577, 583 (6th Cr. 1992)). Precise equivalence between employees is not 

required. See Harrison v. Metropolitan Gov’t, 80 F.3d 1107, 1115 (6th Cir.1996). However,

[T]o be deemed “similarly-situated”, the individuals with whom the plaintiff seeks to compare 

his/her treatment must have dealt with the same supervisor, have been subject to the same 

standards and have engaged in the same conduct without such differentiating or mitigating 

circumstances that would distinguish their conduct or the employer’s treatment of them for it. 

Mitchell, 964 F.2d at 583. 

Even if plaintiff could establish a prima facie case with regard to the promotion decision 

in 2010, she is still unable to demonstrate that defendant’s reasons for deciding that she was not a 

candidate for promotion from Rep I to Rep II was pretext. As noted, plaintiff has not alleged any 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 11 of 21 PAGEID #: <pageID>
12

facts that suggest that race was a motive in any of Marvin’s promotion decisions.2

 Indeed, 

plaintiff’s only attempt to demonstrate pretext about the 2010 promotion decision consists of 

comparing language contained in her February 2010 performance evaluation as a Rep I for job 

year 2009 to language contained in an email in June of 2010 where Marvin discussed plaintiff’s 

readiness for promotion to Rep II at that time. The language in those two documents differs, but 

they address different time frames and different positions. They do not demonstrate pretext. 

2. Constructive Discharge in 2011 Violation of Title VII and ORC § 4112

Plaintiff also alleges that she was constructively discharged in 2011 in violation of Title 

VII and ORC § 4112 when she returned from medical leave in August 2011. Plaintiff points out 

that when she returned from medical leave, she was kept on the training line and informed that 

she was still subject to the terms of the letter of expectations she had received before going on 

leave in June. Plaintiff asserts that this forced her from her career, and thus she resigned in 

September 2011. 

A constructive discharge occurs when the employer, rather than acting directly, 

‘deliberately makes an employee’s working conditions so intolerable that the employee is forced 

into an involuntary resignation.” ’ Laster v. City of Kalamazoo, 746 F.3d 714, 727-28 (6th Cir. 

2014) (quoting Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir.1987)). To demonstrate 

a constructive discharge, plaintiff must adduce evidence to show that: 1) the employer 

deliberately created intolerable working conditions, as perceived by a reasonable person, and 2) 

the employer did so with the intention of forcing the employee to quit. Id. (citing Saroli v. 

Automation and Modular Components, Inc., 405 F.3d 446 (6th Cir. 2005)). 

 2 It does not appear that plaintiff alleges that defendant failed to promote her in 2011 for job year 2010. To the 

extent she does, she has not asserted that she was qualified for promotion in 2011 because she received an overall 

rating of PA in 2011 for job year 2010. She also admits that her performance in 2010 was worse than in prior years. 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 12 of 21 PAGEID #: <pageID>
13

In this case, the Court finds that being put on a training line and being made subject to the 

letter of expectations falls short of a constructive discharge. A performance improvement plan, 

even one that specifically threatens termination if performance is not improved, does not 

constitute a constructive termination. Agnew v. BASF Corp., 296 F.3d 307, 309 (6th Cir. 2002); 

Farris v. Port Clinton Sch. Dist., 2006 WL 964719, at *14-15 (Ohio App Ct. April 14, 2006). 

Moreover, plaintiff does not contest that her performance in 2010, which was the impetus for the 

letter of expectations in 2011, was worse than it had been in previous years. 

3. Retaliation in Violation of ORC § 4112

Plaintiff asserts that defendant retaliated against her after she filed her charge with the 

OCRC in May of 2010. In order to establish a prima facie case of retaliation, a plaintiff must 

demonstrate that: (1) he engaged in activity protected by Title VII; (2) the defendant knew of this 

exercise of his protected rights; (3) the defendant consequently took an action that was 

“materially adverse” to the plaintiff; and (4) there is a causal connection between the protected 

activity and the materially adverse action. Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 542 

(6th Cir.2003); see also Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 

S.Ct. 2405, 165 L.Ed.2d 345 (2006) (modifying the third element to require a “materially 

adverse action” rather than an “adverse employment action”). 3

 

The Court concludes that plaintiff cannot establish the third prong— that defendant took 

action that was materially adverse to her. Plaintiff asserts that defendant subjected plaintiff’s 

work to increased scrutiny and that this constituted materially adverse action. It is, however, 

well settled that increased scrutiny of work is not tantamount to an adverse employment action. 

Allen v. Mich. Dep’t of Corrections, 165 F.3d 405, 410 (6th Cir. 1999) (holding that supervisors’

 3 When analyzing retaliation claims, Ohio courts rely on federal case law. Chandler v. Empire Chem., Inc., 

Midwest Rubber Custom Mixing Div., 99 Ohio App.3d 396, 402 (Ohio App. Ct. 1994).

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 13 of 21 PAGEID #: <pageID>
14

alleged action of monitoring the plaintiff more closely than they monitored non-African 

American employees did not constitute “adverse employment actions” actionable under Title 

VII); Birch v. Cuyahoga County Probate Ct., 392 F.3d 151, 169 (6th Cir. 2004) (increased 

scrutiny of work did not constitute action that was materially adverse sufficient to support a 

retaliation claim).

Plaintiff further asserts that her poor performance review for job year 2010 and the June 

2011 letter of expectations constitute materially adverse actions. In Primes, however, the Court 

rejected a plaintiff’s argument that his low evaluation constituted an adverse employment action. 

Primes v. Reno, 190 F. 3d 765, 767 (6th Cir. 1999). The Primes Court explained:

If every low evaluation or other action by an employer that makes an employee 

unhappy or resentful were considered an adverse action, Title VII would be 

triggered by supervisor criticism or even facial expressions indicating displeasure.

Paranoia in the workplace would replace the prima facie case as the basis for a 

Title VII cause of action. The case law supports our view that the employer 

conduct in this case will not support a Title VII cause of action. See Yates v. Avco, 

819 F.2d 630, 638 (6th Cir.1987) (plaintiff did not suffer adverse employment 

action, where demotion was in response to request for a transfer away from a 

harassing supervisor, salary and benefits were not reduced, and employee was 

assured that she would receive the next available position at higher grade); 

Sweeney v. West, 149 F.3d 550, 557 (7th Cir.1998) (if negative performance 

evaluation were deemed actionable as “retaliation,” it would “send a message to 

employers that the slightest nudge or admonition ... can be the subject of a federal 

lawsuit”); Rabinovitz v. Pena, 89 F.3d 482, 488-89 (7th Cir.1996) (low 

performance evaluation and consequent ineligibility for discretionary bonus not 

actionable adverse employment action); Montandon v. Farmland Industries, Inc., 

116 F.3d 355, 359 (8th Cir.1997) (lower performance evaluation not used as basis 

for any action against employee not “adverse employment action”); Meredith v. 

Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir.1994) (same).

Id. 

Applying the foregoing to this case, the Court concludes that plaintiff’s performance 

evaluation for job year 2010 and the 2011 letter of expectations do not constitute materially 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 14 of 21 PAGEID #: <pageID>
15

adverse actions, particularly given that plaintiff’s 2010 performance was admittedly worse than 

prior years. 

Plaintiff contends that she suffered harassment after she filed her charge and that this 

constituted materially adverse action. Specifically, plaintiff contends that after she filed her 

charge, Marvin and others stopped talking to her; Marvin would not tell her who completed the 

anonymous Rep II readiness surveys that were distributed in 2010; and that plaintiff’s call 

quality scores dropped to 96.5%. As a matter of record fact, however, plaintiff had quality 

scores that were lower than 96.5% before she filed her charge. Moreover, harassment must be 

severe or pervasive in order to sustain a retaliation claim. Akers v. Alvey, 338 F.3d 491, 499 (6th 

Cir. 2003). At most, the actions about which plaintiff complain are de minimus.

Plaintiff also contends that Marvin misreported her call quality scores after she filed her 

charge and that this constituted a materially adverse action. In support of this contention, 

plaintiff created a chart comparing call quality scores on two different documents. Nevertheless, 

defendant notes that one document reflect scores that Marvin assigned to a sample of calls

handled by plaintiff and that Marvin evaluated. (Affidavit of Carol Marvin, at ¶6). The other 

document reflects scores assigned to calls handled by plaintiff that were compiled from scores 

assigned by Marvin and others during the same period who evaluated samples of calls handled 

by plaintiff. (Id. at ¶8). Accordingly, this does not constitute a materially adverse action 

sufficient to support plaintiff’s retaliation claim. For these reasons, the Court dismisses 

plaintiff’s retaliation claim. 

B. Plaintiff’s Motion for Sanctions and Motion to Strike

Plaintiff has also moved for sanctions for spoliation because personnel documents were 

destroyed. Specifically, during discovery, plaintiff requested production of personnel 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 15 of 21 PAGEID #: <pageID>
16

documents, including performance evaluations and Rep II readiness surveys for 27 employees 

that purportedly worked in the same department as plaintiff. (Doc. 45-2). Defendant responded 

that it would “produce responsive documents to the extent that they exist . . . .” (Id.) Both parties 

concede that defendant produced a large quantity of documents. (Doc. 45-1, PAGEID# 187; 

Doc. 50, PAGEID# 423). Plaintiff nevertheless filed her spoliation motion on February 12, 

2015, and sought an adverse inference or summary judgment. Several days later, defendant 

produced performance evaluations for one of the 27 employees and Rep II readiness surveys for 

six of the 27 employees. (Affidavit of Sharon Cason-Adams (“Cason-Adams Affidavit”), at ¶¶ 

2-3, 11). At that time, defendant’s counsel told plaintiff’s counsel that the Rep II readiness 

surveys were not being produced from defendant’s files but were documents that had been 

produced to and bates stamped by the OCRC and kept in files maintained by defendant’s outside 

counsel. (Id., ¶ 8). 

When opposing plaintiff’s spoliation motion, defendant submitted affidavits from several 

employees, including Rebecca Fincher, a senior litigation paralegal, and Cindy Foster, a Director 

in Business Human Resources. The Fincher Affidavit generally described that although 

defendant instituted a litigation hold on documents when it learned of plaintiff’s charge, that hold 

was lifted and documents were destroyed after this Court dismissed plaintiff’s case for failure to 

prosecute. (Fincher Affidavit, ¶¶ 3-7). The Foster Affidavit indicated that 19 of the 27 

employees identified by plaintiff never held the Rep I position or were promoted from Rep I to 

Rep II before May of 2009. (Affidavit of Cindy Foster (“Foster Affidavit”), at ¶ 4). Plaintiff 

moved to strike these two affidavits. 

The term “spoliation” includes the destruction of evidence or the failure to preserve

property for another’s use as evidence in pending or reasonably foreseeable litigation. Owner–

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 16 of 21 PAGEID #: <pageID>
17

Operator Indep. Drivers Ass’n v. Comerica Bank, 860 F.Supp.2d 519, 537–38 (S.D. Ohio 2012). 

The Sixth Circuit Court of Appeals has explained that, “the authority to impose sanctions for 

spoliated evidence arises not from substantive law but, rather, ‘from a court’s inherent power to 

control the judicial process.’ ” Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009) (en banc); 

see also Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y.2004) (“The authority to 

sanction litigants for spoliation arises jointly under the Federal Rules of Civil Procedure and the 

court's inherent powers.”). Accordingly, the Court applies federal law when determining 

whether spoliation has occurred. Id. 

To establish entitlement to an adverse inference, plaintiff must show that: (1) defendant 

had an obligation to preserve evidence at the time it was destroyed; (2) the evidence was 

destroyed with a culpable state of mind; and (3) the destroyed evidence was relevant to 

Plaintiff’s claims such that a reasonable trier of fact could find that it would support that claim. 

See Beaven v. United States DOJ, 622 F.3d 540, 553 (6th Cir.2010). Nevertheless, courts 

generally will not impose an adverse inference unless the party destroyed the evidence in bad 

faith. See In re Nat’l Century Fin. Enters., Inc. Financial Investment Litigation, No. 2:03–md–

1565, 2009 WL 2169174, at *3 (S.D. Ohio July 16, 2009). 

In this case, Plaintiff argues that Defendant’s duty to preserve performance reviews and 

survey results arises from regulation. Specifically, a regulation promulgated by the Department 

of Labor provides that an employer is obligated to preserve all personnel records for a year, 

including records related to promotions and selection for training. 29 CFR § 1602.14. That 

regulation also provides that once a charge of discrimination has been filed, an employer is 

obligated to preserve “all personnel records relevant to the charge or action until final disposition 

of the charge or the action.” 29 CFR § 1602.14. The regulation specifically defines “final 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 17 of 21 PAGEID #: <pageID>
18

disposition of the charge or the action” as the date when the statutory period to file an action in a 

U.S. District Court expires or, when an action is brought against an employer, the date when that 

litigation is terminated. Id.

Several courts, including the Seventh Circuit, have held that the failure to preserve 

records in violation of a regulation requiring retention can give rise to an inference of spoliation, 

even if litigation involving the records is not reasonably foreseeable at the time the records are 

made. Johnson v. Metropolitan Govt’ of Nashville, Nos. 3:07-0979, 2010 WL 3342211, at *18

(M.D. Tenn. Aug. 24, 2010) (citing Byrnie v. Town of Crowmwell Bd. of Educ., 243 F.3d 93, 

109–10 (2nd Cir.2001); see also Latimore v. Citibank Fed. Savs. Bank, 151 F.3d 712, 716 (7th 

Cir.1998); Favors v. Fisher, 13 F.3d 1235, 1239 (8th Cir.1994); Hicks v. Gates Rubber Co., 833 

F.2d 1406, 1419 (10th Cir.1987)). In each such case, however, there was a regulatory violation. 

The Court finds that no such violation occurred here.

Plaintiff filed her charge with the OCRC in May of 2010. The regulation obligated 

Defendant to preserve all personnel documents related to Plaintiff’s charge. 29 CFR § 1602.14. 

Accordingly, Defendant put a litigation hold on documents when it received notice of the charge 

in June of 2010. (Fincher Affidavit, at ¶4). On January 16, 2013, Plaintiff’s case was dismissed 

for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Plaintiff 

never appealed that dismissal and the litigation was terminated. 29 CFR § 1602.14. Thereafter, 

defendant lifted the litigation hold and documents collected by the legal department were 

destroyed. (Fincher Affidavit, ¶6; Matovich Affidavit, ¶4). Not until six months later did 

plaintiff seek relief from the dismissal of her case pursuant to Rule 61(b) of the Federal Rules of 

Civil Procedure. And defendant reinstituted a litigation hold the day after the Magistrate 

recommended that the Court grant plaintiff the requested relief. (Fincher Affidavit, ¶7). On 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 18 of 21 PAGEID #: <pageID>
19

these facts, in this case, the Court finds that defendant did not commit a regulatory violation. 

Defendant put a hold on documents when it learned of the charge and kept it in place until this 

case was disposed of by this Court’s dismissal with prejudice. Defendant began preserving 

documents again when the case was reinstated. 

The Court also concludes that even if did defendant had an ongoing obligation to 

preserve the documents, on these facts, there is no evidence that defendant possessed a level of 

culpability that would justify imposition of sanctions, including an adverse inference or summary 

judgment. Absent any indication to the contrary, it appears that defendant reasonably believed 

plaintiff’s case had been disposed of when this Court’s dismissed plaintiff’s case with prejudice. 

Indeed, this Court believed that plaintiff’s case had been finally adjudicated. 

The Court is also not convinced that the documents at issue are sufficiently relevant to 

plaintiff’s claims to justify sanctions. With regard to plaintiff’s allegations that defendant failed 

to promote her because of her race in 2009 and 2010, plaintiff sought performance evaluations 

and Rep II readiness surveys for 27 employees that purportedly worked in the department where 

she worked. Defendant asserts that 19 of those 27 employees never held Rep I position or were 

promoted from Rep I to Rep II before May of 2009. (Foster Affidavit, at ¶ 4). Accordingly, 

although performance evaluations for those 19 employees may be somewhat probative, they are

not directly relevant to the time frame at issue. As for the Rep II readiness surveys, defendant 

asserts that Rep II readiness surveys for all six employees promoted from Rep I to Rep II 

between May of 2009 and May of 2010 have been produced. (Doc. 50, PAGEID# 424). 

Plaintiff does not deny this. Moreover, plaintiff does not explain how performance evaluations 

or Rep II readiness surveys for other employees are relevant to her constructive discharge or 

retaliation claim which, unlike plaintiff’s failure to promote claim, do not necessarily involve a 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 19 of 21 PAGEID #: <pageID>
20

comparison of how plaintiff was treated to how other similarly situated employees were treated 

but instead entails an analysis of how plaintiff was treated after defendant learned of her 

protected activity. Accordingly, the Court declines to impose a sanction for spoliation. 

Plaintiff’s motion for sanctions for spoliation is denied. 

The Court also declines to strike the Fincher and Foster affidavits. Plaintiff asserts that 

they should be struck because neither Fincher nor Foster were identified in defendant’s Rule 

26(a)(1) disclosures or in defendant’s responses to plaintiff’s interrogatories, and because the 

affidavits were not produced by defendant in response to document requests. Nevertheless, Rule 

26(a)(1) only requires identification of witnesses with information that may support a party’s 

claims or defenses, and the interrogatory at issue seeks identification of lay and expert witnesses 

who might be called at trial. Both affiants, however, only aver to information relevant to the 

spoliation issue and not to information pertinent to defendant’s defenses to plaintiff’s claims. 

Fincher avers to the history of the litigation hold while Foster avers to limited information that 

sheds light on the relevance of the missing documents. In addition, it appears that the affidavits 

were created on March 11, 2015 so that defendant could specifically respond to plaintiff’s 

motion for spoliation on March 12, 2015. Accordingly, they were not responsive to document 

requests propounded prior to that date. Although the Court is somewhat dismayed that defendant 

failed to inform plaintiff about the history of the litigation hold and the destruction of documents 

at an earlier point during discovery, the Court does not find that defendant’s delay is so 

egregious as to warrant sanctions, particularly given that both parties agree that defendant 

produced a large quantity of documents. (Doc. 45-1, PAGEID# 187; Doc. 50, PAGEID# 423). 

For these reasons, plaintiff’s motion to strike the Fincher and Foster affidavits is also denied. 

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 20 of 21 PAGEID #: <pageID>
21

IV. CONCLUSION

Based on the foregoing reasons, Defendant’s Motion for Summary Judgment is 

GRANTED. In light of this disposition, the Court declines to rule on whether and which of 

plaintiff’s claims might be time barred by plaintiff’s bankruptcy action. Plaintiff’s Motion for 

Sanctions for Spoliation and Plaintiff’s Motion to Strike are DENIED. 

The Clerk shall remove Documents 45, 51, and 54 from the Court’s pending motions list. 

The Clerk shall terminate this case.

IT IS SO ORDERED.

 s/ George C. Smith____ __ 

 GEORGE C. SMITH, JUDGE

 UNITED STATES DISTRICT COURT

Case: 2:12-cv-00841-GCS-TPK Doc #: 64 Filed: 09/30/15 Page: 21 of 21 PAGEID #: <pageID>