# U nitedStates C ou rt o f App eal s For th e Firs t C ircu it

No. 09-1082 ALTHEA BOOKER, Plaintiff, Appellant,

v . MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH (THE LEMUEL SHATTUCK HOSPITAL); THE EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES; EDWARD NICOSIA, Defendants, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]

Before Lynch, Chief Judge, Lipez and Howard, Circuit Judges.

Mark Booker, with whom Law Offices of Mark Booker was on brief, for appellant. Daniel G. Cromack, Assistant Attorney G e neral, with whom Martha Coakley, Attorney General, and Bryan R. Killian, Assistant Attorney General, were on brief, for appellee.

July 15, 2010-2- LIPEZ, Circuit Judge . Plaintiff Althea Booker filed suit against her employer, the Massachusetts Department of Public Health (the Lemuel Shattuck Hospital), the Executive Office of Health and Human Services, and certain individual defendants. A jury returned
a verdict in favor of defendants on Booker's claims of retaliation
under federal and state law, see 42 U.S.C. § 2000e-3(a); Mass. Gen. Laws ch. 151B, § 4(4), and tortious interference with contractual employment relations. The court then denied Booker's p o s t -trial motions.
On appeal, Booker first contends that the court's j u ry instruction on the meaning of a "materially adverse action" mis s tated the legal standard governing her retaliation claim. Although we conclude that the adverse a c tion instruction was problematic, we reject that claim of error.

Booker also argues that the court erroneously refused to instruct the jury on the doctrine of spoliation. Booker requested an instruction that the jury could draw an adverse inference based on the deletion of emails concern i n g Booker by certain hospital employees. We conclude that Booker failed to lay a proper evidentiary foundation for a spoliation instruction and therefore
the court d i d not abuse its discretion in refusing to give it. Accordingly, we affirm the judgment.La t e r i n 2 0 0 3 , N i c o s i a b e c a m e t h e A c t i n g D i r e c t o r of 1 Facilities, and sometime in the end of 2004 or beginning of 2005, he became the Director of Facilities. -3- I. Booker, an African-American woman, began working at the
Lemuel Shattuck Hospital (the hospital) as a telephone operator in the late 1980s. In 2001, she was promoted to "Communications Dispatcher II." Booker's responsibilities i n her new position included d i s p atching the hospital's campus police officers and supervising the telephone operators, or "Communication Dispatcher I's," who staffed the communications d e p a r tment. The communications department performed functions such as screening and receiving incoming calls, transferring calls to other departments, receiving emergency calls from within the hospital, assisting with dispatching, and greeting visitors.

On September 9, 2003, Booker met with Shawn McMullen, then her immediate supervisor, and Edward Nicosia, then the hospital's Deputy Director of Facilities Management, to express 1 concern that she was receiving telephone calls from her staff while she was off duty. Nicosia explained that under her collective bargaining agreement she was entitled to "call-back pay" for workrelated calls received at home. Later that day, Nicosia and
McMull en circulated a memorandum to Booker's staff discouraging them from calling their supervisor at home except in emergency situations, and copied Booker.-4- Several months later, on December 15, 2003, Booker handdelivered a letter to Nicosia complaining that t he hospital had discriminated against her based on race by fa i l i n g to compensate her f o r off-duty calls. In the letter, Booker asserted that she was owed call-back pay for seventy-five calls she had received at home over the past two years, and that McMullen, who is white, was receiving off-duty calls from Booker's staff that should have gone to her. She stated that the sole reason for this unequal treatment was race and that her letter represented "a relatively whispering salvo in what could become a vigorous public challenge of rampant institutional racism at the Hospital."

Later that same day, Booker con f r o nted McMullen in the campus police department, located in the hospital's main lobby. In a raised voice, Booker asked McMullen why members of her staff were calling him after hours instead of her and whether the hospital had a policy of only paying white supervisors for off-duty calls. She asserted that this was racism and she would spe a k w ith a lawyer. In early January 2004, Nicosia and McMullen had a meeting with Booker to discuss the December 15 incident. Booker apologized for confronting McMullen in such a public setting, but did not retract her complaints. Ultimately, in late January, she was issued a written warning for her behavior. On February 6, 2004, Booker filed the first of several administrative complaints with the Massachusetts Commission Against Discrimination (MCAD) and theBooker filed a second administrative complaint for 2 retaliation in May 2 0 0 5 and a third administrative complaint sometime thereafter. -5- Equal Employment Opportunity Commission (EEOC), alleging race discrimination and retaliation. 2

In the months that followed Booker's December 15 letter of complaint, Nicosia took several actions related to payroll and timekeeping procedures that d i s p leased Booker. In January 2004, Nicosia removed the communications logbook from Booker's desk and replaced it with a new logbook. Members of the communications department used the log to record information such as shift assignments, staff absences, and phone calls to staff at home, and the logbook removed by Nicosia contained entries related to Booker's claim for call-back pay. The following month, Booker and Nicosia had a disagreement about allocation of personal time. Noticing that Booker ha d m i ssed twelve hours of work but had not reported the absences on her timesheet, Nicosia deducted twelve hours of her personal time. When Booker discovered this deduction, she informed Nicosia that she preferred to use a combination of sick time, vacation time, and leave without pay to cover the time off. Although Nicosia asked Booker to make this correction by submitting a payroll adjustment form, she inste a d called the payroll department and had them make the change. After discovering that Booker made the payroll change without the appropriate paperwork, Nicosia submitted a p a y roll adjustment form again-6-

designating Booker's absences as personal time. Booker complained, but Nicosia refused to have her personal time returned.

Finally, in February 2005, Nicosia l e a rned that Booker was logging her time in the communications log and reviewing her

own ti m e s h e e t s a s w e l l a s t h o s e o f h e r s t a f f
. N i c o s i a d i rected Human Resources to make changes so that Booker was required to
enter her time in the so-called steward's log and submit her weekly timesheets to her immediate supervisor for review.

Changes were also made to Booker's job responsibilities over the 2004-2005 period. In the f a l l o f 2004, Richard Wong joined the hospital as the director of safety and security and replaced McMullen as Booker's immedi a te supervisor. Sometime
there a f t e r, Wong hired additional police officers and informed Booker that whenever at least five officers were on duty, an officer would perform dispatching duties. Booker continued to fill in as a dispatcher on an as-needed basis, around four or five times per month, but it was no longer a regular part of her job duties. Wong a l so requested that Booker get trained to perform mailroom duties, which consisted of sorting incoming mail in the morning and metering outgoing mail in the afternoon, so that she could cover the mailroom on occasion. Other employees, including Wong, covered the mailroom when the regular mailroom clerk was out, and the job description for Booker's position, Communications Dispatcher II, listed sorting a n d d elivering mail as one of her jobThe individual d e f e ndants named in the complaint were 3 Nicosia, McMullen, the hospital's Executive Director Paul Romary, and Director of Labor Relations Jennifer Foley. Although Booker brought her retaliati o n claims under both 4 state and federal law, the parties have not suggested that the state and feder a l antiretaliation provisions differ in any way materi a l t o t he issues on appeal. Therefore, we focus our analysis on the standards for retaliation under Title VII and do -7- r e s p onsibilities. However, Booker refused the mailroom training and resisted performing mailroom duties, viewing them as less prestigious than her other duties. As a result, she rarely covered the mailroom, filling in there for the first time on December 30, 2005. Finally, in June 2005, Booker was suspended for one day without pay following a confrontation with a campus police officer. The officer, hurrying to get to an assigned location at the hospital on time, exchanged his radio for the radio on Booker's desk, which had a belt clip. Raising her voice, she chastised him for taking her radio and called him derogatory names. People passing through the busy hospital lobby observed the incident.

I n O ctober 2005, Booker filed this action in federal district court against the Massachuse t ts Department of Public Health (DPH), the Executive Office of Health and Human S e r vices (EOHHS), and four individual defendants, including Nicosia. 3
Booker alleged, inter alia, that defendants retaliated against her for complaining about discriminatory withholding of cal l b a ck pay andf o r f i l i n gc o mp l a i n t s w i t ht h e M C A D , a n dt h a t t h e i n d i v i d ual 4not separatel y a nalyze the analogous retaliation provision under

state law, Mass. Gen. Laws ch. 151B, § 4(4). The court granted summary judgment in favor of defendants on 5 Booker's claims for racial discrimination, interfe r e n ce with the right to be free from discrimination, and aiding, abetting, inciting or compelling discrimination. Booker voluntarily dism i s s e dh e r c l a i m s f o r l i b e l a n di n t e n t i o n a l i n f l i c t i o n of emotional distress against all defendants, and d i s m issed her tortious interference claim against all defendants except Nicosia. Finally, the court dismissed all remaining claims against Romary, Foley and McMullen. -8- defendants intentionally interfered with her contractual employment relationships. Following pretrial dispositions not at issue in this appeal, Booke r p r o ceeded to trial on her retaliation claims 5 against DPH, EOHHS and Nicosia (hereafter, defendants), and her tortious interference claim against Nicosia.

At trial, the court instructed the jury as to the actions that Booker maintained were retaliatory:

[T]he written warning issued in January of 2004; the removal of the communications logbook from the desk wh ere she worked; the February 2004 incident involving Mr. Nicosia's reduction of her personal time for an unreported absence; the requirement that she sign for her time on the stewards' log rather than the communication dispatchers' log; the reduction in her police dispatching duties; her assignment to mailroom duties and training, and her one-day suspension in June of 2005. After a five

- d a y trial, the jury returned a verdict in favor of the defendants on all claims. The district court denied Booker's post-judgment motions for judgment as a matter of law and for a new trial. On app e a l, Booker contends, as she did in herThe n e x t p a r a g r a p ho f t h e i n s t r u c t i o n s d e s c r i b e dw h a t w e re 6 not adverse actions, though this portion of the instruction is not at issue: Adverse job actions do not include hurt

feelings, s u b j e c t i v e d isappointments, -9- motion for a new trial, that (1) the district court improperly instructed the jury on the required showing of a materially adverse action for purposes of her retaliation claim, and (2) the court erred in refusing to give a spoliation jury instruction. We address each contention in turn.
II. A. Retaliation Jury Instruction

At trial, the district court instructed the jury on the requisite showing of a materially adverse action under Title VII:

Under f e d e ral and state law, Ms. Booker must prove . . . by a preponderance of the evidence . . . that the desire to retaliate because of [her complaints of discrimination] was a motivating and determinative factor in any decision to alter Ms. Booker's terms and conditions of employment in a materially adverse manner . . . . An employment action to be adverse must materially change the terms and conditions of the plaintiff's employment. Examples the law gives include demotions, disadvantageous transfers or assignments, the loss of promotions, unwarranted negative evaluations,toleration of harassing conduct by coemployees, and reprisals intended to discourage other employees from complaining about unlawful practices or reprisals that might be perceived i n that way by other employees looking at them reasonably. (Emphasis added.) 6disillusionment over an employer's actions, or expected losses of job function or responsibilities because of a business or corporate reorganization. It also does not [in]clude everyday workplace banter or teasing, which all of us are familiar with. -10- Booker contends on appeal that this instruction misstated the legal standard applicable to her retaliation claim as set forth in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). First, she contends that the instruction erroneously required a showing that an adverse action affect the terms and conditions of her employment. Second, she argues that the final phrase in the exemplary list of adverse actio n s , beginning with "and reprisals," improperly r e quired her to demonstrate that the reprisals be intended to discourage, or reasonably be perceived as intended to discourage, employee complaints.

1. Standard of Review A party who objects to an instruction must "stat[e] distinctly the matter objected t o and the grounds for the objection." Fed. R. Civ. P. 51(c)(1). Under the procedure
outl i n e d i n R u l e 5 1 , b e f o r e t h e t r i a l c o u r t c h a r g e s t h e jury it must inform t h e parties of its proposed instructions and receive any objections. Fed. R. Civ. P. 5 1 ( b ); Surprenant v. Rivas, 424 F.3d 5, 15 (1st Cir. 2005). An objection made at that time "preserves the underlying issue for appeal." Surprenant, 424 F.3d at 15 (emphasis added) (citing Fed. R. Civ. P. 51(c)(2)(A)). If,The court's tentative instructions apparently were not made 7 part of the record. -11- however, a party is "not informed of an instruction or action on a request " d uring the precharge conference, the party may object "promptly after learning that the instruction or request will be, or has been, given or refused." Fed. R. Civ. P. 51(c)(2)(B). The requirements of Rule 51 "are not to be taken lightly" and "there is a high price to be paid for noncompliance." DeCaro v. Ha s b r o, Inc., 580 F.3d 55, 60 (1st Cir. 2009). Failure to comply with the rule ordinarily results in f o r f e iture of "the objection to which the failure relates," and we review forfeited objections only for plain error. Id. (citing Fed. R. Civ. P. 51(d)(2)). Our strict
enf o r c e m e n t o f t h e o b j e c t

- o r - f o r f e i t r u l e s e r v e s " t o c o mp el litigants to afford the trial court an opportunity to cure [a] defective instruction and to prevent the litigants from ensuring a new trial in the event of an adverse verdict by covertly relying on
the error." Flynn v. AK Peters, Ltd., 377 F.3d 13, 2 5 ( 1 s t Cir. 2004) (quotation marks and citation omitted).

In this case, the court d i s c ussed its tentative jury instructions with the parties at a sidebar conference held before the jury was charged. The court stated that it planned to add, at 7
the end of the adverse action instr u c t i o n, the phrase "Reprisals intended t o discourage other employees from complaining about unlawful practices." Booker's counsel objected, stating:-12- I am concerned that, as I h e a r d the instruction, that the employer intended to deter other employees, I don't think it's ne c e s sary that he intended to deter, so long as it was reasonably foreseeable that it would deter. In other words, I don't believe there is an intention requirement as to the deterrence. It's only that it be a deterrent. He must i n t end to retaliate but the effect must, in effect, deter a reasonable employee, not that he intended to deter others. . . . The Burlington Court, talked about and used language, "an adverse action consists of any action that may dissuade a reason[able] employee from engaging in protected activity." In response, the court noted that it "might add, 'Or reasonably
would have been perceived by the employe[e],' but I just don't want to turn this into a strict-liability tort." Booker's counsel did not voice any further objection. The court gave the modified instruction to the jury, stating that examples of adverse actions include "reprisa l s i ntended to discourage other employees from complaining about unlawful practices or reprisals that might be perceived in that way by other employees looking at them reasonably." (Emphasis a d ded.) The court held a sidebar conference after the charge, inviting any "[]new" objections, but Booker's counsel raised no objection to the instruction as given.

As this account makes clear, Booker never objected in the district court on the first ground s h e p resses on appeal -- that the instruction improperly stated that an adverse action must "materially change t h e terms and conditions of the plaintiff's employment." That objection is theref o r e f orfeited. See Boston-13-

Gas Co. v. Century Indem. Co., 529 F.3d 8, 19 (1st Cir. 2008) (holding that objection was forfeited where party made an objection to court's proposed instruction, but on groun d s u n related to the aspect it criticized on appeal).

Booke r d id object at the precharge conference on the ground that the tentative instruction improperly re q u i red that a
materi a l l ya dv e r s e a c t i o n b e i n t e n d e dt o d i s c o u r a g e e mp l o y ee complaints. However, the court then proposed adding instructional language to address Booker's concern, and Book e r did not object after being apprised of the court's proposed modification or after hearing the modified instruction given to the jury. The "purpose of a sidebar objection is to inform the judge exactly what he got wrong and what he should do to remedy the incipient harm." DeCaro, 580 F.3d at 61. By failing to object to the modified instruction either before or after the charge, Booker failed to inform the court that she believed the instruction w a s still problematic, specify the grounds for her objection, or give the court an opportunity to correct a n y error. Therefore, this objection is also forfeited. See, e.g., Kirk v. Reed Tool Co., 247 F. App'x 485, 486 (5th Cir. 2007) (per curiam) (unpublished) ("[W]hile [plaintiff] may have objected to the original jury charge, he did not object to the supplemental charge. Therefore, our review is only for plain error."); Cooney v. Booth, 28 F. App'x 148, 151 (3d Cir. 2002) (unpublished) (reviewing instruction for plain errorAlthough the cited opinions are unpublished, we rely on them 8 for their persuasive value. -14- because "absent a specific objection following the actual charge, [the court] had no way of knowing that its efforts to accommodate the general objection made at the [precharge] c o n f erence had not been wholly successful"). 8

Noting that Rule 51 was amended effective December 1, 2003, Booker argues that her objections were properly preserved under the amended rule. We have acknowledged that the 2003 amendments to Rule 51 made changes to the procedure for lodging objections. Under the former version of the rule, objections were not preserved unless they were "taken at sidebar after the trial j u d ge had charged the jury." Surprenant, 424 F.3d at 15 n.3 (emphasis added). Thus, even if a party pro p e r l y o b j ected to a proposed instruction prior to the jury charge and the court then gave the challenged instruction, that objection was forfeited unless the party renewed the objection after the jury charge. See, e.g., McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir. 1984). We
have also noted that the 2003 amendments "were designed in part to

eas e t h e b u r d e n o n p a r t i e s i n p r e s e r v i n gt h e i r o b j e c t i o n s to instructions where the district court had already made a definitive ruling, on the record, rejecting a request for a particular instruction." Colón-Millín v. Sears Roebuck De Puerto Rico, Inc., 455 F.3d 30, 40 n.7 (1st Cir. 2006). However, the 2003 amendmentsBooker also argues that she did not object at the postcharge 9 conference because the district court stated that i t would hear only "[]new" objections, and she had already object e dto the adverse action instruction at the precharge conference. However, Booker's earlier objectio n w as made to the court's tentative instruction, not to the revised instruction intended to accommodate her concerns, and t hus Booker's objection to the newly modified instruction would have been new. Moreover, counsel had a duty to object "even at the risk of incurring the displeasure of the trial court." Flynn, 377 F.3d at 25 (internal quotation marks and citation omitted). -15- d o n o t assist Booker here. Nothing in the amended rule suggests that a party may preserve a claim of error by objecting to a tentative instruction at the precharge conference, but then failing to object after the instruction is modified to accommodate the initial objection. 9

Therefore, we review the lega l s tandards stated in the jury instructions only for plain error. In doing so, we bear two precepts in mind. The first is that the district court has wide discretion over the particular w o r ds it chooses to convey those
stand a r d s . S e e J o h n s o n v . S p e n c e r P r e s s o f M e . , I n c . , 3 64 F.3d 368, 378 (1st Cir. 2004); Interstate Litho Corp. v. Brown, 255 F.3d 19, 29 n.11 (1st Cir. 2001). The second is that jury instructions
must be viewed as a whole. See Hopkins v. Jordan Marine, Inc., 271 F.3d 1, 4 (1st Cir. 2001).

2. Analysis
In order t o m a ke out her retaliation claim under Title VII, Booker had to show that "(1) she engaged in protected activity; (2) she suffered some materially adverse action; and (3)-16-

the adverse action was causally linked to her protected activity." Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73, 81 (1st Cir. 2007). In Burlington, the Court clarified the legal standard for the required showing of an adverse action under Title VII's antiretaliation provision. Burlington first addressed the question
of whether t h e a ntiretaliation provision "forbids only those employer actions and resulting harms that are related to employment or the workplace." 548 U.S. at 61. Recognizing that an employer

can effectively retaliate against an employee through actions "not directly related to his employment or by causing him harm outside the workplace," the Court held that Title VII's antiretaliation provision, unlike the statute's substantive antidiscrimination provision , " is not limited to discriminatory actions that affect the terms and conditions of employment." Id. at 63-64.

The Court next addressed the question of "how harmful an act of retaliatory discrimination must be in order to fall within the provision's scope." Id. at 61. The Cour t h e l d that the antiretaliation provision covers those "employer actions that would
have been mat e r i a l ly adverse to a reasonable employee," that is, actions that are "harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Id. at 57. Thus, whether an action is materially adverse is judg e d b yan objective rather than a subjective standard. Id. at 68-69.Though Booker claims that this clause of the instructions 10 imposed a h i g h e r b u r d e n o f p r o o f o n h e r t o s h o wa dv e r s e a c t i on, that is not necessarily the case. The clause could, for instance, be read to allow a jury to find liability based on intent without materiality, a standard that would lessen Booker's burden. -17- a. Instruction's Languag e R e g a r d i n g R e p r i s a ls "Intended to Discourage" Employees or Reasonably "Perceived in that Way" Relying on Burlington, Booker primarily challenges the final clause of the adverse action instruction, "reprisals intended to discourage other emp l oyees from complaining about unlawful practices or reprisals that might be perceived in that way by other employees looking at them reasonably."

Booker c l aims that the first clause -- "reprisals intend e d to discourage other employees" -- erroneously conflated
the adverse act i o n e l e m e nt of a Title VII claim, which she says
does not look to the e mp loyer's intent, with the retaliation element, w h ich considers the employer's retaliatory motive. She concludes that the instruction imposed a higher burden of proof on the adverse action element by requiring her to show that her employer's i n tent was to discourage other employees' complaints. Burlington, Booker says, only required her to show that the employer's actions might dissuade a reasonable e mp l oyee from complaining of discrimination.

While the language in this phrase of the instruction was awkward and created numerous potential issues, including some not

r a i s e d b y B o o k e r , w e c a n n o t s a y t h a t t h e i n s t r u c t i o n o n adverse 10-18-

action was error. When evaluating claims of error in jury instructions, our task is not to parse particular phrases, but to look at the instructions as a w hole in light of the relevant standard of review. Taken together, the adverse action instructions were not so clea r l ydivergent from the Burlington standard as to constitute plain error.

The challenged portion of the instruction was part of a longer sentence listing examples of materially adverse actions; it was not the lone basis given to the jury to understand the legal definition of an adverse action. Whatever objection there might be
to the c h a l l e n g e dp h r a s e o f t h e " r e p r i s a l s " p o r t i o n o f t he instruction, the instruction was saved by th e a lternative formulation at the end of the sentence: "or reprisals that might be perceived in that way by other employees looking at them reasonably."

Given its placement , t he likely reading of the final phrase (and the meaning ascribed to it by the district court) was that it referred to "reprisals that might be perceived in that way [that is, as discouraging complaints about unlawful practices] by other employees looking at them reasonably."

That interpretation accurately captures the Burlington standard: it conveys that the standard is an objective one, based on the vantage of a reasonable employee, and that the critical inquiry is whether the reprisals might deter a reasonable employee-19-

f r o mcomplaining of discrimination. That interpretation is also reinforced by the context of this phrase in relation to the rest of
the jury instructions: it immediately preceded a paragraph further explaining to the jury that adverse actions did not include things like "hurt feelings" and " s u bjective disappointments" that might dissuade a hyper-sensitive employee but would not deter a reasonable employee. Viewed as a whole, the adverse action instruction was not plainly e r r o neous. We do, though, recommend that instructions on retaliation hew more closely to Burlington and Dixon.
b
. Instruction's Language that " E m ployment A c t ion to be Adverse Must Change the Terms and Conditions" of Employment
Booker also contends that the adverse action instruction erroneously stated that an adve r s e a ction must "change the terms
and c o n d i t i o n s o f t h e p l a i n t i f f ' s e mp l o ym e n t
. " H o w e v e r , w h i le Booker correctly notes that the antiretaliation provision of Title VII "is not limited to discriminatory actions that affect the terms and conditions of employment," Burlington, 548 U.S. at 64, the district court was entitled to ta i l or its instruction to the evidence presented at trial. Each of the allegedly ret a l iatory acts against Booker, including written warn i n g s , personal time allocation, modifications in payroll procedures, changes or reductions in job duties, and suspension without pay, were related to her employment and occurred at the workplace. Cf. Burlington,-20-

548 U.S. at 63-64 (ci t i n g examples of actionable retaliation causing harm "outside t h e workplace," including FBI's refusal to investigate death threats against employee and employer's filing of false criminal charges against former employee). On the facts of this case, the court properly confined its instruction to workplace-related actions. Therefore, we cannot say that t h is portion of the instruction was erroneous. B. Spoliation Jury Instruction

Booker next contends that the court erred in refusing to instruct the jurors that they could draw an adverse inference if they found that defendants destroyed documents relevant to Booker's claims. 1. Evidence and Requested Instruction on Spoliation

At trial, Booker cross-examined three hospital employees
about t heir deletion of email correspondence concerning Booker. Wong, who became Booker's immediate supervisor in the fall of 2004, testified that shortly after he began working at the hospital, he was informed that Booker had filed a n administrative complaint against the hospital and that it was possibl e h e c o u l d become a defendant, although he did not know the subject matter of her claims. Wong further testified that he regularly deleted all of the emails in his "sent" and "deleted" email folders every thirty days, and did not do anything in particular to preserve emails concerning Booker. Paul Romary, the hospital's executive director,-21-

testified that he received a copy of Booker's December 2003 letter of complaint. He explained that he received a h u n d r e d emails a day, some of which he deleted , and made no special effort to
p r e s erve his emails concerning Booker. Barbara McLaughlin, an executive vice president of t h e hospital and Wong's supervisor beginning in December 2005, testified that she n e v e r deleted any emails concerning Booker.

Prior to trial, Booker submitted a proposed jury instruction on the spoliation of evidence:

If the evidence indicates t h a t a party has destroyed records relevant to a pending lawsuit or that m a y be relevant to a lawsuit that could arise in the future, y o u may reasonably infer that the party probably did s o b e c a u s e t h e r e c o r d s w o u l dh a r mi t s c a s e. The non-destroying party need not have offered direct evidence of a cover-up for you to infer that t h e p a r t yw h o d e s t r o y e de v i d e n c e d i dso because the records were unfavorable to its position or would harm its case.
The court refused t o give the requested instruction, and Booker recorded her objection at the precharge conference. In its order denying Booker's motion for a new trial, the court again rejected Booker's claim that the jury should have been given the spoliation instruction. The court reasoned that "b e c a u s e Booker did not present any evidence at trial that Wong or defendants engaged in the deliberate spo[li]ation of evidence, no instruction on an adverse inference was merited. Indeed, such an instruction would have been misleading and prejudicial to defendants."-22- 2. Legal Framework on Spoliation Where a proper evidentiary foundation has been laid, "a trier of fact may (but need not) infer from a party's obliteration
of a d o cument relevant to a litigated issue that the contents of the document were unfavorable to that party." Testa v. Wal-MartStores, Inc., 144 F.3d 173, 177 (1st Cir. 1998); see also NationWide Check Corp., Inc. v. Forest Hills Distribs., Inc., 692 F.2d 214, 217-218 (1st Cir. 1982) (Breyer, J.). This adverse inference is based in part on the commonsense observation t h a t a party who "destroys a document (or permits it to be destroyed) when facing litigation, knowing the document's relevancy to issues in the case, may well do so out of a sense that the document's contents hurt his position." Testa, 144 F.3d at 177; accord Nation-Wide Check, 692 F.2d at 218. The inference is also b a s e d o n prophylactic and punitive rationales: it serves to deter litigants from destroying relevant evidence prior to trial and to penalize a party whose misconduct creates the risk of an erroneous judgment. Nation-Wide Check, 692 F.2d at 218.

Before an adverse inference can arise, the sponsor of the inference must lay an evidentiary foundation, proffering evidence sufficient to show that the party who destroyed the document "knew of (a) th e c laim (that is, the litigation or the potential for litigation), and (b) the document's potential relevance to that claim." Testa, 144 F.3d at 177; see also id. at 178 (noting thatWe note t h a t at the earlier precharge conference, in 11 response to Booker's objection t o its refusal to give the spoliation instruction, the court stated: "I think the law is clear that I don't have to instruct on that
. I just have to permit argument if there is a basis for it from the evidence." On appeal, the p a rties do not challenge the propriety of the court's suggestion that Booker could argue for an adverse inference to the jury. Therefore, we t ake no position on whether a court can prop e r ly decide that there is sufficient evidence to permit the -23- adequate foundation depends upon evidence of "institutional notice -- the aggregate knowledge possessed by a party and its agents, servants and employees"). A s poliation instruction is not warranted absent this threshold showing, because the trier of fact would have no basis for inferring that the destruction of documents stemmed from the party's consciousness that the documents would damage his case.

A "trial court's decision t o g ive or refuse an adverse inference instruc t i o n is reviewed for an abuse of discretion." Gilbert v. Cosco, 989 F.2d 399, 406 (10th Cir
. 1 993); see also United States v. St. Michael's Credit Union, 880 F.2d 579, 597 (1st Cir. 1989) (stating that trial court's decision to give or refuse missing witness instruction is committed to its sound discretion).

3. Analysis As an initial matter, Booker argues that the district court applied the wrong legal standard when it stated that because there was no evidence presented at trial that "Wong or defendants engaged in the deliberate spo[li]ation of evidence, no instruction
on an adverse inference was merited." However, we understand the 11parties to argue for an adverse inference to the jury, while at the

same time declining to give a spoliation instruction. In this case, our focus is on whether the court correctly concluded that the evidence at trial was insufficient to support a spoliation jury instruction. -24- district court's reference to "deliberate" spoliation as simply a shorthand for the evidentiary foundation required to support an adverse inference. In other words, the distr i c t c ourt concluded that Booker failed to make the required threshold showing that defendants destroyed emails (or permitted their destruction) while on notice of Booker's claims and the emails' potential relevance to those claims. Therefore, the jury would have no basis for inferring that defendants destroyed the emails "out of a sense that
the document's co n t e nts hurt [defendants'] position," and so a spoliation instruction was not warranted. Testa, 144 F.3d at 177; see also Nation-Wide Check, 692 F.2d at 219.

Booker further contends that the court erred in finding that she failed to lay an adequate foundation for a spoliation instruction. She contends that she produced sufficient evidence at trial to prove that at the time defendants deleted the emails (or permitted their destruction), they had knowledge both of her claims against them and of the e m a ils' potential relevance to those claims. We conclude that the court did not abuse its discretion in concluding that the evidence at trial was insufficient to merit a spoliation instruction. Booker present e d no evidence that-25-

McLaughlin deleted any emails concerning her, whether potentially
relevan t o r not. Indeed, McLaughlin testified repeatedly that although she sometimes deleted emails, she never deleted any emails concerning Booker. Booker did e l i c i t testimony from Wong and Romary that they regularly deleted th e i r emails and may have deleted some concerning her. However, she prof f e r e dno evidence that any of those emails were even potentially relevant to her claims in this case, or that defendants knew of their potential relevance. Although permitted to cross-examine Wong and Romary about their deletion of emails, Booker did not question either witness about the content of the deleted emails or about whether the emails were relevant to her claims.

Furthermore, unlike many spoliation cases, this is not a case in which a document's potential relevance to the plaintiff's claims is apparent from the nature of the missing document itself. See, e.g., Testa, 144 F.3d at 177 (finding notice of potential relevance where company destroyed purchase orde r f or delivery on date of plaintiff's injury, and company's "defense from the start was anchored on the premise that it had no reason to anticipate any delive r i es on the day in question"); Blinzler v. Marriot Int'l, Inc., 81 F.3d 1148, 1158-59 (finding notice of potential relevance
where hotel destroyed log of outgoing phone calls from day of hotel guest's death, and hotel knew of guest's death and of plaintiffBooker also notes that Wong testifi e d t h a t he discarded a 12 United States Coast Guard Manual, which, she contends, was relevant to her claims beca u s e h e relied on it for his decision to reallocate police dispatching duties at the hospital. However, the manual was not unique and, to t h e extent it was relevant, Booker could have obtained a copy of the publication from the Coast Guard. The court did not abuse its discretion in not permitting an adverse inference based on the discarded manual. -26- s p o u se's "persistent attempts" to discover when the hotel placed the call for emergency aid).

In sum, Booker produced evidence showing merely that two
hos p i t a l employees, Wong and Romary, routinely deleted their emails, some of which may hav e c oncerned her. She produced no evidence that defendants destroyed emails with knowledge that the emails were potentially relevant to her claim s in this case.
Becaus e Booker failed to establish the required evidentiary foundation for an adverse inference, the court properly concluded that a spoliation instruction was not warranted. 12
III. For the foregoing reasons, the judgment is affirmed.