Buckley v. Mukasey

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARY E. BUCKLEY, 

Plaintiff-Appellant,

v.

MICHAEL B. MUKASEY, in his official  No. 07-1195

capacity as Attorney General of the

United States, Department of

Justice,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(1:06-cv-00420-TSE)

Argued: March 18, 2008

Decided: August 20, 2008

Before KING and DUNCAN, Circuit Judges,

and Jane R. ROTH, Senior Circuit Judge of the United States Court

of Appeals for the Third Circuit, sitting by designation.

Vacated and remanded by published opinion. Judge King wrote the

opinion, in which Judge Duncan and Senior Judge Roth joined.

COUNSEL

ARGUED: Paul Reinherz Wolfson, WILMER, CUTLER, PICKER-

ING, HALE & DORR, L.L.P., Washington, D.C., for Appellant.

2 BUCKLEY v. MUKASEY

Kevin Jason Mikolashek, Assistant United States Attorney, OFFICE

OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for

Appellee. ON BRIEF: Danielle Conley, Sarah Adams Zumwalt,

WILMER, CUTLER, PICKERING, HALE & DORR, L.L.P., Wash-

ington, D.C., for Appellant. Chuck Rosenberg, United States Attor-

ney, Alexandria, Virginia, for Appellee.

OPINION

KING, Circuit Judge:

In this action under Title VII of the Civil Rights Act of 1964, Mary

Buckley alleged a variety of race discrimination, sex discrimination,

and retaliation claims stemming from her employment as a special

agent with the Drug Enforcement Administration (the "DEA").1 Dur-

ing a five-day trial conducted in the Eastern District of Virginia in the

fall of 2006, the district court granted judgment as a matter of law to

the government on Buckley’s failure-to-promote retaliation claim, and

the jury found in favor of the government on all remaining claims.

Thereafter, Buckley unsuccessfully sought a new trial on three

grounds: (1) that the district court improperly restricted the introduc-

tion of evidence, relevant to Buckley’s theory of retaliatory animus,

regarding a separate, ongoing race discrimination action against the

DEA in which Buckley was a class member; (2) relatedly, that the

court erred in awarding judgment as a matter of law to the govern-

ment on her failure-to-promote retaliation claim; and (3) that the court

wrongly refused to give an adverse inference instruction against the

government for spoliation of evidence. Buckley has appealed, and, as

explained below, we vacate and remand for further proceedings.

1

This action was brought against Alberto R. Gonzales, in his former

capacity as Attorney General of the United States. Gonzales has since

been replaced by current Attorney General Michael B. Mukasey. We

refer herein to the defendant as the "government."

BUCKLEY v. MUKASEY 3

I.

A.

Buckley, an African-American woman, joined the DEA as a spe-

cial agent in 1974 and has now retired. During her thirty-two-year

career as a special agent, she held a variety of positions within the

DEA, including undercover, international, and supervisory posts. She

also received awards for distinguished service and a series of perfor-

mance appraisals rating her work for the DEA as excellent.

1.

In 1977, a class action — known as the "Segar litigation" — was

filed in the district court for the District of Columbia, alleging race

discrimination by the DEA against African-American special agents,

in contravention of Title VII. The Segar litigation was brought on

behalf of, inter alia, all African-American special agents currently

serving with the DEA (including Buckley). Following a bench trial,

the Segar court determined, in 1981, that the defendants had indeed

discriminated against African-American special agents in various

ways, including reliance on subjective evaluations by supervisors to

award promotions. See Segar v. Civiletti, 508 F. Supp. 690 (D.D.C.

1981). Thus, in 1982, the court entered an order enjoining the defen-

dants from discriminating against African-American special agents in

promotions and mandating implementation of a nondiscriminatory

promotion system. See Segar v. Smith, No. 1:77-cv-00081, 1982 WL

214 (D.D.C. Feb. 17, 1982) (the "Segar 1982 Order").

Thereafter, in 1992, the DEA implemented a new system for spe-

cial agent promotions to positions at the GS-14 and -15 grades. The

new system relied on an evaluation process called the Special Agent

Promotion Process (the "SAPP"). Candidates scoring high on the

SAPP were placed on a Best Qualified List (the "BQL"). Then, the

upper-level supervisor over the vacancy in question could submit a

"Short List" to the DEA’s Career Board (comprised of ten senior

DEA officials) of the top three candidates from the BQL in order of

preference. Finally, the Career Board selected a special agent for the

position, usually from the Short List.

4 BUCKLEY v. MUKASEY

In 1997, the plaintiffs in the Segar litigation filed a motion for a

compliance order, alleging that African-American special agents con-

tinued to suffer from race discrimination under the new promotion

system. In 1999, the Segar court granted the motion for a compliance

order in part, enjoining use of the Short List for promotions to GS-14

and -15 positions, pending a showing that its use could be validated

as consistent with the DEA’s obligations under Title VII. See Segar

v. Reno, No. 1:77-cv-00081 (D.D.C. Sept. 27, 1999) (the "Segar 1999

Order").2 When nearly 130 managerial positions subsequently went

unfilled, the parties entered into a joint stipulation — approved by the

court — permitting temporary use of the Short List for promotions to

GS-14 and -15 positions, subject to certain terms and conditions. See

Segar v. Reno, No. 1:77-cv-00081 (D.D.C. Jan. 4, 2000) (the "Segar

2000 Interim Order").3

2.

In the spring of 2001, Buckley, then a GS-14 special agent

assigned to the Office of Inspections in the DEA’s Inspection Divi-

sion, was temporarily promoted to Senior Inspector in the Office of

Inspections’s Internal Review and Audit Section, a GS-15 position.4

Buckley’s immediate supervisor was Gloria Woods, head of the

Office of Inspections, and Woods in turn reported to William Brown,

the Acting Chief Inspector (i.e., head of the Inspection Division). In

2

A portion of the Segar 1999 Order is found at J.A. 27-32. (Our cita-

tions to "J.A. ___" refer to the contents of the Joint Appendix filed by

the parties in this appeal.)

3

As of the time the parties filed their appellate briefs herein, the Segar

2000 Interim Order was still in effect. The Segar 2000 Interim Order is

found at J.A. 17-26.

4

The facts spelled out herein with respect to Buckley’s employment

with the DEA are largely drawn from the trial record. Where relevant to

Buckley’s failure-to-promote retaliation claim — on which the govern-

ment was granted judgment as a matter of law — the facts are recited in

the light most favorable to Buckley. See Int’l Ground Transp., Inc. v.

Mayor of Ocean City, Md., 475 F.3d 214, 216 n.2 (4th Cir. 2007)

("Because the district court granted judgment as a matter of law, we must

view the facts — and we recite them here — in a light most favorable

to [the non-moving party].").

BUCKLEY v. MUKASEY 5

her temporary Senior Inspector position, Buckley supervised the sec-

tion responsible for coordinating reviews of the DEA by the General

Accounting Office (the "GAO").

a.

On June 11, 2001, a GAO representative contacted the DEA about

conducting a study of the DEA’s hiring, promotion, and discipline

systems at the request of Congresswoman Eddie Bernice Johnson, a

member of the Congressional Black Caucus. Cynthia Ryan, Chief

Counsel for the DEA, informed the GAO representative that the sys-

tems in question were already the subject of the ongoing and "still

very active" Segar litigation. J.A. 62. Buckley, Woods, and Brown

were forwarded a copy of an email message from Ryan recounting

her conversation with the GAO representative, during which the GAO

representative expressed, in the words of Ryan, that she intended "to

recommend against initiating this GAO investigation," because the

"GAO avoids investigating an area which is the subject of current liti-

gation." Id. In an ensuing exchange by email, Brown suggested there

might be issues that the DEA would need to look into in response to

the GAO inquiry. Buckley then responded to Brown, on June 11,

2001, as follows:

I do think there should be additional information in event

the GAO (intended) study has no reflections on the [Segar]

litigation that [Ryan] mentioned. I think that if it does

involve the Congressional Black Caucus, their conclusion

will be that DEA is using stalling tactics or have something

to hide. In my opinion, GAO’s conclusion would have no

bearing on any pending litigation.

Id. at 61 ("Email 1").

Thereafter, the GAO asked to meet with DEA representatives in

order to gather more information for a response to Congresswoman

Johnson’s request. On June 18, 2001, Buckley sent the following

email message to Ryan and Brown:

As you are probably already aware, GAO has made a 2nd

request for a meeting with selected DEA staffers. The pur-

6 BUCKLEY v. MUKASEY

pose of the meeting is to get an understanding of issues sur-

rounding discrimination, hiring, promotions and disciplinary

actions against black agents in DEA. GAO understands

[Ryan’s] position. However, GAO isn’t familiar with the

whole situation, therefore needs to make a determination as

to how GAO can adequately address Eddie Bernice John-

son’s request and, what aspects, if any, that GAO can look

into in order to address [the Congressional Black Caucus]

request.

J.A. 49 ("Email 2"). Email 2 stated that "[p]resent at this meeting will

be," among others, representatives of the Segar plaintiffs’ steering

committee (the Equal Employment Opportunity Monitoring Commit-

tee, or "EEOMC"), Ryan, and several other specified DEA officials.

Id. In addition to Ryan and Brown, Email 2 was sent to Rosalynde

Fenner, head of the EEOMC, and two more EEOMC members. As

such, Ryan viewed Email 2 as an effort by Buckley, acting on her

own accord, to involve the EEOMC in the initial DEA-GAO meeting.5

5

DEA Chief Counsel Ryan, testifying in her pretrial deposition, stated

that she deemed it "inappropriate" for Buckley to invite EEOMC repre-

sentatives to the initial DEA-GAO meeting, J.A. 316, and that she was

concerned about a "direct overlap" between the proposed GAO study and

the ongoing Segar litigation, including the possibility that documents

would be handed over to the GAO that had not been produced in discov-

ery in the Segar litigation, id. at 312-13. According to Ryan, she sus-

pected that the Segar plaintiffs knew about the impending GAO study

before the DEA did (and perhaps were behind Congresswoman John-

son’s request for the study) — a suspicion grounded, in part, on Buck-

ley’s ready familiarity with Congresswoman Johnson and the

Congressional Black Caucus. See id. at 318-19. Ryan testified that

my concern about this, I think it’s become sort of revealed . . .

that they [the Segar plaintiffs] have asked for this through the

Congressional Black Caucus, and I could maybe even guess

why.

They were getting maybe a little bit frustrated with the court

not being as fast as they think it should be in resolving some of

their issues.

So fine, . . . but here, my concern with this is now how do I

proceed?

BUCKLEY v. MUKASEY 7

Email 2 closed by stating that "[t]he meeting will take place FRI-

DAY, June 22, 2001, 9:30 a.m. in IN’s conference room on the 4th

floor West building. Thanks . . . ." J.A. 49. The Email 2 recipients

were notified on June 21, 2001, however, that the June 22 meeting

with the GAO had been cancelled. Shortly thereafter, Brown sent an

email message to Woods saying that he had "heard from several peo-

ple that the way this meeting was handled by Mary Buckley and her

staff was non-standard and aggravating," in that "[t]he meeting was

agreed to and set-up with an outside agency, committing DEA partici-

pation at high levels without the courtesy of checking with them to

see if the meeting agreed with their respective schedules." Id. at 50.

Brown criticized Email 2 for constituting "a directive to attend the

scheduled meeting rather than a message of coordination regarding a

proposed meeting." Id. Brown also admonished that "[o]ur job in the

Inspection Division is to facilitate contacts with outside agencies so

that they can conduct their studies and audits. Our job is not to direct

participation or to mandate attendance at such meetings." Id.

b.

In July 2001, the DEA posted two GS-15 position openings, "Va-

cancy 365" (the permanent position in which Buckley was then tem-

porarily serving) and "Vacancy 364." Buckley applied for each of the

positions, and was among thirty-three candidates on the BQL for

Vacancy 365 and thirty-one candidates on the BQL for Vacancy 364.

I’ve got [Buckley,] a plaintiff class member[,] who is now

going to be, seems to be shepherding the GAO request, . . . and

she’s invited the EEOMC for an entrance visit which is supposed

to be with agency, not with plaintiff class representatives.

Id. at 319-20. Ryan, who saw the GAO study "as another avenue of dis-

covery" in the Segar litigation, suggested that Buckley was acting out-

side her normal job responsibilities in personally coordinating the study.

Id. at 321-22. After receiving Email 2, Ryan met with William Simpkins,

the DEA’s Acting Deputy Administrator, and told him that she "was con-

cerned . . . that we might have this conflict of interest . . . that the

EEOMC had been involved, that Mary Buckley had set up this meeting

and invited the EEOMC," and also that she "was concerned about . . . the

two paths crossing at this point." Id. at 328-29.

8 BUCKLEY v. MUKASEY

As Acting Chief Inspector, Brown was responsible for creation of

the Short Lists for vacancies in the Inspection Division. Brown tasked

Woods with the creation of the Short Lists for Vacancies 365 and

364, and Woods placed Buckley on the Short List for each, ranked

first for Vacancy 365 and second for Vacancy 364.6 Brown later

informed Woods, however, that William Simpkins — who had been

named Chief Inspector but was then serving as the DEA’s Acting

Deputy Administrator (and, thus, the Chairman of the Career Board)

— wanted Buckley’s name removed from the Short Lists. Brown and

Woods met with Simpkins, who criticized Buckley’s speaking, writ-

ing, and interpersonal skills. When Woods became upset by his com-

ments, Simpkins suggested that Woods and Brown discuss the matter

between themselves. In the subsequent conversation between Woods

and Brown, Woods defended Buckley and asserted that she had done

an outstanding job in her temporary post. Brown nevertheless urged

Woods to remove Buckley’s name from the Short Lists, expressing

concern that the vacancies would remain unfilled in view of Simp-

kins’s opposition to Buckley’s candidacy. Woods then removed

Buckley’s name from each of the Short Lists before submitting them

to the Simpkins-led Career Board. On August 9, 2001, the Career

Board selected from the Short Lists an African-American man for

Vacancy 365 and a white man for Vacancy 364.7

A few days later, on August 13, 2001, Brown sent a memorandum

to Woods, in which he criticized Buckley’s performance during a July

9, 2001 interagency briefing presented by the Office of Inspections to,

among others, Simpkins and Brown. Brown wrote to Woods that,

6

According to Woods, she believed Buckley to be the most qualified

candidate for both positions. She nevertheless listed Buckley second on

the Short List for Vacancy 364, because she believed that Buckley would

be selected to fill Vacancy 365.

7

Simpkins’s involvement in the creation of the Short Lists for Vacan-

cies 365 and 364 arguably contravened a term and condition of the Segar

2000 Interim Order, instructing that each Short List be provided to

Career Board members only on the day of the Board’s meeting. The gov-

ernment has defended Simpkins’s involvement with the Short Lists for

Vacancies 365 and 364 as consistent with the Segar 2000 Interim Order,

in light of the fact that he had been named (though was not yet serving

as) Chief Inspector, i.e., the upper-level supervisor over the vacancies in

question.

BUCKLEY v. MUKASEY 9

[f]ollowing the briefing[,] we had an opportunity to discuss

the briefing with Acting Administrator Simpkins. He

expressed his displeasure to you with the briefing and was

particularly dissatisfied with the apparent lack of under-

standing and knowledge exhibited by Acting Senior Inspec-

tor Buckley[, as well as another briefer]. After you left

Acting Administrator Simpkins’ office he directed me to

document the shortcomings of the briefings to you in a

memorandum.

J.A. 101. Brown acknowledged in the memorandum that Buckley had

not expected to serve as a briefer and thus had a limited opportunity

to prepare. Nevertheless, Brown also expressed his and Simpkins’s

criticism of Buckley, who was responsible for the program at issue in

the briefing, for "deferr[ing] repeatedly to subordinates when attempt-

ing to answer questions" and for "g[iving] the impression that she was

not familiar with the subject matter." Id. at 102.

That same day, August 13, 2001, Buckley sent an email message

to Fenner, head of the EEOMC, memorializing a discussion between

Buckley and Simpkins about why Buckley was denied a promotion.

According to Buckley, Simpkins "stated a lot of things," including

that Buckley "was not the best of the best qualified." J.A. 103. Simp-

kins specifically cited Buckley’s handling, via Email 2, of the sched-

uling of the DEA-GAO meeting, as well as her performance during

the recent interagency briefing. In Buckley’s view, "[t]he bottom line

[was that Simpkins] was upset about the GAO report that Cindy Ryan

complained about," i.e., the GAO’s impending study of the DEA’s

hiring, promotion, and discipline systems. Id.

3.

On August 28, 2001, Buckley consulted with a DEA equal employ-

ment opportunity ("EEO") counselor about the DEA’s failure to pro-

mote her. On August 31, 2001, Buckley was among several GS-14

and -15 special agents notified that they were subject to being trans-

ferred from DEA headquarters in northern Virginia to a field office,

as part of a regular agency transfer process. On October 4, 2001,

Buckley filed an internal EEO complaint with the Department of Jus-

tice, alleging that her removal from the Short Lists for Vacancies 365

10 BUCKLEY v. MUKASEY

and 364, as well as the threatened transfer from DEA headquarters to

a field office, were based on her race and sex and were retaliatory. On

February 14, 2002, Brown downgraded Buckley’s annual perfor-

mance rating from "Outstanding" to "Acceptable." On April 4, 2002,

Buckley was permitted to amend her EEO complaint to contest the

downgrading of her appraisal. In May 2002, the Career Board (with

Simpkins abstaining) voted to transfer Buckley to the Miami field

office.8

B.

On May 25, 2004, after exhausting her administrative remedies and

being issued a right-to-sue letter, Buckley initiated this action in the

District of Columbia. On March 17, 2005, she filed in that court an

Amended Complaint alleging that the government contravened Title

VII by removing her from the Short Lists for Vacancies 365 and 364

(the "failure to promote"); transferring her to the Miami field office

(the "geographic reassignment"); and downgrading her February 2002

performance appraisal (the "negative review"). Buckley asserted that

each of these actions was racially and sexually discriminatory, as well

as retaliatory. On March 21, 2006, the District of Columbia court

transferred Buckley’s Title VII claims to the Eastern District of Vir-

ginia on venue grounds. See Buckley v. Gonzales, No. 1:04-cv-00841

(D.D.C. Mar. 21, 2006) (the "Buckley Transfer Order").9

8

In June 2003, the GAO issued a report to Congresswoman Johnson

on its study of the hiring, promotion, and discipline systems at the DEA.

See J.A. 151. Among the GAO’s findings were that, during fiscal years

1997 through 2001, "African American and Hispanic special agents were

recommended for promotion at significantly lower rates," but that,

"[d]espite differences in recommendation rates, DEA’s promotion deci-

sions mirrored the race, ethnic, and gender makeup of the agency’s spe-

cial agent workforce." Id. at 152.

9

In her Amended Complaint, Buckley had also asserted three civil con-

tempt claims on the theory that, by way of the conduct involved in her

Title VII claims, the government violated the Segar 1982 Order and the

Segar 2000 Interim Order. By the Buckley Transfer Order, the District of

Columbia court dismissed the civil contempt claims without prejudice,

explaining that they needed to be raised in the Segar litigation itself. The

Buckley Transfer Order is found at J.A. 241-44.

BUCKLEY v. MUKASEY 11

1.

Buckley’s trial in the Virginia district court commenced on Octo-

ber 30, 2006.10 During preliminary proceedings, the district court

sought to clarify the theories underlying Buckley’s Title VII retalia-

tion claims.11 The court concluded that Buckley could proceed on the

10

Prior to trial, on October 20, 2006, the district court awarded sum-

mary judgment to the government on Buckley’s failure-to-promote race

claim, insofar as Buckley was excluded from consideration for Vacancy

365, because another African-American candidate was selected for that

position. Buckley does not contest such summary judgment award in this

appeal. By the time of trial, Buckley’s geographic-reassignment and

negative-review race and sex claims were also apparently out of the case.

11

The district court accepted — as do we (with the government’s

acquiescence) — that a federal employee, like Buckley, may pursue a

retaliation claim under Title VII. See Baqir v. Principi, 434 F.3d 733,

747 n.16 (4th Cir. 2006) (assuming that federal employee’s retaliation

claim was cognizable, but recognizing that relevant Title VII provision,

42 U.S.C. § 2000e-16, does not explicitly provide for such cause of

action); see also Gomez-Perez v. Potter, 128 S. Ct. 1931, 1941 n.4

(2008) (acknowledging, but declining to decide, open question of

"whether Title VII bans retaliation in federal employment"). In assessing

the theories underlying Buckley’s retaliation claims, the district court

looked to the Title VII provision prohibiting private-sector retaliation, 42

U.S.C. § 2000e-3(a). That provision recognizes two categories of pro-

tected activity: (1) "opposition," i.e., "oppos[ing] any practice made an

unlawful employment practice"; and (2) "participation," i.e., "ma[king]

a charge, testif[ying], assist[ing], or participat[ing] in any manner in an

investigation, proceeding, or hearing." § 2000e-3(a). The district court

required Buckley to show, in order to establish a prima facie case of

retaliation, that she engaged in a protected activity, that the government

took a materially adverse action against her, and that a causal relation-

ship existed between her protected activity and the government’s action.

See Lettieri v. Equant Inc., 478 F.3d 640, 650 & n.2 (4th Cir. 2007) (cit-

ing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)

(holding that "a plaintiff must show that a reasonable employee would

have found the challenged action materially adverse, [meaning] it well

might have dissuaded a reasonable worker from making or supporting a

charge of discrimination" (internal quotation marks omitted))). The gov-

ernment took issue below with the district court’s approach to Buckley’s

retaliation claims, but does not challenge it in this appeal.

12 BUCKLEY v. MUKASEY

premise that the government retaliated against her for having engaged

in protected "participation" activities, with relation to both her 2001

internal EEO complaint and her involvement in the Segar litigation.

Nevertheless, the court only reluctantly accepted Buckley’s Segar liti-

gation theory: that the government’s retaliatory animus — especially

with regard to the failure to promote — was prompted by Buckley’s

active participation in the ongoing Segar litigation (as compared to

passive membership in the plaintiff class), including her self-directed

effort, via Email 2, to include the EEOMC in the initial DEA-GAO

meeting. For support of this theory, Buckley pointed to the pretrial

deposition testimony of DEA Chief Counsel Ryan, revealing that she

had shared her concerns about Buckley’s Email 2-related conduct

with Acting Deputy Administrator Simpkins, a key decisionmaker

with respect to Buckley’s subsequent nonpromotion. See supra note

5. The district court permitted Buckley to attempt to demonstrate that

Simpkins or another decisionmaker knew of (and was motivated by)

her active participation in the Segar litigation, though the court

expressed doubt that Buckley could demonstrate such a causal rela-

tionship between her protected activity and nonpromotion.12

Despite the district court’s belief that Buckley faced difficulties in

proving the Segar litigation theory of retaliatory animus, the court

limited the evidence that could be presented to the jury with respect

to the Segar litigation, invoking several provisions of the Federal

Rules of Evidence. The court — having characterized the Segar liti-

gation as "ancient history" by the summer of 2001, when the events

complained of began, J.A. 398 — admonished Buckley not to name

the Segar litigation or describe its history, including any past findings

of discrimination. Rather, the court merely gave allowances that "you

may ask and you may say to the jury that you intend to show that the

retaliatory conduct was based, in part, on her being active in . . .

ongoing litigation against the DEA for race . . . discrimination, and

we’ll deal with it in the [Federal Rule of Civil Procedure] 50 stage."

Id. at 405. The court also permitted evidence on the requirements of

the DEA’s GS-14 and -15 promotion system and its purpose of ensur-

12

Buckley had also contended during the preliminary proceedings that

her statements in Email 1 constituted protected "opposition" activity.

Although the district court expressed skepticism about this theory, the

court allowed Buckley to proceed on it.

BUCKLEY v. MUKASEY 13

ing equal opportunity, but barred mention that the promotion system

was governed by the Segar 2000 Interim Order.

Finally during the preliminary proceedings, the district court

denied Buckley’s request for an adverse inference instruction against

the government for spoliation of evidence. Buckley’s request was

based on the DEA’s destruction of electronic documents (including

email messages), pursuant to routine internal procedures, from the

time the government could reasonably anticipate this litigation until

nearly two weeks after its discovery responses to Buckley were due.

In refusing the adverse inference instruction, the court ruled that

Buckley had failed to make a requisite showing of "willful conduct,"

rather than mere negligence. J.A. 407. The court also suggested that

it was proper for the DEA to "continue[ ] its routine document recy-

cling protocols" since "[n]o order was entered to the contrary," id.,

and cited Buckley for her own "negligence or inattention" in failing

to obtain such an order, id. at 408. Additionally, the court indicated

that an adverse inference instruction would be improper for the reason

that Buckley failed to identify "any specific document or set of docu-

ments which someone says would typically have said something that

the plaintiff[ ] now say[s she] should have an inference that it did say

that." Id. at 408-09. The court concluded that "[s]imply an adverse

inference that these documents would reflect adversely on defendant’s

case . . . paints with too broad a brush. So I’m going to deny the

request for an adverse inference" instruction. Id. at 409.

2.

Following the preliminary trial proceedings, during Buckley’s

case-in-chief, DEA Chief Counsel Ryan was called as a witness and

questioned within the limitations set forth by the district court. Ryan

testified about her concerns over Buckley’s conflicting roles as the

DEA liaison for the GAO study and as a plaintiff class member in the

Segar litigation (referred to in front of the jury as, e.g., "some active

litigation"). See J.A. 488-501. Ryan’s testimony was similar to that

given during her pretrial deposition. For example, Ryan again testi-

fied at trial about sharing her concerns with Acting Deputy Adminis-

trator Simpkins. As compared to her deposition testimony, however,

Ryan’s trial testimony was appreciably circumscribed — apparently

as a result of the district court’s limitations on discussion of the Segar

14 BUCKLEY v. MUKASEY

litigation. During the government’s presentation, neither Simpkins

nor Acting Chief Inspector Brown testified to having any knowledge

during the relevant time period that Buckley was actively involved in

the Segar litigation.

Before the case was submitted to the jury, the government made a

motion, pursuant to Federal Rule of Civil Procedure 50, for judgment

as a matter of law. The district court granted the government’s Rule

50 motion with respect to Buckley’s failure-to-promote retaliation

claim. The court premised its ruling on, inter alia, the lack of a legally

sufficient evidentiary basis to find that the relevant decisionmakers

(Simpkins and Brown) knew that Buckley was an active participant

in the Segar litigation, rather than simply a passive member of the

plaintiff class. The court rejected Buckley’s reliance on Ryan’s testi-

mony to establish Simpkins’s knowledge, characterizing that testi-

mony as "too slender a reed to permit the jury to speculate on whether

Mr. Simpkins . . . knew that [Buckley] was . . . more than a member

of the class." J.A. 605.13

Thereafter, on November 3, 2006, the remaining claims — for fail-

ure to promote based on race (Vacancy 364 only) and sex (Vacancies

365 and 364), and for retaliatory negative review — were submitted

to the jury. Later that same day, the jury returned a verdict in the gov-

13

In granting the government’s Rule 50 motion on Buckley’s failure-

to-promote retaliation claim, the district court also rejected the theory

that Email 1 constituted protected opposition activity. See supra note 12.

The court further rejected an assertion by Buckley that the government

had contravened the Segar 2000 Interim Order, by way of Acting Deputy

Administrator Simpkins’s involvement in the creation of the Short Lists

for Vacancies 365 and 364 despite his membership on the Career Board,

and that this violation was itself proof of retaliation. See supra note 7.

Additionally, the court awarded Rule 50 judgment to the government on

Buckley’s geographic-reassignment retaliation claim, on the ground that,

inter alia, Buckley failed to demonstrate that her transfer to the Miami

field office constituted a materially adverse action. See supra note 11.

Notably, however, the court accepted that the failure to promote (i.e., the

removal of Buckley from the Short Lists for Vacancies 365 and 364) and

the negative review (i.e., the downgrading of Buckley’s 2002 perfor-

mance appraisal) could be deemed as materially adverse actions. The

parties do not contest any of those rulings herein.

BUCKLEY v. MUKASEY 15

ernment’s favor, and the district court entered judgment against Buck-

ley.

3.

On November 20, 2006, Buckley filed a motion for a new trial,

pursuant to Federal Rule of Civil Procedure 59. She contended, inter

alia, that the district court had erred in limiting discussion at trial of

the Segar litigation, in granting Rule 50 judgment as a matter of law

on her failure-to-promote retaliation claim, and in refusing to give an

adverse inference instruction against the government for spoliation of

evidence. By order of December 28, 2006, the court denied Buckley’s

Rule 59 new trial motion. See Buckley v. Gonzales, No. 1:06-cv-

00420 (E.D. Va. Dec. 28, 2006) (the "Buckley Post-trial Order").14

The court explained therein that it had properly limited discussion of

the Segar litigation at trial, because further information on the litiga-

tion was inadmissible under the Federal Rules of Evidence. See id. at

6-8. Next, the court concluded that it had appropriately granted the

government’s Rule 50 motion on Buckley’s failure-to-promote retali-

ation claim, in that she "failed to produce any evidence that Ryan’s

concerns [over Buckley’s conflicting roles as the DEA liaison for the

GAO study and as a plaintiff class member in the Segar litigation]

were communicated to the actual decisionmakers," and, thus, "there

was no evidence in the record to allow a reasonable jury to find the

requisite causal connection" between Buckley’s active participation in

the Segar litigation and her nonpromotion. Id. at 8. Finally, the court

reiterated its earlier ruling that Buckley was not entitled to an adverse

inference instruction against the government for spoliation of evi-

dence, because she failed to show that the "destruction of documents

was a result of intentional conduct." Id. at 9 (internal quotation marks

omitted).

Buckley timely noted this appeal, and we possess jurisdiction pur-

suant to 28 U.S.C. § 1291.

14

The Buckley Post-trial Order is found at J.A. 612-20.

16 BUCKLEY v. MUKASEY

II.

In this appeal, Buckley contends that the district court erred in

denying her a new trial on the three grounds discussed above: (1) the

restriction of trial evidence with respect to the Segar litigation; (2) the

award of judgment as a matter of law to the government on her

failure-to-promote retaliation claim; and (3) the denial of her request

for an adverse inference instruction against the government for spolia-

tion of evidence. We review the court’s denial of Buckley’s new trial

motion, made pursuant to Federal Rule of Civil Procedure 59, for

abuse of discretion. See Bryant v. Aiken Reg’l Med. Ctrs. Inc., 333

F.3d 536, 543 (4th Cir. 2003). On Buckley’s Rule 59 motion, the

court should have granted a new trial only if "the verdict is against

the clear weight of the evidence," or "is based on evidence which is

false," or (as Buckley asserts with respect to the verdict in her trial)

"will result in a miscarriage of justice." Id. (internal quotation marks

omitted). We assess each of Buckley’s asserted grounds for a new

trial in turn.

A.

First, Buckley maintains that the district court improperly limited

the trial evidence with respect to the details of the Segar litigation.

We review the court’s decision to exclude such evidence for abuse of

discretion. See Schultz v. Capital Int’l Sec., Inc., 460 F.3d 595, 606

(4th Cir. 2006). By definition, the court abused its discretion if it

made an error of law. See RZS Holdings AVV v. PDVSA Petroleo

S.A., 506 F.3d 350, 356 (4th Cir. 2007). The court’s evidentiary rul-

ing, however, even if it constitutes an abuse of discretion, "is revers-

ible only if it affects [Buckley’s] substantial rights." Schultz, 460 F.3d

at 606-07 (citing Fed. R. Evid. 103(a)).

As the district court explained during the preliminary trial proceed-

ings and in the Buckley Post-trial Order, it limited discussion of the

Segar litigation under multiple provisions of the Federal Rules of Evi-

dence: Rule 401 (defining "‘[r]elevant evidence’ [as] evidence having

any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than

it would be without the evidence"); Rule 402 (providing that

"[e]vidence which is not relevant is not admissible"); Rule 404(a)

BUCKLEY v. MUKASEY 17

(generally prohibiting the admission of character evidence "for the

purpose of proving action in conformity therewith on a particular

occasion"); Rule 404(b) (providing that "[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person

in order to show action in conformity therewith[, but] may . . . be

admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake

or accident"); and Rule 403 (allowing that, "[a]lthough relevant, evi-

dence may be excluded if its probative value is substantially out-

weighed by[, inter alia,] the danger of unfair prejudice, confusion of

the issues, or misleading the jury").

During the preliminary trial proceedings, the district court observed

that Buckley sought to introduce evidence regarding the Segar litiga-

tion in order to establish "an environment of discrimination" within

the DEA. J.A. 396. The court characterized this justification for

admitting the evidence as "nothing but . . . another way of saying pro-

pensity. These people discriminated before, . . . they are discriminat-

ing now." Id. The court deemed such propensity evidence

inadmissible, invoking Rules 402, 403, and 404(a). By the Buckley

Post-trial Order, the court further observed that the Segar litigation

evidence was properly limited under Rules 401 and 402, explaining

that

the Segar litigation, which began in 1982, involved different

decisionmakers whose racial animus cannot be attributed to

the decisionmakers here. Thus, the facts or circumstances

underlying Segar are not relevant to the employment actions

taken by [this defendant] against plaintiff.

Buckley Post-trial Order 6. Similarly, the court observed that, because

Buckley sought "to introduce the prior bad acts of other decision-

makers to show defendant’s state of mind, the evidence is inadmissi-

ble under Rule 404(b)." Id. at 7. Finally, with respect to the Rule 403

aspect of its ruling, the court determined that, "even assuming the

Segar litigation was relevant to the defendant’s state of mind in this

case, . . . the potential unfair prejudice and confusion of the issues is

manifest, and substantially outweighs any probative value" of the

Segar litigation evidence. Id.

18 BUCKLEY v. MUKASEY

Apparently, the district court misunderstood the purpose for which

Buckley sought the admission of the Segar litigation evidence. Buck-

ley did not, as the court believed, seek to use such evidence to estab-

lish either a general propensity to discriminate against African-

American employees within the DEA, or a more specific racially dis-

criminatory animus on the part of the decisionmakers in her case

based on past discriminatory acts committed by other DEA decision-

makers. Rather, Buckley intended to utilize the Segar litigation evi-

dence to demonstrate retaliatory animus, as she was required to do to

prevail on her retaliation claims. Specifically, Buckley sought to show

"that the pendency of Segar and the long history of its burden on

DEA weighed heavily on the minds of the principal decision-makers,

and that, ultimately, those decision-makers failed to promote Buckley

because of her involvement in the litigation." Br. of Appellant 19.

Buckley’s Segar litigation theory — that the government’s retalia-

tory animus was prompted by, inter alia, her Email 2 invitation to the

EEOMC to attend the initial DEA-GAO meeting — was essential to

her failure-to-promote retaliation claim, and also relevant to her

negative-review retaliation claim (though that claim could also rely

on the theory that the government’s animus stemmed from Buckley’s

post-nonpromotion internal EEO complaint). Nevertheless, under the

district court’s ruling on the Segar litigation evidence, Buckley was

barred from presenting evidence, for example, of the Segar plaintiffs’

various successes against the DEA, from the initial findings of race

discrimination to the series of injunctions controlling DEA opera-

tions, including the Segar 2000 Interim Order governing the very pro-

motions at issue in this case. Although Buckley was permitted to

introduce evidence on the requirements of the DEA’s promotion sys-

tem and its purpose of ensuring equal opportunity, she was prohibited

from mentioning to the jury that the promotion system was governed

by the Segar 2000 Interim Order or in any way connected to the nebu-

lous "ongoing litigation" against the DEA in which she was involved.

These restrictions on the Segar litigation evidence foreclosed a coher-

ent and compelling evidentiary account of the government’s alleged

retaliation. By "prohibit[ing] Buckley from introducing evidence of

the Segar [l]itigation in all but the most sanitized terms," Br. of

Appellant 17, the court prevented Buckley from demonstrating why

her participation in that litigation so rankled the relevant DEA deci-

sionmakers that they were provoked to retaliate against her.

BUCKLEY v. MUKASEY 19

We are constrained to conclude that the district court’s ruling on

the Segar litigation evidence constituted an error of law and, thus, an

abuse of discretion. As Buckley contends, retaliation claims like hers,

which are

based on retaliation for pursuing discrimination claims in

the past[,] are inextricably linked to past acts of discrimina-

tion. Because such evidence of prior bad acts speaks directly

to the defendant’s motive or intent to retaliate, such evi-

dence must be admitted if the plaintiff is to have any real

chance of proving her retaliation claim.

Br. of Appellant 17; see also, e.g., Funai v. Brownlee, 369 F. Supp.

2d 1222 (D. Haw. 2004) (observing that retaliation plaintiff presented

trial evidence supporting theory that employer developed retaliatory

animus after she obtained temporary restraining order in separate

court proceeding against co-worker for religious harassment); Fer-

nandez v. N. Shore Orthopedic Surgery & Sports Med., P.C., 79 F.

Supp. 2d 197 (E.D.N.Y. 2000) (noting that retaliation plaintiff testi-

fied at trial about being discharged shortly after entering conciliation

agreement with employer on prior administrative charge of national

origin discrimination).

Viewed in the light of its real purpose of establishing retaliatory

animus, the Segar litigation evidence is unquestionably "‘[r]elevant’"

within the meaning of Rule 401. Moreover, such evidence of other

wrongs or acts is admissible under Rule 404(b), "which allows evi-

dence of other wrongs for purposes such as proof of motive and

intent." Johnson v. Hugo’s Skateway, 974 F.2d 1408, 1413 (4th Cir.

1992) (en banc) (approving trial court’s admission under Rule 404(b)

of prior consent order prohibiting defendant’s further race discrimina-

tion against patrons, because evidence that defendant failed to comply

with terms of consent order was probative of motive and intent issues

in plaintiff’s civil rights case); see also Mullen v. Princess Anne Vol-

unteer Fire Co., 853 F.2d 1130, 1133 (4th Cir. 1988) (relying on

Rules 401 and 404(b) for proposition that "[t]he use of racially offen-

sive language by the decisionmaker is relevant as to whether racial

20 BUCKLEY v. MUKASEY

animus was behind the membership decision, and was proper evi-

dence for the jury to consider").15

Although Rule 404(b) evidence is subject to the balancing analysis

of Rule 403, "the potential importance of evidence showing state of

mind is properly weighed in the balance." Mullen, 853 F.2d at 1133.

Clearly, the critical importance of the Segar litigation evidence to

Buckley’s proof of retaliatory animus is not outweighed (much less

substantially outweighed) by any danger of unfair prejudice. Cf. id.

at 1135 (rejecting Rule 403 unfair prejudice contention with respect

to evidence of racial epithets on ground, inter alia, that "[t]he epithets

involved here are offensive precisely because they convey the idea of

racial bigotry," and "[t]he emotional reaction claimed to be unfairly

prejudicial is thus closely tied to the [requisite] inquiry into state of

mind"). To the extent there is any danger of confusion of the issues,

a limiting instruction could be utilized to caution the jury that the

Segar litigation evidence is to be considered only as evidence of retal-

iatory animus. Cf. Johnson, 974 F.2d at 1413 (approving "the district

court’s efforts to minimize any prejudicial effect on the defendants by

way of instructions to the jury"); Mullen, 853 F.2d at 1134 (observing

that "[t]he district court might have issued a cautionary instruction to

the effect that the racial statements were only to be considered on the

15

Notably, several of our sister courts of appeals have deemed evi-

dence of prior retaliatory acts against others as admissible under Rule

404(b) to prove the plaintiffs’ own retaliation claims. See, e.g., Gold-

smith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008) (con-

cluding, where plaintiff alleged that employer retaliated against him for

filing race discrimination charge, that co-workers’ "‘me too’ evidence"

was admissible as "probative of the intent of Bagby Elevator to retaliate

against any black employee who complained about racial slurs in the

workplace"); Hitt v. Connell, 301 F.3d 240, 249-50 (5th Cir. 2002)

(where plaintiff alleged retaliation for union participation, ruling that co-

workers were properly "allowed to testify that they were discharged or

otherwise discriminated against because of their participation in the

union," because such evidence was admissible as proof of motive); Mor-

ris v. Wash. Metro. Area Transit Auth., 702 F.2d 1037, 1046 (D.C. Cir.

1983) (where plaintiff asserted First Amendment retaliation claim, deem-

ing admissible, as probative of motive, "evidence showing that the

employer followed a broad practice of retaliation and responded to any

protected criticism with disciplinary action").

BUCKLEY v. MUKASEY 21

question of discriminatory intent in Mullen’s particular case, but the

outright exclusion of the evidence was improper"). Accordingly, the

district court erred as a matter of law in relying on the Federal Rules

of Evidence to limit the Segar litigation evidence as it did.

Furthermore, the trial court’s error in restricting the Segar litigation

evidence affected Buckley’s substantial rights by rendering her unable

to cogently demonstrate Segar litigation-related retaliatory animus.

See Taylor v. Va. Union Univ., 193 F.3d 219, 235 (4th Cir. 1999) (en

banc) (recognizing that evidentiary errors do not affect substantial

rights, and thus are harmless, if reviewing court is "able to say ‘with

fair assurance, after pondering all that happened without stripping the

erroneous action from the whole, that the judgment was not substan-

tially swayed by the errors’" (quoting, inter alia, Kotteakos v. United

States, 328 U.S. 750, 765 (1946)) (some internal quotation marks

omitted) (alteration in original)); see also Bank of Montreal v. Signet

Bank, 193 F.3d 818, 834 (4th Cir. 1999) (concluding that trial court

committed reversible error under Kotteakos by excluding evidence of

contract terms necessary to fraud claim defense, in that "[g]iven the

great importance of the [contract] to the proper development and eval-

uation of material elements of the cause of action, it was not harmless

to exclude that evidence"). Moreover, we cannot say that the district

court’s evidentiary error did not permeate the trial, negatively affect-

ing the presentation of Buckley’s race and sex discrimination claims,

as well as her retaliation claims. We therefore conclude that Buckley

is entitled to a new trial on the claims that were, and which should

have been, submitted to the jury in the 2006 trial. See Rice v. Cmty.

Health Ass’n, 203 F.3d 283, 290 (4th Cir. 2000) ("A partial new trial

may be granted . . . only if ‘it clearly appears that the issue to be

retried is so distinct and separable from the others that a trial of it

alone may be had without injustice.’" (quoting Gasoline Prods. Co.

v. Champlin Refining Co., 283 U.S. 494, 500 (1931))).16

16

In granting a new trial on Buckley’s race and sex discrimination

claims, we do not mean to say that the court erred insofar as it ruled that

the Segar litigation evidence is inadmissible to prove discriminatory ani-

mus on the parts of the relevant decisonmakers. Buckley has acknowl-

edged that she cannot rely on the Segar litigation evidence for proof of

her race and sex discrimination claims, and that an appropriate limiting

instruction may be in order for her retrial.

22 BUCKLEY v. MUKASEY

B.

Next, Buckley asserts that the district court erred in awarding judg-

ment as a matter of law to the government, pursuant to Federal Rule

of Civil Procedure 50, on her failure-to-promote retaliation claim. We

review de novo the court’s grant of the government’s Rule 50 motion,

viewing the evidence in the light most favorable to Buckley, the non-

moving party, and drawing all reasonable inferences in her favor. See

A Helping Hand, LLC v. Balt. County, Md., 515 F.3d 356, 365 (4th

Cir. 2008); see also Int’l Ground Transp., Inc. v. Mayor of Ocean

City, Md., 475 F.3d 214, 216 n.2 (4th Cir. 2007). "We must affirm if

a reasonable jury could only rule in favor of the [government]; if rea-

sonable minds could differ, we must reverse." A Helping Hand, 515

F.3d at 365.

At trial, the district court awarded judgment as a matter of law to

the government on the failure-to-promote retaliation claim on the

ground that the evidence relied on by Buckley to demonstrate retalia-

tory animus — i.e., the testimony of DEA Chief Counsel Ryan that

she shared her concerns over Buckley’s Email 2-related conduct with

Acting Deputy Administrator Simpkins — was "too slender a reed to

permit the jury to speculate on whether Mr. Simpkins[, a key deci-

sionmaker with respect to Buckley’s subsequent nonpromotion,]

knew that she was . . . more than" a passive plaintiff class member

in the Segar litigation. J.A. 605. Thereafter, in the Buckley Post-trial

Order, the court stood by its ruling, explaining that Buckley "failed

to produce any evidence that Ryan’s concerns were communicated to

the actual decisionmakers [Simpkins and Acting Chief Inspector

Brown]," and, thus, that "there was no evidence in the record to allow

a reasonable jury to find the requisite causal connection" between

Buckley’s active participation in the Segar litigation and her nonpro-

motion. Buckley Post-trial Order 8.

We find the proposition that Ryan’s testimony was insufficient to

establish Simpkins’s knowledge to be dubious at best. Nevertheless,

we also recognize that, to the extent Ryan’s testimony and other trial

evidence failed to adequately support Buckley’s failure-to-promote

retaliation claim, it was seemingly because of the district court’s

improper restriction on the Segar litigation evidence, as discussed

supra. Accordingly, we conclude that the court erred in granting the

BUCKLEY v. MUKASEY 23

government’s Rule 50 motion on the failure-to-promote retaliation

claim, and thus reinstate that claim to be retried with the claims sub-

mitted to the jury in the 2006 trial.17

C.

Finally, Buckley contends that the district court wrongly refused

her request for an adverse inference instruction against the govern-

ment for spoliation of evidence. We review the court’s jury instruc-

tions for abuse of discretion. See A Helping Hand, 515 F.3d at 370.

Of course, "[a]n error of law constitutes an abuse of discretion." Id.;

see also RZS Holdings, 506 F.3d at 356. The "judgment will be

reversed for error in jury instructions," however, "only if the error is

determined to have been prejudicial, based on a review of the record

as a whole." Abraham v. County of Greenville, S.C., 237 F.3d 386,

393 (4th Cir. 2001) (internal quotation marks omitted).

Buckley sought an adverse inference instruction against the gov-

ernment for spoliation of evidence, i.e., the DEA’s destruction of

electronic documents, pursuant to routine internal procedures, from

the time the government could reasonably anticipate this litigation

until nearly two weeks after its discovery responses to Buckley were

due. The primary ground for the district court’s denial of Buckley’s

request — reflected in the court’s ruling during the preliminary trial

proceedings, as well as in the Buckley Post-trial Order — was that

Buckley failed to demonstrate willful or intentional conduct, rather

than mere negligence, on the part of the government. In so ruling, the

court relied on, inter alia, the following statement from our decision

in Vodusek v. Bayliner Marine Corp.:

17

We observe that the parties have engaged in some debate over

whether it is necessary for Buckley to prove "active" participation in the

Segar litigation, or whether her simple membership in the plaintiff class

is enough. Cf. Crawford v. Metro. Gov’t of Nashville & Davidson

County, Tenn., 211 F. App’x 373, 376 (6th Cir. 2006) (recognizing that,

in order to demonstrate protected opposition activity, plaintiff must show

"active, consistent ‘Opposing’ activities" (internal quotation marks omit-

ted)), cert. granted, 128 S. Ct. 1118 (2008). This issue is moot, however,

because Buckley actually relies on a theory of active participation in sup-

port of her failure-to-promote retaliation claim.

24 BUCKLEY v. MUKASEY

An adverse inference about a party’s consciousness of the

weakness of his case . . . cannot be drawn merely from his

negligent loss or destruction of evidence; the inference

requires a showing that the party knew the evidence was rel-

evant to some issue at trial and that his willful conduct

resulted in its loss or destruction.

71 F.3d 148, 156 (4th Cir. 1995).

The Vodusek plaintiff had alleged negligence, products liability,

and wrongful death claims following the death of her husband from

injuries sustained in a boat explosion and fire. See 71 F.3d at 151. "In

examining the boat to discover the cause of the explosion and fire,

[Vodusek’s expert witness], together with Vodusek’s two sons,

employed destructive methods which rendered many portions of the

boat useless for examination by the defendants and their experts." Id.

at 155. At the defendants’ request, the trial court then instructed the

jury that it was permitted to "assume that evidence made unavailable

to the defendants by acts of plaintiff’s counsel or agents . . . would

have been unfavorable to the plaintiff’s theory in the case." Id. (inter-

nal quotation marks omitted). On appeal, Vodusek contended that the

court erred in instructing the jury on the spoliation issue, because

there was no evidence on the "necessary element" of bad faith. Id. In

our opinion, however, "[w]e reject[ed] the argument that bad faith is

an essential element of the spoliation rule." Id. at 156. Rather, we

concluded that

when a proponent’s intentional [but not necessarily bad

faith] conduct contributes to the loss or destruction of evi-

dence, the trial court has discretion to pursue a wide range

of responses both for the purpose of leveling the evidentiary

playing field and for the purpose of sanctioning the

improper conduct. [The court may, inter alia,] permit the

jury to draw unfavorable inferences against the party

responsible for the loss or destruction of the original evi-

dence. An adverse inference about a party’s consciousness

of the weakness of his case, however, cannot be drawn

merely from his negligent loss or destruction of evidence;

the inference requires a showing that the party knew the evi-

BUCKLEY v. MUKASEY 25

dence was relevant to some issue at trial and that his willful

conduct resulted in its loss or destruction.

Id. (internal citations omitted). Applying this standard in Vodusek, we

determined that, because portions of the boat "were permanently

destroyed as part of [the plaintiff’s expert’s] deliberate investigative

efforts" — even if Vodusek and her expert "did not act in bad faith"

— the trial court had properly submitted the spoliation issue to the

jury. Id. at 156-57.

In its analysis of Buckley’s request for an adverse inference

instruction, the district court appears to have committed an error of

law by equating the intentional conduct necessary for such an instruc-

tion with bad faith, thereby deeming non-bad faith conduct to be neg-

ligent conduct. The court did not acknowledge that the DEA’s

document destruction, though not conducted in bad faith, could yet be

"intentional," "willful," or "deliberate." See Vodusek, 71 F.3d at 156.

Nevertheless, because we already are remanding for a new trial on

other grounds, we simply leave it to the district court to consider on

remand — consistent with our discussion herein — Buckley’s request

for an adverse inference instruction. In the circumstances, we do not

unnecessarily engage in our own assessment of whether an adverse

inference instruction is warranted, or whether Buckley was prejudiced

by the court’s prior refusal to give such an instruction.

We note, however, that the district court raised two possible alter-

native grounds for its ruling during the preliminary trial proceedings

— the failure of Buckley to secure a court order prohibiting the

DEA’s destruction of documents, and the lack of specificity in her

request for the adverse inference instruction. Because the issue of

whether Buckley was obliged to obtain a court order to ensure DEA

document preservation is likely to resurface, we simply observe that

(even absent a court order) "[t]he duty to preserve material evidence

arises not only during litigation but also extends to that period before

the litigation when a party reasonably should know that the evidence

may be relevant to anticipated litigation." Silvestri v. Gen. Motors

Corp., 271 F.3d 583, 591 (4th Cir. 2001). By contrast, we need not

comment on the issue of whether Buckley’s initial instruction request

lacked sufficient specificity. Rather, the district court may — if the

26 BUCKLEY v. MUKASEY

opportunity arises — take a fresh look at this and other relevant issues

on remand.

III.

Pursuant to the foregoing, we vacate the district court’s judgment

in favor of the government, and remand for such further proceedings

as may be appropriate on Buckley’s failure-to-promote retaliation

claim and the claims submitted to the jury in the 2006 trial.

VACATED AND REMANDED