No Spoliation by US Department of Labor Based on Sovereign Immunity

4 May 2018

In O’Toole v. Acosta, No. 14-cv-2467, (N.D. Illinois, 2018), Plaintiff Thomas O’Toole sued his former employer, the Department of Labor (“DOL”), for alleged spoliation of evidence under the Federal Tort Claims Act (“FTCA”). Defendant moved for summary judgment.

Plaintiff worked for DOL’s Bureau of Labor Statistics (“BLS”) as a statistician from February 2012 to August 2014. Plaintiff has Type 2 diabetes, which he disclosed on his first day of work. Plaintiff says he did not request an accommodation for his disability, but states that within his first few days at BLS he discussed his need to take consistently timed meals with his supervisor. As part of his employment as a statistician, Plaintiff participated in on-the-job training (“OJT”), which involved shadowing a mentor, conducting appointments under the mentor’s observation, observing the mentor’s data collection, and collecting “at least four productive schedules” under observation.

In August 2012, Plaintiff filed a complaint with DOL’s Civil Rights Center (“CRC”), alleging disability discrimination because his supervisor’s denial of his accommodation request. In November, Plaintiff’s supervisor agreed to the following accommodations: (1) no supervisor or mentor would make an appointment during the 30-minute period that Plaintiff identified as his lunch break; (2) if management officials directly assigned or scheduled trips, they would notify Plaintiff of the estimated duration; (3) management would consider assigning more local work; and (4) Plaintiff would give supervisors or mentors advance notice of when he planned to take his lunch. The accommodation agreement noted, however, that these accommodations only applied in the rare instance that a supervisor or mentor arranged Plaintiff’s travel or appointments; at all other times, Plaintiff had the ability and responsibility to make his own schedule and take his own breaks. Plaintiff signed this agreement in December 2012.

While Plaintiff was at BLS, he filed several complaints before the DOL’s Civil Rights Center (“CRC”) following the August 2012 complaint resulting in his written accommodation. Plaintiff added claims for harassment and retaliation on November 6, 2012 and retaliatory discipline on November 20, 2012. Finally, after the CRC denied his claims in March 2014, Plaintiff filed a new complaint alleging further retaliatory actions.

At some point while these complaints were pending, Plaintiff discovered that the “properties” dialog box for four of his OJT evaluations (called “OJT checklists”) showed that these evaluations had been “modified” several months after they were created. Plaintiff claims that the “modifications” demonstrate that his supervisors added “false errors” to his OJT checklists in July 2012. In March 2014, Plaintiff filed an administrative claim with DOL for spoliation of evidence by Plaintiff’s supervisors.

Plaintiff’s Federal Torts Claim Act (“FTCA”) spoliation claim arises from the alleged alterations of his OJT evaluations and emails by his supervisors. Defendant DOL seeks summary judgment on the grounds that: (1) Plaintiff’s claim falls within the FTCA’s intentional torts exception, and therefore is barred; or (2) Plaintiff’s spoliation claim otherwise fails on the merits.

Here, despite the generic “spoliation” label, Plaintiff (acting pro se) alleges an intentional tort. His amended complaint states that BLS employees did not only fail to preserve said evidence, but willfully destroyed evidence and tampered with official government records to distort the true record and cast Plaintiff in a negative light. His affidavit states that his supervisors “fabricated errors” in his OJT forms, as part of a scheme of tampering with and falsifying official records to justify the alleged retaliation against him.

This Court notes that the United States is the only proper defendant in an FTCA case. Here, Plaintiff’s claim is barred by the United States’ sovereign immunity and, in any event, fails on the merits. Plaintiff’s spoliation claim is therefore barred.