Takeaway: Many employers allow employees to use their personal cellphones to conduct business, and few have policies governing that data. In this case, a Texas federal court denied an employer summary judgment against its former employee’s discrimination claim because a supervisor deleted texts he sent after receiving a litigation hold letter. This case shows that all employers that do not provide company cellphones should have a policy that instructs employees to preserve all business data on personal devices.
The U.S. District Court for the Northern District of Texas recently ruled that a company violated its duty to preserve documents and evidence when a supervisor deleted texts related to an employee who was laid off. On June 6, the court denied the company’s motion for summary judgment, sending the case to trial.
The plaintiff was laid off after working for Perspecta, a government contractor in Laurel, Md., and its predecessors for 27 years. He sued for breach of contract; negligent misrepresentation; declaratory judgment; fraud; violations of the Deceptive Trade Practices Act; and race, color and age discrimination.
In May 2021, Peraton, a technology company and government contractor, acquired Perspecta. At the time of the acquisition, the plaintiff was working as a senior supply chain business partner manager, also referred to as a program manager. His supervisor at the time of the merger gave him a positive performance review for the year leading up to the merger.
As part of the acquisition process, all Perspecta employees were presented with a welcome letter and a proposed employment agreement. The plaintiff signed the agreement and became a Peraton employee on May 6, 2021. As the companies executed the merger, Peraton decided to absorb the plaintiff’s duties into existing positions and eliminate his position. He was moved to a new role as a category manager.
The plaintiff’s employment at Peraton was short-lived. Shortly after acquiring Perspecta, Peraton began a series of layoffs, and the plaintiff was terminated as part of the first round of layoffs. His supervisor notified him that he was being terminated via a Zoom call.
His supervisor unilaterally referenced his age, telling him twice, without prompting, that his termination was not because of his age. The plaintiff believed that the layoffs were a sham to disguise Peraton’s discriminatory reasons for terminating the affected employees.
The plaintiff sued Peraton in state court for race, color and age discrimination in violation of Texas law.
Peraton shifted the case to federal court and moved for summary judgment, claiming that the plaintiff failed to show that Peraton’s nondiscriminatory reason for terminating him was a pretext for discrimination.
In response, the plaintiff filed a motion to strike the defendant’s summary judgment evidence, a summary judgment response, and a motion for sanctions. The plaintiff’s sanctions motion was based on the fact that he sent Peraton a litigation hold letter in July 2021. He instructed Peraton to preserve all documents regarding his claims, including information, data, emails, texts, attachments, and any other methods or means of communication, and not to allow deletion of these documents. Peraton directed the plaintiff’s supervisor to preserve emails relating to the claims but did not mention text messages.
At his deposition, the plaintiff’s supervisor testified that he texted his supervisor about the plaintiff once or twice from his personal cellphone. He stated that he received the plaintiff’s litigation hold letter and texted his supervisor to ask if he had seen it. He also sent a second text to make sure that Peraton’s chief legal officer also saw the letter. However, he could not produce these messages because he had deleted them. He claimed that he always deletes all his text messages within 48 hours.
The plaintiff also sought sanctions because Peraton had produced a document called the Skills Matrix Template, which stated that the plaintiff was not performing well, but did not provide evidence of who filled out the form and what factors were used.
While Peraton argued that it had no duty to preserve the text messages on its employees’ personal cellphones, the court disagreed and found that Peraton controlled the supervisor’s text messages and had a duty to preserve them. It ruled that the supervisor’s failure to keep the two text messages constituted spoliation of evidence and was done in bad faith. As a result, the court denied Peraton’s motion for summary judgment and allowed the plaintiff to serve five additional interrogatories and three additional requests for production that didn’t have to relate to the text messages.
Miramontes v. Peraton, Inc., N.D. Tex., Civil Action No. 3:21-CV-3019-B (June 6, 2023).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
