WEBB v. THE DISTRICT OF COLUMBIA, 146 F.3d 964 (D.C. Cir. 1998)

Isaiah Webb, Appellee v. The District of Columbia, Appellant

Nos. 97-7165, 97-7239United States Court of Appeals, District of Columbia Circuit.Argued May 14, 1998
Decided July 7, 1998

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Appeals from the United States District Court for the District of Columbia. (No. 90cv02787).

Donna M. Murasky, Assistant Corporation Counsel, argued the cause for appellant, with whom John M. Ferren, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Carol E. Burroughs, Assistant Corporation Counsel, were on the briefs.

Lynn Estes Calkins argued the cause for appellee, with whom Michael L. Martinez, Melinda Burrows, and Theodore W. Small, Jr., were on the brief.

Before: WALD, WILLIAMS, and GARLAND, Circuit Judges.

WALD, Circuit Judge:

[1] In 1990, Isaiah Webb (“Webb”), an African-American male correctional officer, sued the District of Columbia Department of Corrections (“the District”), alleging that he had been unlawfully denied promotion to more than one hundred positions for which he had applied. In 1994, the District terminated Webb for sexually harassing two female co-workers. After the district court dismissed many of his claims, Webb filed an amended complaint in 1996 that limited his claims of discrimination to three positions and added a claim of retaliatory termination. As discovery proceeded, it became clear that the District, in accordance with general internal policies and in contravention of federal regulations, had discarded portions of Webb’s personnel file as well as other files relevant to the positions at issue. Webb moved for sanctions, and the district court, concluding that the destruction of documents was too extensive to permit a trial to go forward, entered a default judgment against the District and ordered that Webb be placed in one of the positions for which he had applied, declining to consider the District’s evidence of Webb’s harassment activities. Because we believe that the district court did not give adequate consideration either to alternative sanctions or to the District’s harassment evidence, we vacate the default judgment against the District and remand for further proceedings.

I. Background
[2] Webb was hired as a probationary correctional officer with the District in January 1973 at a DS-6 level. He received numerous promotions and wage increases throughout the succeeding years, eventually attaining the rank of Supervisory Correctional Officer, a DS-11 position, by 1990. At this point, in Webb’s view, his ascent stalled. On November 13, 1990, after exhausting his administrative remedies, Webb brought a pro se suit against the District, alleging that between November 1983 and November 1990, he had applied for and was denied promotion to more than one hundred positions[1] on the

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basis of his sex, race, and/or personal appearance in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and 42 U.S.C. § 1981.[2] Webb sought an injunction ordering the District to promote him and an award of back pay. In June 1994, while proceedings in his nonselection suit were ongoing, the District terminated Webb for the sexual harassment of two female co-workers, Barbara Shank (“Shank”) and Sandra Stevens (“Stevens”).

[3] The District moved to dismiss the nonselection suit or, in the alternative, for summary judgment. In Webb v. District of Columbia (Webb I), 864 F. Supp. 175 (D.D.C. 1994), the district court granted the motion in part and denied it in part, retaining only ten of Webb’s claims of racial discrimination, seventeen of his claims of sex discrimination, and forty-two of his claims of retaliation.[3] The court also granted Webb leave to amend his complaint to add a claim of retaliatory discharge and race/sex discrimination resulting from his 1994 termination. Id. at 187. On November 1, 1996, Webb (for whom counsel had been appointed) filed his fourth amended complaint. The complaint limited Webb’s claims of discrimination to three positions — Special Assistant, Correctional Program Officer, and Supervisor Correctional Officer/Major[4] — and included a claim of retaliatory discharge pursuant to 42 U.S.C. § 2000e-3. With the scope of the suit thus narrowed, the district court ordered that the discovery process conclude by February 24, 1997,[5] and set a trial date of March 24, 1997. Webb v. Government for the Dist. of Columbia, Dep’t of Corrections (Webb II), 175 F.R.D. 128, 130 (D.D.C. 1997).

[4] Beginning in 1990, Webb had served on the District numerous requests and interrogatories asking for information and documents relating to his nonselection and termination claims. His ninth such request, on October 30, 1996 (the first to be prepared by counsel), included a request for documents from Webb’s personnel file as well as documents from the “merit case files” for the positions identified in his complaint.[6]
After the District informed Webb’s counsel that it could not locate Webb’s personnel file, Webb moved for sanctions as well as to compel the District’s full response to his discovery requests. As part of its opposition to Webb’s motion, the District submitted two declarations to explain its inability to comply fully with Webb’s requests. In the first declaration, Joan Murphy (“Murphy”), a Supervisory Personnel Management Specialist with the District of Columbia, stated that she believed that the merit case files relevant to Webb’s case were destroyed two years after the end of the selection process in accordance with

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District regulations. In the second declaration, Karen Adams (“Adams”), also a Supervisory Personnel Management Specialist with the District of Columbia, stated that although she had located Webb’s personnel file, all “temporary records” had been removed and discarded in preparation for routine archiving. Although Adams could not identify the number or content of any discarded documents, she noted that the term “temporary records” would include corrective or adverse action final decision letters as well as official reprimands.[7] The District thus asserted that it had responded to the bulk of Webb’s requests and where it had not done so, it had acted in good faith. See Defendant’s Opposition to Plaintiff’s Motion to Compel and Request for Sanctions (February 3, 1997).

[5] On March 1, 1997, the district court granted Webb’s motion for sanctions for destruction of the documents, stating that the appropriate sanction would be determined at a later date. The court also granted Webb’s motion to compel and ordered the District to respond fully to Webb’s discovery requests by March 6, 1997, and to provide written confirmation of its compliance. The District’s supplementary responses, inter alia, identified Walter Ridley and Earthel C. Foster as individuals who participated in the selection process for vacancy announcement 89-125 and Bernard Braxton, Douglas Stempson, and Warren Bragg as the interviewing committee for vacancy announcement 90-167.[8]

[6] On March 20, 1997, the second day of the pretrial conference, the court informed the parties that it would enter a default judgment in Webb’s favor. It thus vacated the trial date and requested that Webb submit proposed findings of fact and conclusions of law. The District moved for reconsideration. On August 4, 1997, the district court denied the District’s motion, finding that because the destruction of documents was “far more extensive than originally represented,” the only appropriate action was the entry of a default judgment in Webb’s favor. Webb II, 175 F.R.D. at 129. Because “[a] sanction for failure to preserve evidence is appropriate only when a party has consciously disregarded its obligation to do so,” Shepherd v. American Broadcasting Cos., Inc., 62 F.3d 1469, 1481 (D.C. Cir. 1995), the district court first determined whether the District had knowingly violated 29 C.F.R. § 1602.31,[9]

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which requires government entities to maintain all personnel files for two years from the making of the record or the date of the action involved and to preserve those records relevant to a filed charge of discrimination until final disposition of the charge. Because Webb had been terminated in June 1994, and the evidence showed that records from his personnel file had been destroyed in late 1994 or early 1995, the district court concluded that the District had engaged in a clear violation of the regulation. Next, the court rejected the District’s claim that it did not have sufficient notice of which positions plaintiff intended to challenge, stating that Webb’s second amended complaint, filed on May 12, 1992, named “the selectees for the positions [identified], together with the allegations of a pattern and practice of discrimination” and thus was “sufficient to put the District on notice that the relevant documents should have been retained.” Webb II, 175 F.R.D. at 144. (The court was troubled, moreover, by the fact that the record indicated that “there was no procedure in place to ensure that relevant employment records were flagged so that they would not be destroyed.” Id.) Finally, the court determined, based on the testimony adduced during the hearings, that the District knew of the requirement to preserve employment records and willfully chose to ignore it. Id. at 145. It thus held that some sort of sanction for the destruction of documents was appropriate and that, in accordance with the case law of this circuit, a default judgment was the only appropriate sanction.

[7] Following this decision, the District proffered several summaries of sexual harassment claims involving Webb that had been submitted in other ongoing litigation and contended that Webb would ultimately have been discharged on harassment grounds even if he had not been terminated for discriminatory reasons.[10]

[8] On September 10, 1997, the court held that it would not consider this evidence[11] and awarded Webb $80,745.35 in back pay, $75,000 in compensatory damages,[12]
and $4,018.93 for medical expenses.[13] The court also directed that the District rehire Webb to a DS-12 Special Assistant position, the position for which he applied in 1989, with “such other pecuniary compensation as one reinstated would be entitled to receive.”[14] Joint Appendix (“J.A.”) 60.

[9] The District appealed. Before this court, the District does not contest the district court’s conclusion that the District discarded

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files relevant to Webb’s claims in violation of federal regulations and thus that some sanction is appropriate. See, e.g., Shepherd, 62 F.3d at 1478 (“[A] district court may impose issue-related sanctions whenever a preponderance of the evidence establishes that a party’s misconduct has tainted the evidentiary resolution of the issue.”). It does challenge, however, the district court’s conclusion that default was the only appropriate sanction for its misconduct and the requirement that Webb be reinstated to a supervisory position despite strong evidence of sexual harassment.

II. Analysis A. The Default Judgment
[10] A district court may order sanctions, including a default judgment, for misconduct either pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure, which authorizes a court to assess a sanction for violation of a discovery order, or pursuant to the court’s inherent power to “protect [its] integrity and prevent abuses of the judicial process.” Shepherd, 62 F.3d at 1474. In Shea v. Donohoe Construction Company, 795 F.2d 1071 (D.C. Cir. 1986), we set forth three basic justifications that support the use of dismissal or default judgment as a sanction for misconduct. First, the court may decide that the errant party’s behavior has severely hampered the other party’s ability to present his case — in other words, that the other party “has been so prejudiced by the misconduct that it would be unfair to require him to proceed further in the case.” Id. at 1074. Second, the court may take account of the prejudice caused to the judicial system when the party’s misconduct has put “an intolerable burden on a district court by requiring the court to modify its own docket and operations in order to accommodate the delay.” Id. at 1075. And finally, the court may consider the need “to sanction conduct that is disrespectful to the court and to deter similar misconduct in the future.”[15] Id. at 1077. A sanction imposed pursuant to any of these considerations must be based on findings supported by the record. Bonds v. District of Columbia, 93 F.3d 801, 809 (D.C. Cir. 1996), cert. denied, 117 S.Ct. 2453 (1997).

[11] Although our review of a district court’s order of default under either source of authority looks only to whether an abuse of discretion has occurred, the review should be a thorough, not a cursory, one. See, e.g., Bonds, 93 F.3d at 808
(Rule 37(b)); Shepherd, 62 F.3d at 1475 (inherent power). We recognize the burdens and management responsibilities a heavy docket places on a district court, but we must be equally cognizant of the drastic nature of a default judgment, which deprives a party completely of its day in court. Because disposition of cases on the merits is generally favored, we have said that a default judgment must be a “sanction of last resort,” to be used only when less onerous methods (for example, adverse evidentiary determinations or other “issue-related sanctions”) will be ineffective or obviously futile. Shea, 795 F.2d at 1075 (internal quotation omitted); Shepherd, 62 F.3d at 1478. While we do not require a district court, in making this judgment, to exhaust lesser sanctions before turning to default, see, e.g., Shepherd, 62 F.3d at 1479, we do require that the court explain its reason for issuing a default judgment rather than a lesser sanction. This duty to explain arises out of two different, although related, concerns. Rule 37(b)(2) permits a district court to issue only such orders “as are just” in response to a party’s failure “to obey an order to provide or permit discovery.” Fed.R.Civ.P. 37(b)(2). The requirement that an ordered sanction be “just” imposes a duty on the district court, particularly in the case of severe sanctions, to give adequate consideration to “whether lesser sanctions would be more appropriate for the particular violation.” Bonds, 93 F.3d at 808. When sanctions are ordered under the court’s inherent power, the need to consider less onerous alternatives stems from the intrinsic need for self-restraint in using so powerful a weapon. See, e.g., Chambers v. NASCO, Inc.,

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501 U.S. 32, 44 (1991) (“Because of their very potency, inherent powers must be exercised with restraint and discretion.”). Indeed, we have noted that in order to justify the use of a court’s inherent power to order default, the court must give “a specific, reasoned explanation for rejecting lesser sanctions, such as fines, attorneys’ fees, or adverse evidentiary rulings.” Shepherd, 62 F.3d at 1478. A district court must state why, in light of the Shea factors, less onerous sanctions are not sufficient. Our task of appellate review of such orders, limited though it may be, cannot be properly exercised if we are not assured that the district court has fully considered whether harm caused by a party’s misconduct may be rectified by sanctions short of default. Cf., e.g., Outley v. City of New York, 837 F.2d 587, 591 (2d Cir. 1988) (“Before the extreme sanction of preclusion may be used by the district court, a judge should inquire more fully into the actual difficulties which the violation causes, and must consider less drastic responses.”). Conclusory statements are not enough. Thus, in Shepherd, we held that although the district court had concluded that “`[i]mposition of a lesser sanction would only reward the defendants for their misconduct in this litigation,'” id. at 1480 (quoting Shepherd v. ABC, 151 F.R.D. 179, 192 (D.D.C. 1992)), the court had not sufficiently explained why lesser sanctions would “`only reward the defendants’ and fail to provide meaningful deterrence and punishment for the misconduct.” Id. Rather, it had noted only that “[it] thought the misconduct was serious and imposing a default judgment was appropriate” without further explanation. Id. We thus felt obliged to remand for reconsideration of alternative sanctions by the district court.

[12] With these principles in mind, we proceed to examine the district court’s order of default in this case under the framework set out in Shea.[16] First, we consider whether a default judgment can be justified as a necessary response to the prejudice suffered by Webb as a result of the District’s document destruction or whether an issue-related sanction would have sufficed. We noted in Shepherd that the prejudice to the plaintiff engendered by the destruction of documents typically merits default in two instances: “where the destroyed document is dispositive of the case, so that an issue-related sanction effectively disposes of the merits anyway, and where the guilty party has engaged in such wholesale destruction of primary evidence regarding a number of issues that the district court cannot fashion an effective issue-related sanction.” Shepherd, 62 F.3d at 1479 (citations omitted). We do not see that either of these circumstances is present in this case. The evidence suggests that the personnel files of District employees who apply for vacant positions are not reviewed during the selection process, see Affidavit of Louis Chaney, Feb. 3, 1997; Deposition

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of Joan Murphy, Feb. 4, 1997; thus, any “temporary records” that might have been removed from Webb’s personnel file are seemingly relevant only to Webb’s claim of retaliatory termination. It does not appear from the evidence before us that the absence of such documents is dispositive of Webb’s case or why an adverse inference as to these documents would not have sufficed to address any harm resulting from their destruction. First, the only “temporary records” of potential interest would be any “Corrective/Adverse Action Final Decision Letters” or “Official Reprimands” in the file.[17] We would have supposed that Webb would want to rely on the absence of any such documents in his file to argue that he was an exemplary employee; the fact that the District cannot prove that Webb was ever reprimanded would appear only to bolster his case. (Alternatively, the district court could have ordered that an inference adverse to the District be drawn that Webb had only favorable letters in his personnel file.) Second, as the district court suggested, see Webb II, 175 F.R.D. at 148, an adverse inference could even have included the existence of documents in Webb’s personnel file that provided evidence of retaliatory intent (for example, an official reprimand that contained a phrase such as “if you continue to pursue these claims, you will be terminated”). Of course, such an inference, even if accepted by the trier of fact, would not “effectively dispose of the merits”: Even if Webb’s claims were a “motivating factor” in the decision to terminate him, the District could still prevail if it could show “that it would have reached the same decision . . . even in the absence of the protected conduct” — in this case, by producing sufficient evidence of Webb’s sexual harassment activities. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see also Walden v. Georgia-Pacific Corp., 126 F.3d 506, 51213 (3d Cir. 1997), cert. denied, 118 S.Ct. 1516 (1998); Tao v. Freeh, 27 F.3d 635, 639 (D.C. Cir. 1994).[18] We thus cannot agree with the district court’s conclusion that “the only adverse inference that would adequately compensate plaintiff . . . would effectively dispose of the merits of the claim.” Webb II, 175 F.R.D. at 148.

[13] We reach much the same conclusion with respect to the prejudice caused by the missing merit case files. These files might indeed have contained information helpful to Webb’s nonselection case, such as the experience and education of other applicants and the determination of the qualifications of each applicant.[19] The absence of these documents

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was mitigated, however, by (1) the District’s stipulation that it would not assert that applicants other than the final selectee were more qualified than Webb, see Webb II, 175 F.R.D. at 138; (2) the provision to Webb of the personnel file of Patricia Britton, the selectee for vacancy announcement 89-125; and (3) the submission, albeit delayed, of the names of the individuals who participated in the selection process. Each of these sources provides a way for Webb to discover any helpful evidence pointing toward the conclusion that his nonselection was discriminatory. We therefore cannot agree, on the basis of the current record, that lesser sanctions, such as a presumption that the missing files contained evidence favorable to Webb, would not suffice to overcome any prejudice suffered by Webb as a result of the destruction of the files.[20]
And to the extent that the documents would have shown that Webb’s own qualifications were incorrectly evaluated by the Office of Personnel, Webb can make that case independently through deposing Office of Personnel workers and asking them to explain the process for scoring qualifications. We therefore are not convinced by the district court’s conclusion that Webb was “so severely prejudiced by the District’s conduct that it would be unfair to require [him] to proceed with the trial because no lesser alternative [could] compensate [Webb] for the loss of evidence caused by the destruction and delay of [the District].” Webb II, 175 F.R.D. at 145.

[14] We next consider the extent to which the document destruction caused prejudice to the judicial system. Although the district court stated that the District’s conduct “ha[d] occupied the court’s attention with many hearings and motions” and thus frustrated the court’s ability to provide “swift justice” to the litigants appearing before it, id. at 146, the court’s primary concern, at least with respect to Webb’s nonselection claims, seems to have been the delay in furnishing some information until the month of trial rather than the scope of the information provided. See, e.g., id. at 145 (“By delaying the disclosure of these names [of individuals participating in the selection process] for so long, defendant thwarted plaintiff’s ability to prepare for trial. This injury is directly traceable to defendant’s conduct: if the files had not been destroyed, the information sought would have been readily available.”).[21]
It therefore seems that any prejudice to Webb on this account could have been remedied by a continuance of the trial date sufficient to permit him to depose the individuals identified by the District, perhaps with costs to be paid by the District. The district court did not adequately state why such continuance would not be feasible, noting merely that “the only way for the court to guarantee a timely outcome was to set a trial date, and enforce it.” Webb II, 175 F.R.D. at 146. Of course, we are cognizant of the district court’s need to manage its schedule, and its calendar should not be subject to the whims of recalcitrant litigants. See, e.g., Shea, 795 F.2d at 1076 (“[W]here a party or counsel

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announces at the last minute that he cannot participate in a scheduled trial, the District Court is not required to disrupt its well-planned trial schedule to find a new date for the missed trial.”). But it is not apparent to us from the record below that a continuance would place an “intolerable burden” on the district court, id. at 1075 (emphasis added), or that the court’s continued involvement in the discovery dispute would continue to call on far more resources into the future than the system should be required to allocate to the case. (Although the discovery period had ended two weeks prior to the District’s identification of the selecting individuals on March 6, 1997, trial was set for nearly three weeks later, leaving some room for the court to maneuver.) The district court’s conclusion that “an adverse inference could not have compensated for the delay suffered by plaintiff and the resulting inability to prepare for trial,” Webb II, 175 F.R.D. at 148, standing alone, tells us nothing about the availability of a continuance to permit Webb to depose the named individuals. We thus cannot conclude, without further explanation from the district court, that any systemic harm suffered by the district court warranted a default judgment.

[15] Finally, we might uphold the judgment of default under Shea had the district court adequately established why no other sanction would adequately deter the District from committing similar misconduct in the future. Here, again, we conclude that the record as it now stands does not support such a finding. Although the district court stated that the District “must be deterred from continuing to consciously disregard the retention regulations,” Webb II, 175 F.R.D. at 147, it did not explain why lesser sanctions would not achieve the same effect; indeed, we were informed by the District after oral argument that steps have been taken to alert District of Columbia employees as to their obligations under federal regulations to preserve employment records. See Letter from Donna M. Murasky, Assistant Corporation Counsel (May 15, 1998). Moreover, as this court noted in Bonds, if the sanction of default is based only on deterring future misconduct, “the more severe sanction [of default] must be supported by a finding of flagrant or egregious misconduct by the defendant.” Bonds, 93 F.3d at 809; see also Weisberg v. Webster, 749 F.2d 864, 871 (D.C. Cir. 1984) (dismissal pursuant to Rule 37(b)(2) must be based on “willfulness or at least gross negligence”). Although the District now concedes that it failed to recognize its responsibility under 29 C.F.R. § 1602.31, we do not think that its failure rose to the level of flagrant or egregious misconduct. The record does not reflect that, for example, the District deliberately discarded documents relating to Webb’s case in an attempt to destroy key evidence or that its delay in responding to Webb’s discovery requests was an intentionally dilatory effort to “gain an unfair tactical advantage over its litigation opponent.” Bonds, 93 F.3d at 812; cf. Synanon Church v. United States, 820 F.2d 421, 423, 428 (D.C. Cir. 1987) (affirming dismissal based on party’s “willful, deliberate and purposeful scheme” to destroy evidence) (internal quotation omitted). Rather, it seems clear from the record that the District’s fault lay in failing to recognize that its general practice of discarding files after a set period of time would result in the destruction of materials relevant to litigation and failing to notify employees systemwide of the federal regulations that imposed a duty to retain such materials.[22] This lack of compliance is

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certainly serious, and must be addressed, but it does not appear to us to warrant sanctions as severe as default.

[16] At this point, then, we are not persuaded that a default judgment was the only punitive option available to the district court. Because, however, we recognize that Shea’s analytical framework “is not to be applied woodenly in evaluating the myriad and diverse factors that influence district judges in managing their caseloads,” Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 167 (D.C. Cir. 1990), we will refrain from substituting our judgment for the district court’s. Instead, we vacate the judgment and remand to the district court for further consideration of less onerous sanctions.[23]

B. The Remedy
[17] Because we are remanding this case for further proceedings, we address the propriety of the district court’s order directing that Webb be rehired to a DS-12 Special Assistant position, since if Webb prevails on the merits of his unlawful termination claim, or if the district court sufficiently justifies its sanction of default, the issue of the appropriate remedy will once again come to the fore.

[18] As a general rule, a district court “has broad discretion to fashion appropriate equitable relief for a Title VII plaintiff” including, but not limited to, reinstatement; this court’s review is therefore limited to determining whether the district court abused that discretion. Castle v. Rubin, 78 F.3d 654, 657 (D.C. Cir. 1996) (citing 42 U.S.C. § 2000e-5(g)(1) (1993)); Johnson v. Brock, 810 F.2d 219, 224 (D.C. Cir. 1987). Generally, we would not disturb a district court’s decision to order reinstatement as a remedy for a Title VII violation. We think it important to recognize, however, that a successful Title VII plaintiff is entitled only to appropriate equitable relief, see, e.g., 42 U.S.C. § 2000e-5(g)(1) (1994); Castle, 78 F.3d at 657, a determination that authorizes a district court to take into account “extraordinary equitable circumstances that affect the legitimate interests of either party,” McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 362 (1995).[24] In this case, the decision to reinstate Webb to a supervisory position with the District was made without any consideration of evidence that suggested that reinstatement may not have been an appropriate remedy — namely, the claims of several employees with the District that they had been harassed, sexually and otherwise, by Webb. Because that evidence would have been relevant to the determination of whether reinstatement[25] was an appropriate remedy, we direct the district court on remand, should the remedy phase be reached, to permit the District to submit such evidence.

[19] Although reinstatement is certainly a preferred remedy in Title VII cases, it may not always be an appropriate one. Whether reinstatement is indeed appropriate may be determined only after careful consideration of the circumstances of a particular case. See, e.g., Hudson v. Reno, 130 F.3d 1193, 1202 (6th Cir. 1997), petition for cert. filed, 66 U.S.L.W. 3791 (U.S. Jun. 8, 1998) (No. 97-1987); McKnight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992). Courts

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have, for example, deemed reinstatement to be inappropriate when there is “evidence of extreme animosity” between the plaintiff and the defendant employer, see Williams v. Valentec Kisco, Inc., 964 F.2d 723, 730 (8th Cir. 1992) (internal quotation omitted); or where the employer has expressed “genuine dissatisfaction” with the plaintiff’s job performance, see Hudson, 130 F.3d at 1202. In these circumstances, although reinstatement would technically make the plaintiff whole, larger considerations of the relationship between the plaintiff and the employer and, indeed, the environment in which their relationship is situated, militate against ordering reinstatement. Cf., e.g., Ford Motor Co. v. EEOC, 458 U.S. 219, 239 (1982) (rights of “innocent third parties” may be considered in devising Title VII remedy); Thomas v. National Football League Players Ass’n, 131 F.3d 198, 207 (D.C. Cir. 1997) (district court “reasonably concluded that reinstatement would not serve the interests of justice where the employee engaged in behavior that could conceivably have given rise to a legitimate discharge under other circumstances”); Lander v. Lujan, 888 F.2d 153, 157 (D.C. Cir. 1989) (suggesting that “[i]t may well be appropriate, perhaps even required,” that a district court consider the impact of reinstatement on displaced employee).

[20] In Webb’s case, the record contains evidence that suggests that reinstatement to a supervisory position within the Department of Corrections may not be an appropriate remedy.[26]
The seven Neal claim summaries proffered by the District, if credited, suggest that Webb has engaged in repeated sexual harassment of the co-workers whom he supervised, including unwanted physical contact, see, e.g., J.A. 65 (claim summary of Karen Dudley) (“Webb stuck his hand in her pants, grabbed her belt buckle and pulled her towards him. Ms. Dudley pushed him away and told him not do to that.”); J.A. 86 (claim summary of Evella Fisher) (“Capt. Webb approached Ms. Fisher, began feeling her breasts and said `I like breast milk.’ At one point, Capt. Webb actually reached underneath Ms. Fisher’s blouse and took her breast out, feeling and squeezing it further. Ms. Fisher began crying and quickly left Capt. Webb’s office.”); unwelcome sexual advances, see, e.g., J.A. 102 (claim summary of Norma Rose Jackson) (“. . . Captain Webb called Ms. Jackson into his office, locked the door from the inside, and then requested that Ms. Jackson perform oral sex on him. . . . Ms. Jackson refused Captain Webb’s request for oral sex, but Captain Webb persisted in making unwelcome sexual advances on Ms. Jackson”); and intimidation, see, e.g., J.A. 73 (claim summary of Thyra Griffin) (“Captain Webb looked directly at Lt. Griffin and indicated

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that `I’m the master chess player here and if you don’t like it you can meet me on the parking lot, better still, you can meet me on 19th Street and deal with this 300 lb. African.'”). While we by no means suggest that these allegations proffered by the District should be accepted on face value — that is, without the benefit of a hearing in which Webb is permitted to contest them — we do think the district court erred in excluding this evidence altogether in determining whether reinstatement to a supervisory position was appropriate.[27]

III. Conclusion
[21] Our holding today should not be construed as any condonation of the District’s conduct during the prolonged discovery phase in this case. Its failure to institute a citywide policy to ensure that documents relevant to litigation were not routinely destroyed and its less than direct responses to discovery requests without doubt complicated and extended the discovery process in this case. On the basis of the record before us, however, we are not convinced that a default judgment was an appropriate response to the District’s misconduct. We conclude both that the district court did not adequately consider discovery sanctions other than a default judgment and that it improperly rejected evidence relevant to the propriety of reinstatement. We therefore vacate the default judgment against the District, as well as the order awarding attorneys’ fees and costs, and remand for further proceedings.

[22] It is so ordered.