Elizabeth Kish; Victoria Elder v. City of Akron

1 Jumbert is not party to this appeal.
NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0582n.06
Filed: August 16, 2006
Nos. 02-3631/3632
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ELIZABETH KISH; VICTORIA ELDER,
Plaintiffs-Appellants/
Cross-Appellees,
v.
CITY OF AKRON,
Defendant-Appellee/
Cross-Appellant
GEORGE JUMBERT,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
C O U R T F O R T H E
NORTHERN DISTRICT OF
OHIO
O P I N I O N
BEFORE: NORRIS, GILMAN and ROGERS, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. This appeal involves a substantial jury award made to
two clerical employees of Akron’s Department of Public Services. Plaintiffs Victoria Elder and
Elizabeth Kish worked respectively as a data entry clerk and secretary in the department’s Plans and
Permits Division (“the Division”), which was managed by defendant George Jumbert.1 They appeal
from an order partially granting a request for remittitur that reduced Kish’s damage award by
$480,000 and the award to Elder by $380,000. Despite the substantial remittitur, the amended

-- 1 of 13 --

Nos. 02-3631/3632
Kish v. City of Akron
- 2 -
judgment entry still awards Kish $493.35 under the Fair Labor Standards Act of 1938 (“FLSA”),
29 U.S.C. §§ 201-219, and $480,500 for spoliation of evidence; Elder’s amended award is $414.98
for her FLSA claim and $380,500 for spoliation.
In a cross-appeal, the City contests the proper construction of Ohio Rev. Code § 149.351,
which prohibits the removal or destruction of public records and prescribes penalties for doing so.
Beyond that, the City contends that the trial court erred when it permitted the jury to consider
plaintiffs’ spoliation claims; that the statutory immunity provided by Ohio Rev. Code § 2744.05(A)
applies in this case; and, lastly, that the jury’s award of punitive damages was so excessive that it
violates the Due Process Clause of the Fourteenth Amendment.
On April 29, 2004, this court issued an order certifying several questions to the Supreme
Court of Ohio pursuant to Rule XVIII of that Court’s Rules of Practice. The Court accepted two of
the six questions posed in our order. Both questions relate to the meaning of terms used in Ohio
Rev. Code § 149.351. Having recently received guidance from the Court, Kish v. City of Akron, 846
N.E.2d 811 (Ohio 2006), we are now in a position to resolve the appeal.
I.
At its core, this dispute concerns the manner in which plaintiffs were compensated for
overtime. During the period at issue, the Division maintained an informal system of recording
compensatory time. Rather than report it to the Finance Department as required by the City’s
personnel policy, the Division kept compensatory time records in a file folder within the office. In
fact, for part of her tenure, Elder kept track of the records herself. According to Jumbert’s trial
testimony, the policy afforded employees more flexibility in the way that they chose to use their

-- 2 of 13 --

Nos. 02-3631/3632
Kish v. City of Akron
- 3 -
accrued compensatory time. He conceded, however, that a City ordinance required that employees
who worked overtime be compensated at time and a half while the informal program only
compensated them on an hour for hour basis; the collective bargaining agreement between the City
and municipal employees’ union incorporated the terms of this ordinance as well.
In the fall of 1996, Kish questioned Jumbert about why her compensatory time did not appear
on her pay stub when other records, such as sick leave and vacation time, did. According to her
testimony, he explained that employees were compensated hour for hour under the informal
program, not at the time and a half rate that was due. Kish, who was a member of the Civil Service
Personnel Association, Inc. (“the Union”), contacted a representative but did not file a formal
grievance.
Although Kish continued to raise the issue with Jumbert, she did not file a grievance until
1999. On July 8, 1999, Union President Dale Sroka sent Jumbert a letter concerning the overtime
procedure. The following month the informal system was discontinued and employees were
instructed that they had to work an 8:00 a.m. to 4:30 p.m. shift as outlined in their collective
bargaining agreement.
Elder resigned on February 23, 2000. Cristen Stevens assumed her payroll duties. Shortly
thereafter, Stevens discarded all the files related to the informal compensatory time program.
According to her trial testimony, she did not tell anyone of her decision and knew nothing about
Kish’s grievance or any potential litigation. She acted because the informal program had been
discontinued.

-- 3 of 13 --

Nos. 02-3631/3632
Kish v. City of Akron
2 The parties consented to have a magistrate judge preside over the proceedings below. 28 U.S.C. § 636(c)(1).
- 4 -
Before this occurred, Sroka warned Jumbert that Kish intended to pursue her complaint with
the Department of Labor’s Wage and Hour Division. The City’s labor relations manager informed
Sroka that the City would not reimburse Kish for any time owing under the informal system despite
being told that she intended to pursue legal remedies.
In April 2000, attorneys for plaintiffs sought personnel records for compensatory time and
discovered that they had been thrown away. Plaintiffs filed a complaint against the City and Jumbert
on August 10, 2000, alleging violations of the FLSA; unlawful retaliation for pursuing their FLSA
claims; destruction of public records, Ohio Rev. Code § 149.351; and spoliation of evidence. The
matter went to trial and on December 10, 2001, the jury returned the following verdict:
As to plaintiff Kish:
FLSA claim: $493.35 for unpaid overtime;
Public records claim: $480,000.00;
Spoliation claim: $500.00 actual damages; $480,000 punitive damages;
As to plaintiff Elder:
FLSA claim: $414.98 for unpaid overtime;
Retaliation claim: defense verdict;
Public records claim: $380,000.00;
Spoliation claim: $500.00 actual damages; $380,000 punitive damages.
A district court 2 order partially granting defendants’ motion for a new trial or remittitur
eliminated the damage award for destruction of public records on the basis that the nearly identical
awards for spoliation and destruction of public records constituted an impermissible double
recovery. This appeal followed.

-- 4 of 13 --

Nos. 02-3631/3632
Kish v. City of Akron
3 While Spires arose before the enactment of Ohio Rev. Code § 2744.05(A), there is nothing to suggest that the
validity of its holding was altered by the enactment of the statute.
- 5 -
II.
1. Reduction of Jury Award
We begin our analysis by considering whether the reduction in the damages awarded by the
jury was appropriate. Plaintiffs take issue with the district court’s conclusion that the damages
awarded under Ohio Rev. Code § 149.351 must be eliminated because they duplicated those
awarded for spoliation. While the City obviously defends that decision, it also argues that Ohio Rev.
Code § 2744.05(A) prohibits an award of punitive damages against a municipality and, alternatively,
that the award of punitive damages must be reduced because it is so “grossly excessive” that it
“enter[s] the zone of arbitrariness that violates the Due Process Clause of the Fourteenth
Amendment.” BMW of North America v. Gore, 517 U.S. 559, 568 (1996).
While we agree that the punitive damages awarded to plaintiffs must be stricken, we do not
base our conclusion on either a theory of double recovery or upon Ohio Rev. Code § 2744.05(A).
Instead we look to the following tenet of Ohio law: “In the absence of a statute specifically
authorizing such recovery, punitive damages can not be assessed against a municipal corporation.”
Spires v. City of Lancaster, 502 N.E.2d 614, 615 (Ohio 1986) (syllabus) (citing Ranells v. Cleveland,
321 N.E.2d 885 (Ohio 1975)).3 Thus, for punitive damages to be available to plaintiffs in their
spoliation claim, they must cite to a specific statute authorizing such an award; they have not done
so, nor have they cited to a single Ohio case in which punitive damages against a municipality were

-- 5 of 13 --

Nos. 02-3631/3632
Kish v. City of Akron
- 6 -
affirmed absent a specific statute. Accordingly, the award of punitive damages against the City must
be vacated.
Because we hold that the award of punitive damages are precluded as a matter of Ohio law,
we need not reach the City’s Fourteenth Amendment argument concerning excessive damages.
2. Spoliation Claims
In its cross-appeal, the City contends that the district court erred when it declined to grant
the City judgment as a matter of law with respect to the spoliation claims. This court recently
explained the standard of review applied in this situation:
We review the denial of a motion for judgment as a matter of law de novo. McCurdy
v. Montgomery County, 240 F.3d 512, 516-17 (6th Cir. 2001) (citing Cook v. Am.
S.S. Co., 53 F.3d 733, 740 (6th Cir. 1995)). Fed.R.Civ.P. 50(a)(1) states that “[i]f
during a trial by jury a party has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for that party on that issue,”
then judgment as a matter of law for the opposing litigant is appropriate. The motion
“may not be granted unless reasonable minds could not differ as to the conclusions
to be drawn from the evidence.” McJunkin Corp. v. Mechanicals, Inc., 888 F.2d
481, 486 (6th Cir. 1989). An appeals court is not to “weigh the evidence, pass on the
credibility of witnesses, or substitute its judgment for that of the jury.” Toth v. Yoder
Co., 749 F.2d 1190, 1194 (6th Cir. 1984). Instead we must view the evidence in the
light most favorable to the opposing party, drawing all reasonable inferences in its
favor. Ibid.
Bowman v. Corrections Corp. of America, 350 F.3d 537, 544 (6th Cir. 2003).
In Ohio, a spoliation of evidence claim has the following elements: “(1) pending or probable
litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is
probable, (3) willful destruction of evidence by defendant designed to disrupt the plaintiff's case, (4)
disruption of the plaintiff’s case, and (5) damages proximately caused by the defendant’s acts.”

-- 6 of 13 --

Nos. 02-3631/3632
Kish v. City of Akron
- 7 -
Smith v. Howard Johnson Co., Inc., 615 N.E.2d at 1038. According to the City, plaintiffs failed to
come forward with sufficient evidence on each of these elements to merit submission to the jury.
The district court rejected the City’s sufficiency of the evidence challenge in these terms:
According to Ms. Stevens, one of her first actions was to destroy plaintiffs’ records.
Plaintiffs had evidence to contradict this statement showing a much later record
destruction date, but in any event, the destruction of employee records by the record
custodian was contrary to City policy. Even if as Ms. Stevens claims one of her first
actions as record custodian was to destroy plaintiffs’ employment records, this action
was at least unusual. What followed, or more precisely did not follow, was
significant. After the record destruction was admittedly discovered, no disciplinary
action or even an admonition was given to Ms. Stevens. Her supervisor expressed
no displeasure with her actions, nor did any higher ranking City official express
distress. Plaintiffs had established that higher ranking City officials had knowledge
of probable litigation involving plaintiffs’ overtime dispute. The jury simply found
that Ms. Stevens’ testimony was incredible especially since no wrong-doing on her
part was ever acknowledged. The City’s comment that it is nigh impossible to take
action against a civil service employee simply did not persuade. Not even an
unfavorable comment was entered in Ms. Stevens’ personnel files after the City
admitted that it discovered what Ms. Stevens had done. Inferences from the evidence
could lead the jury to find the records of the two provocateurs were destroyed in an
ill-conceived effort to terminate the prolonged overtime pay dispute. Therefore, the
jury could infer the worst, that the spoliation of evidence was both due to pending
or probable litigation, was the result of a willful destruction of evidence designed to
disrupt the plaintiffs’ case, and had been authorized by an official over Ms. Stevens
(or the destruction was done by a higher ranking official) who was protecting her
from adverse employment action even at the time of trial on condition she continue
the deception.
Order, May 2, 2002 at 10-11.
Perhaps the best way to approach this issue is to look first at the evidence that plaintiffs
contend makes their case, which the district court alluded to in the preceding paragraph. During
trial, Kish testified that she contacted the Department of Labor’s Wage and Hour Division and a

-- 7 of 13 --

Nos. 02-3631/3632
Kish v. City of Akron
- 8 -
private attorney in August 1999. She also indicated that she “told the union” and Vicki Elder that
she had taken these steps.
As discussed earlier, union representative Sroka informed the City’s Labor Relations Officer
James Masturzo that Kish had contacted both the Department of Labor and a private attorney.
According to Sroka, Masturzo told him, “[S]he can do what she needs to do. . . I’m not paying her.”
Moreover, Sroka told Masturzo that Kish had contacted an attorney “two or three times.” Jumbert
was present at one of these meetings.
During his testimony, Masturzo denied that Sroka ever told him that Kish had contacted
either a governmental agency or an attorney. When pressed about this denial during cross-
examination, Masturzo backed off somewhat: “You know, [Sroka] might have told me [about Kish’s
actions], but, you know, I tried to resolve the issue.”
Viewing, as we must, the evidence in a light favorable to plaintiffs, we conclude that, even
if Masturzo had stuck to his original denial, the testimony of Sroka would have been sufficient to
create a factual issue with respect to knowledge of pending litigation.
The sufficiency of the evidence needed to create a jury question concerning whether
representatives of the City willfully destroyed the compensatory time records in order to disrupt
litigation represents a much closer call. Ms. Stevens took over the duties of records retention clerk
for the Division and testified that she discarded the records because the informal program had been
scrapped. According to her, five years worth of records were discarded. Stevens indicated that
those records were contained in a single file cabinet maintained by the payroll clerk.

-- 8 of 13 --

Nos. 02-3631/3632
Kish v. City of Akron
- 9 -
Plaintiffs point out that Stevens’ testimony is inconsistent with their own. Kish testified that
only two years of records were contained in the file cabinet alluded to by Stevens; older records
were kept in a filing cabinet in the rear of the office. Kish indicated that when she asked John Elsey,
Stevens’ supervisor, to find her personnel records on April 7, 1999, he indicated that they were not
in either the file referred to by Stevens or in the back file cabinet. Elder, who actually maintained
the compensatory time records prior to Stevens, confirmed Kish’s testimony with respect to where
the records were kept.
During the April 7 telephone conversation with Elsey, Kish also recalled that she was told
that only her records and those of plaintiff Elder were missing from the files: “[H]e said that mine
and Vicki’s were not there, everyone else’s were.” Kish emailed Elder the substance of the
conversation with Elsey on the same day. For his part, Elsey confirmed the request for the files: “I
just did a cursory look through and there were no files at that point.” He assumed that the files were
missing because plaintiffs no longer worked in the Division. When Elsey questioned Stevens,
however, she told him that she had discarded all of the files because the program had been
abandoned. He denied telling her to do so.
Plaintiffs point to other inconsistencies that they believe bring the City’s witnesses’
credibility into question. For instance, according to plaintiff Elder, Stevens directed her
“downtown” to the City’s personnel office when she first inquired about her records. After checking
with personnel, however, she returned to Stevens who told her, “[S]ue me, sue the city, I don’t care
what you do. I don’t have [the records], they were destroyed.” In addition, Stevens had been trained

-- 9 of 13 --

Nos. 02-3631/3632
Kish v. City of Akron
- 10 -
as a records retention clerk and a jury could infer that she would have known that the destruction
of the records was in violation of policy.
Lastly, neither Jumbert nor Stevens was ever disciplined for the destruction of the records,
implying that the destruction was sanctioned by the City.
The City argues that it cannot be held liable for Stevens’ destruction of the records because
she was not acting within the scope of her employment when she did so. The City points out that
spoliation of evidence is an intentional tort; an employer can only be held liable if the “behavior
giving rise to the tort . . . facilitate[d] or promote[d] the business.” Byrd v. Faber, 565 N.E.2d 584,
588 (Ohio 1991) (“In other words, an employer is not liable for independent self-serving acts of his
employees which in no way facilitate or promote his business.”).
The district court rejected this argument:
The Court did instruct the jury to consider whether the record destruction was
unauthorized and the City would only be liable if the action was within the scope of
employment. The Court’s instructions to the jury followed those proposed by the
City. They included that the City maintained that the record destruction was an
unauthorized act and that the employee’s actions must be within the scope of
employment. The Court also gave the scope of employment instruction suggested
by the City that, “an employee is not within the scope of his or her employment when
the employee clearly and completely departs from the services or job that employee
was hired to do. When an employee acts solely for his or her own purpose, or solely
for the purpose other than the employer, the employee does not act within the scope
of his or her employment, and the employer is not liable for the employee’s act.”
(Jury Instruction 69.) The Court finds that the intent behind Byrd was conveyed to
the jury, as the City had requested.
Order, May 2, 2002 at 12-13.
It is undisputed that the jury was instructed about the scope of employment defense in a
manner proposed by the City. This means that the jury credited plaintiffs’ theory that Stevens was

-- 10 of 13 --

Nos. 02-3631/3632
Kish v. City of Akron
- 11 -
acting, not in a self-serving manner, but in an ill-advised attempt to help her employer to undermine
the plaintiffs’ FLSA claims, either on her own initiative or at the suggestion (implied or explicit) of
her superiors.
We must view the jury’s findings in a highly deferential manner: “If there is any credible
evidence to support a verdict it should not be set aside.” Farber v. Massillon Bd. of Educ., 917 F.2d
1391, 1395 (6th Cir. 1990) (emphasis added) (citing Werthan Bag Co. v. Agnew, 202 F.2d 119 (6th
Cir. 1953)). Given this standard of review, we hold that there was sufficient evidence to send the
claim to the jury for the reasons outlined by the district court.
3. Jury Instructions
The next issue is a subset of the one just discussed. The City contends that the instructions
given to the jury resulted in an inconsistent verdict. Specifically, the City argues that Stevens could
not have acted within the scope of her employment and with malice at the same time. With respect
to the statutory claim, the district court gave the following guidance:
An employee is not within the scope of his or her employment when the
employee clearly and completely departs from the services or job that employee was
hired to do. When an employee acts solely for his or her own purpose, or solely for
the purpose of a person other than his or her employer, the employee does not act
within the scope of his or her employment, and the employer is not liable for the
employee’s act.
. . . .
[A]n employer may be liable for malicious injuries or damages caused by the
employee acting within the scope of employment and with the intent to carry out the
employer’s purposes.
Turning to spoliation, the court explained punitive damages to the jury in these terms:

-- 11 of 13 --

Nos. 02-3631/3632
Kish v. City of Akron
- 12 -
. . . You may decide that the defendant is liable for punitive damages if you find by
clear and convincing evidence that the City of Akron authorized, participated in, or
ratified acts or failure to act of an employee that demonstrated spoliation to avoid
liability for plaintiffs’ claim of failure to pay overtime wages. Plaintiffs must
establish the act of spoliation was inextricably intertwined with plaintiffs’ claim for
unpaid wages. The action by the City of Akron must be due to malice or oppression.
. . . .
Malice includes that state of mind under which a person’s conduct is
characterized by hatred, ill will, or a spirit of revenge, or a conscience disregard for
the rights and safety of other persons that have that has [sic] a great probability of
causing substantial harm.
The City raised this argument in its motion for a new trial and the district court rejected it
on the theory that the jury could have inferred that “the spoliation of evidence was both due to
pending or probable litigation, was the result of a willful destruction of evidence designed to disrupt
the plaintiffs’ case, and had been authorized by an official over Ms. Stevens (or the destruction of
records was done by a higher ranking official) who was protecting her from adverse employment
action even at the time of trial on condition she continue the deception.” Order, May 2, 2002 at 11.
The verdict is not inconsistent if one assumes that the jury found that Stevens acted at the
direction of a supervisor and destroyed the records to prevent plaintiffs from prevailing in their
FLSA claims. While this finding may have limited support in the record, it cures the inconsistency
problem. Given the deference we must accord to the jury’s factual findings, we adopt the reasoning
of the district court on this issue.
4. Damages under Ohio Rev. Code § 149.351

-- 12 of 13 --

Nos. 02-3631/3632
Kish v. City of Akron
- 13 -
Finally, the City argues that statutory damages should have been capped at $1,000 because
the destruction of the records occurred in a single violation. The Supreme Court of Ohio accepted
our certification of this question and rejected the City’s position. Kish v. City of Akron, 846 N.E.2d
811 (Ohio 2006). Accordingly, the jury’s award of damages pursuant to Ohio Rev. Code § 149.351
is affirmed.
III.
The judgment of the district court is vacated and the cause remanded for an entry of
judgment consistent with this opinion.

-- 13 of 13 --