The U.S. Equal Employment Opportunity Commission (EEOC) challenged a SunTrust bank in Gulf Gate, Fla., for destroying surveillance video from a period of alleged sexual harassment and persuaded a district court in an April 7, 2014, decision to introduce evidence at trial about the bank?s failure to preserve the video footage.
Several bank tellers?Marcia Vescio, Heather Caldwell, Jena Lynch and Delia Timaru-Paradis?alleged that Kenneth Sisson, their supervisor, sexually harassed them. Some said he stood so close behind them they could feel his breath on their necks and that they were trapped by him at the teller counter.

Others alleged he made demeaning comments about them, comparing their bodies unfavorably to Hooters waitresses. For example, Vescio alleged that Sisson said, ?I wish you had legs like that? comparing her to a bank customer who was a Hooters waitress. Caldwell said he told her she would get more accounts if she donned the attire of a Hooters waitress. He also suggested Timaru-Paradis wear a bathing suit to work to attract customers and allegedly fondled her thighs and buttocks.

One evening, Sisson allegedly followed Timaru-Paradis to her car, grabbed her forcefully and held her against her will. He kissed her, and she allegedly had to shove him with all of her might to get away from him.

Video

SunTrust?s Document Retention Policy provides for the automatic destruction of surveillance video every 90 days, unless it is being used for investigations or litigation. Its policies also call for the retention of all materials used in an investigation for two years.

Timaru-Paradis told Shelley Jones, an HR advisor for SunTrust, on July 6, 2010, that Sisson had sexually harassed her and that she had worked unpaid overtime. After security personnel reviewed the video, Jones classified Timaru-Paradis? wage and hour claims as unsubstantiated. But her investigation summary classified the harassment allegations as ?partially substantiated.?

After using the surveillance video to investigate Timaru-Paradis? claims, SunTrust did not retain the footage, letting the video be recorded over. The EEOC did not have the chance to view the footage.

The EEOC claimed bad-faith destruction of direct evidence, which would have shown what the plaintiffs meant by Sisson standing uncomfortably close behind them. The agency sought an ?adverse inference jury instruction? that the video would have shown Sisson sexually harassing Timaru-Paradis and Lynch by getting too close. Alternatively, it asked to introduce evidence at trial about SunTrust?s surveillance video system, its policies relating to the use and preservation of surveillance video and its failure to preserve the video footage.

Duty to Preserve Footage

The court agreed with the EEOC that the bank?s duty to preserve the videos arose when Timaru-Paradis reported to HR that she was the victim of sexual harassment and had retained an attorney.

?Jones reaffirmed her knowledge that litigation was imminent on July 14, 2010, and her notes from that day specify that the following items should be evaluated: ?camera, computer log-in, notebook.? Based on Jones? response to Timaru-Paradis? communications on July 6, 2010, the court reaches the conclusion that SunTrust should have anticipated litigation, specifically, sexual harassment claims, and should have started preserving evidence as of July 6, 2010,? the court stated.

Crucial Evidence

The court also concluded that the evidence was crucial for the EEOC, even though the bank argued that the surveillance video was not the only way to prove what occurred because there were eyewitnesses to the alleged conduct.

?Although SunTrust is correct that other employees could testify about what they observed while working at the Gulf Gate branch, the video surveillance would have been unbiased, direct evidence about what occurred between Sisson and the plaintiffs. Without the video surveillance, the parties must now engage in ?he-said, she-said? arguments, which could have been avoided to some extent had the video been preserved,? the court said.

It rejected out of hand SunTrust?s argument that the surveillance camera video was of low quality and would not have been helpful evidence.

No Bad Faith

The court held that the bank?s conduct came ?close to crossing into the realm of bad faith,? but concluded that it didn?t.

?SunTrust describes the evisceration of the surveillance footage as simply ?unfortunate,? ? the court said. And it emphasized that ?Here, there is no direct evidence showing that any SunTrust employee or representative directed that the tapes be destroyed in an effort to gain an unfair advantage in this suit. And the court acknowledges that mere negligence in losing or destroying the records is not enough for an adverse inference.?

However, the court said it may reconsider this determination at a later date if presented with further evidence showing bad faith by the bank.

This decision is EEOC v. SunTrust Bank, No. 8:12-cv-1325-T-33MAP (M.D. Fla. 2014).