No Adverse Inference When Employer Destroyed Records Pursuant to Company’s Retention Policy

Hicks v. Wegman’s Food Market, 2011 WL 499368 (D.N.J., February 10, 2011) – In this race discrimination case, the plaintiff, an African American, requested an “adverse inference” jury charge where the employer had destroyed personnel records of a similarly-situated Caucasian employee that the plaintiff sought in discovery. The requested charge would have permitted the jury to infer that the employer did not produce the documents because it feared they were harmful to its case. The court denied the plaintiff’s request because it determined that the employer did not act in bad faith. Rather, the records in question were destroyed pursuant to company policy under which such records were maintained only for six years following an employee’s termination, at which time the company had no notice that they could be relevant to later litigation.