EEOC Demonstrates That You Can’t Spoliate Voicemail That Has Not Been Shown to Exist

The EEOC filed suit against three entities alleging employment discrimination.  Defendants moved for sanctions, alleging spoliation of a voicemail message allegedly from defendants to plaintiff.  The existence of the message was substantively important.  If it existed, plaintiff failed to continue the mandatory resolution process.  If it did not, defendants failed to do so.

In hotly-disputed litigation spanning several years, the court held that defendants failed to prove that the voicemail ever existed and denied the spoliation motion before, during, and after trial. EEOC v. The Princess Martha, LLC, 2024 WL 2882236 (M.D. Fla. June 7, 2024), subsequent decision, 2026 WL 83977 (Jan. 12, 2026).

FACTS

On August 16, 2021, Ms. Sarah Branyan applied for a job with defendants. On August 18^th, she was interviewed, offered the position, and told to complete a background check and drug test.  She told the interviewer that she was a veteran with PTSD, and that her prescription medication might lead to her failing the drug test.

Ms. Branyan took the drug test on August 19^th.  On August 24, 2021, she contacted the defendants’ interviewer.  Her call was transferred to Ms. Von Bomberg.  Ms. Branyan left her a voicemail.  Two days later, on August 26^th, defendants rescinded the employment offer.

Defendants asserted that—in the interim–they had left a voice mail for Ms. Branyan on August 25^th.  She did not produce it in discovery.  The court wrote: “The subject of the instant motion is an alleged voicemail the defendants contend Ms. Branyan received on August 25, 2021 from the defendants.”

The EEOC responded that defendants failed to prove that a voicemail existed.  The Princess Martha court reviewed Fed.R.Civ.P. 37(e), and wrote that: “Before the need for a Rule 37(e) analysis, the movant must prove the evidence existed at one time.”

The evidence presented, presumably by the EEOC, was fascinating.

• “Call logs from both the defendants and Ms. Branyan show a 29–30 second call from the Princess Martha’s main line (727-xxx-xxxx) to Ms. Branyan’s cell phone (727-xxx-xxxx)[1] on August 25, 2021.”
• “Corporate Representative for T-Mobile Hillary Rapson testified during a deposition that the service code of 02A … meant ‘it’s likely that [Ms. Branyan] didn’t answer. So it rang on the customer’s device, and then, it forwarded to voicemail.’”
• “Ms. Rapson further testified ‘[i]t appears that there was [a voicemail]. But we don’t know whether there was any actual content, like if they actually left a message or it just hung open-air for that entire time.’”
• “Ms. Branyan testified at the hearing on the motion for sanctions that she ‘was sure’ she ‘didn’t have a voicemail from [the Princess Martha].’”
• “Ms. Branyan went on to testify, ‘[t]o the best of my recollection, I had never seen [the Princess Martha’s number on the phone at that time. I would have called [the Princess Martha] back immediately.’”
• “Ms. Knight [the interviewer] testified at the hearing that she did not reach out to Ms. Branyan after the August 18, 2021 interview.”
• “Ms. Von Blomberg submitted a declaration that she would have been the one with the responsibility to communicate with an applicant like Ms. Branyan.”
• “At the hearing, Ms. Von Blomberg testified she did not remember either calling Ms. Branyan or leaving a voicemail on August 25, 2021.”

THE PRE-TRIAL DECISION

On those facts, the Princess Martha court found:

No employee of the Princess Martha remembers leaving a voicemail for Ms. Branyan and Ms. Branyan does not remember receiving a voicemail on August 25, 2021. There is a similar lack of certainty regarding the call log showing the 29–30 second call from the Princess Martha to Ms. Branyan on August 25, 2021. As the T-Mobile corporate representative explained, the logs do not show whether Ms. Branyan sent the Princess Martha to voicemail, which would leave a window within the 29–30 seconds for the employee to leave a message, or if the line rang completely through, which would not leave a window within the duration of the call to leave a message. In short, there is proof that the Princess Martha’s phone line called Ms. Branyan’s cell phone on August 25, 2021…. However, the defendants have not met their burden of proof that a voicemail message existed at one point, which is the evidence they contend Ms. Branyan spoliated.

The pre-trial request for sanctions was denied.

TRIAL

The case went to trial and the jury awarded $5,083in backpay, $50,000 for emotional suffering, and $350,000 in punitive damages.

An additional fact came out. Ms. Branyan’s phone records showed the August 25^th call “and that she checked her voicemail soon afterward.”  However, Ms. Branyan testified that she was unaware of any such call or voicemail.

The August 25^th call had substantive import.  The court wrote: “An employer will not be liable under the ADA for a failure to accommodate if the employee is responsible for the breakdown of the interactive process.”

In short, if defendants did not make the call, they abandoned the process. If the call was made and plaintiff did not respond, she abandoned it.

The court wrote: “Defendants renewed their motion for sanctions after the T-Mobile representative testified at trial.”  Defendants contended that plaintiff had “abandoned” the process by not responding to the August 25^th message. The court wrote:

Defendants point to Branyan’s phone records, which demonstrate that a call was placed to her phone from the Princess Martha’s phone number the day after she requested a call back from Von Blomberg…. Despite Branyan’s denial that she received any such call or voicemail, the logs show that she checked her voicemail a few minutes later…. Defendants argue that Branyan’s failure to call the Princess Martha back in response to the alleged voicemail constitutes an abandonment of the interactive process that is fatal to her failure to accommodate claim.

Defendants argued that the testimony established that a recording existed and that it was only a hypothetical response that the inbox may have been full. They asserted that they had only to prove the existence of the message, not its contents. They pointed to their preservation letter and the lack of any affirmative preservation steps by Ms. Branyan.

The EEOC responded in part that Ms. Von Blomberg, defendants’ employee, could not remember making the call to Ms. Branyan.

The court determined that there was evidence to support that it was the defendants, not Ms. Branyan, that failed to engage in the required interactive process.  In addition to Ms. Von Blomberg’s vague testimony: “Moreover, although the call to Branyan from the Princess Martha was placed at 12:21 PM, by 2:46 PM on the same day Von Blomberg had scheduled an interview for the same position with another candidate.”

Defendants’ renewed sanctions motion was denied at trial. The court decided that defendants failed to show that Ms. Branyan was responsible for the breakdown of the interactive process.

POST-TRIAL MOTIONS

Post-trial motions were filed and decided on January 12, 2026.  2026 WL 83977.  In the post-trial motions, defendants sought to “revisit” denial of their sanctions motion.

The T-Mobile representative testified that a call from the Princess Martha went to Branyan’s voicemail at a time when her phone was on and connected to the service network…. The call lasted 29 seconds, which included any time the call was ringing through, the time to listen to Branyan’s voicemail greeting, and the time of any message that was left…. The phone records do not reveal whether a spoken message, a blank message, or any message at all was left…. Branyan’s phone’s caller ID was active during the call, but the records do not reveal whether the caller ID displayed the Princess Martha’s name or just the phone number…. Branyan checked her voicemail 15 minutes after the call from the Princess Martha…. The call to voicemail [by Ms. Branyan] lasted 28 seconds, including the time to enter her pin.

Post-trial, defendants argued bad faith on these facts. Plaintiff reiterated that there was no proof that the voicemail existed because the T-Mobile testimony could not rule out several alternative scenarios.

Applying Fed.R.Civ.P. 37(e), the Court wrote: “Defendants have not established that Branyan acted with an intent to deprive Defendants of adverse evidence.” The court did not infer bad  faith, writing: “It remains unclear whether a voicemail ever existed, which is relevant to the Court’s determination that Defendants have not proven Branyan intentionally destroyed it….  Even if a spoken voicemail was left, however, Defendants have not established that Branyan was aware of it or that she intentionally failed to preserve it. The trial evidence was equivocal.”  This prevented an adverse inference under Rule 37(e)(2).  It appears that defendants did not request application of Rule 37(e)(1).

Damages were reduced to the statutory cap after a number of other issues were addressed. Princess Martha was hard fought litigation.  Earlier, defendants’ Rule 11 motion was denied.  It was based on summary judgment on Count I. EEOC v. Princess Martha, LLC, 2025 WL 1547496 (M.D. Fla. May 30, 2025). Cross-motions in limine were decided in EEOC v. Princess Martha, LLC, 2025 WL 1101476 (M.D. Fla. Apr. 14, 2025). Exhaustion of remedies was decided in EEOC v. Princess Martha, LLC, 705 F. Supp. 3d 1353 (M.D. Fla. 2023). A motion for protective order regarding a second deposition of Ms. Von Bomberg was resolved in EEOC v. Princess Martha, LLC, 2023 WL 11056503 (M.D. Fla. Oct. 10, 2023). A motion for partial judgment on the pleadings was denied in  EEOC v. Princess Martha, LLC,  2023 WL 3569348 (M.D. Fla. May 19, 2023).

Here, the EEOC attorneys made a compelling case.  Discussing G.H. Le Doux v. Western Express, Inc., 2023 WL 2842777 (W.D. Va. Apr. 7, 2023), I wrote that the key takeaway was “don’t spoliate evidence when your opponent has a photograph of it.”  ESI 101:  Don’t Spoliate Evidence That’s Been Photographed (May 7, 2023).  There, Plaintiff sought sanctions for spoliation of Mr. Worthy’s “personal tablet.”  Defendants initially denied it existed; however, there was photographic evidence of it.

Here, the EEOC was able to convince the court that the defendants failed to show that the purportedly missing voicemail existed.

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[1] Although the court included the actual phone numbers, I have omitted them.