*1 This matter comes before the Court on the Magistrate Judge's Final Report and Recommendation [Doc. 93]. This Court finds as follows:

Nate Stimson (“Plaintiff”) was terminated from his employment with Stryker Sales Corporation (“Defendant”) on March 22, 2016, after twelve years of service. As a result of the firing, Plaintiff filed this action against Defendant alleging the following: (1) retaliation in violation of Title VII; (2) violation of the Age Discrimination in Employment Act (“ADEA”); and (3) defamation. [Doc. 1].

Specifically, in Count One, Plaintiff claims that Defendant terminated him because he reported a co-worker's sexual harassment of another. In Count Two, Plaintiff alleges that he was fired because he was forty years old. Finally, in Count Three, Plaintiff alleges that when his supervisor sent an e-mail to other employees informing them that Plaintiff was fired for compliance reasons, he was defamed.

Defendant moved for summary judgment on July 16, 2018, and on January 24, 2019, the Magistrate Judge issued a Report and Recommendation. [Docs. 73 and 93]. As to Count One, the retaliatory termination claim, the Magistrate Judge recommended that summary judgment be granted because Plaintiff failed to show that he opposed conduct which constituted a violation of Title VII or that he had a good faith, reasonable belief that his employer was engaged in conduct made unlawful by Title VII. Ultimately, because Plaintiff reported a co-worker's alleged sexual harassment of someone who was not employed by Defendant—instead of the harassment of someone who was employed by Defendant—the Magistrate Judge determined that Title VII did not apply and Plaintiff could not have had a good faith, reasonable belief that Defendant had engaged in Title VII discrimination.

As to Count Two, the age discrimination claim, the Magistrate Judge recommended that summary judgment be denied. The Magistrate Judge determined that Plaintiff was able to meet his burden to show that the firing was pretextual by pointing to inconsistencies in the way Plaintiff, who was a member of the protected class, was disciplined differently from an individual ten years younger.

As to Count Three, the defamation claim, the Magistrate Judge recommended granting summary judgment. Because the communication was sent only to other employees of Defendant, the Magistrate Judge determined that the communication was not published. The Magistrate Judge alternatively determined that even if the intracorporate exception did not apply, the communication did not impute Plaintiff with the commission of a criminal offense.

A district judge has broad discretion to accept, reject or modify a magistrate judge's proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews any portion of the Report and Recommendation that is the subject of a proper objection on a de novo basis and any non-objected-to portion under a “clearly erroneous” standard. Both parties filed objections to the Magistrate Judge's Final Report and Recommendation.

I. Plaintiff's Objections

*2 Plaintiff objected to certain portions of the Magistrate Judge's Report and Recommendation. Specifically, Plaintiff objected to the extent that the Magistrate Judge recommended dismissing his claim for retaliation under Title VII and dismissing his claim for defamation under Georgia law. [Doc. 96].

a. Retaliation

In early 2016, James Runyan, who was employed by Defendant and assigned to WellStar Kennestone Hospital (“WellStar”), observed Denise Adams, who was a nurse employed by WellStar, changing her clothes after her shift. [Doc. 90-2, p. 3]. Although Runyan admitted that he saw Adams change her clothes, it is disputed whether he intentionally watched her as she changed or only saw her by accident. Nevertheless, Runyan confronted Adams several times after witnessing her change her clothes and told her that he “liked what he saw.” Id. Aware of Runyan's actions towards Adams, Plaintiff, who was also employed by Defendant, reported Runyan's behavior to Runyan's supervisor, Rebecka Solar. Id. After Plaintiff was terminated from his employment on March 22, 2016, Plaintiff argued that he was terminated for reporting Runyan's alleged sexual harassment of Adams.

The Magistrate Judge, while condemning the behavior of Runyan, determined that Plaintiff did not engage in statutorily protected activity under Title VII because Adams was an employee of WellStar and not Defendant. Plaintiff argues, however, that the Magistrate Judge too narrowly construed protected activity, and the result is a “troubling double-standard that sexual harassment in the workplace is only prohibited if the harassment is reported to the employer of the victim, not the employer of the alleged harasser.” [Doc. 96]. Plaintiff further argues that “protected opposition should be defined based on the character of the conduct reported, not on whether it is reported to the harasser's employer or the victim's employer.” Id.

To prevail on a retaliation claim, the plaintiff must show the following: (1) that he engaged in statutorily protected activity; (2) that he suffered a materially adverse action; and (3) that a causal connection existed between the protected activity and the adverse action. Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010). Protected activity includes opposition to “any practice made an unlawful unemployment practice” under Title VII. Id.

In the Eleventh Circuit, an employee's discrimination against a third party is not an unlawful employment practice and opposition thereto does not constitute protected activity. Edwards v. Ambient Healthcare of Ga., Inc., 674 F. App'x 926, 930 (11th Cir. 2017). In this case, Plaintiff alleges that Runyan, his co-worker, harassed a nurse who was not an employee of Defendant (a third party). Because the nurse was not employed by Defendant, this Court finds that Runyan's actions towards a non-employee is not an “employment practice made unlawful” by Title VII. Id. As such, summary judgment is appropriate.

Contrary to the evidence presented, Plaintiff now asserts that Adams was a co-worker and the harassment occurred in their shared workplace. Specifically, Plaintiff argues that the Magistrate Judge erred by classifying the nurse as a client, and that she should have been considered a co-worker. This Court finds Plaintiff's arguments without merit, especially since Plaintiff admitted in his deposition that he reported Runyan's conduct “[a]s a responsibility to [Ms. Adams], the customer.” [Doc. 83, p. 43]. Ultimately, despite the close working relationship of Defendant's employees and WellStar's employees, Plaintiff reported to his employer actions committed by a co-employee towards a third party not employed by Defendant. Because the nurse was not employed by Defendant, Plaintiff's retaliation claim must fail.

*3 Plaintiff alternatively argues that he had a good faith reasonable basis to conclude that he was opposing conduct prohibited by Title VII because “Adams was an employee being harassed in her workplace.” In an attempt to support his position, Plaintiff cites to McMenemy v. Rochester, 241 F.3d 279, 284 (2d Cir. 2001). But McMenemy does not help Plaintiff. In McMenemy, the Second Circuit Court of Appeals, consistent with the Eleventh Circuit's holding in Edwards, recognized that when a plaintiff reports the harassing behavior of a co-employee toward a third party, the behavior is unrelated to an employment practice made illegal by Title VII. Id. at 283. Importantly, when addressing whether a plaintiff could have a good faith reasonable basis to conclude that he was opposing conduct prohibited by Title VII, the Second Circuit Court of Appeals held that “it should have been plain to the plaintiff and to any other lay person that his complaint of retaliation for opposing discrimination by co-employees with respect to the general public was not a complaint about an employment practice.” Id. at 285 n.3. Just as it should have been plain to the plaintiff in McMenemy, this Court finds that it should have been plain to Plaintiff that his complaint of retaliation for opposing Runyan's behavior with respect to a third party was not a complaint about an employment practice.

Ultimately, this Court cannot ignore the fact that Plaintiff is unable to cite to a single case from the Eleventh Circuit to support his position that he engaged in protected activity when he reported the conduct of a co-employee towards a third-party. As such, Plaintiff's objection is OVERRULED.

b. Defamation

Plaintiff also argues that the Magistrate Judge erred in recommending that summary judgment be granted as to Plaintiff's defamation claim. The Magistrate Judge recommended that summary judgment be granted for two reasons: (1) the purportedly defamatory e-mails, which will be explained in greater detail in the analysis that follows, were intra-company, and therefore not published; and (2) the term “compliance” cannot constitute defamation per se because the term does not impute Plaintiff with the commission of a specific crime punishable by law. In Plaintiff's objection, Plaintiff argues that the intra-corporate exception does not apply. As to whether the word “compliance” can constitute defamation per se, Plaintiff concedes that the e-mails do not impute to him the commission of a specific crime. Plaintiff, however, argues that the e-mails still constitute defamation per se because the e-mails were damaging to his trade, profession or office.

i. Intracorporate Privilege

In every defamation case, the plaintiff must prove publication of the defamatory statement. Brewer v. Metro. Atlanta Rapid. Trans. Auth., 419 S.E.2d 60, 61 (Ga. Ct. App. 1992). Ordinarily, “publication is accomplished by communication of the slander [or defamation] to anyone other than the person slandered [or defamed].” Kurtz v. Williams, 371 S.E.2d 878, 880 (Ga. Ct. App. 1988). When the communication is intracorporate, however, “and is heard by one who, because of his/her duty or authority has reason to receive the information, there is no publication of the allegedly slanderous material ....” Id. The burden of proving whether the intracorporate privilege applies rests with Defendant. Hayes Microcomputer Prods., Inc. v. Franza, 601 S.E.2d 824, 829 (Ga. Ct. App. 2004).

Plaintiff claims that two different e-mails sent by Jason Smith were defamatory. On March 28, 2016, Smith, Plaintiff's former supervisor, had an email conversation with Aaron Pflugner wherein Plaintiff was mentioned. [Doc. 90-4, p. 8]. Although Pflugner is employed by Defendant, this Court does not know his position within the company. In the e-mail conversation, Smith appears to be seeking information about a possible candidate to fill Plaintiff's position and tells Pflugner that he had to let Plaintiff go. Id. Pflugner responds, “probably not appropriate for me to ask[,] but what happened with [Plaintiff]?” Id. Smith responded, “Compliance ... sucks[.]” Id.

The relevant question is whether, because of Pflugner's duty or authority, he had reason to receive the information from Smith about Plaintiff's reason for being fired. Given the lack of evidence concerning who Pflugner is or what his job duties entail, this Court finds that Defendant failed to show the exception was satisfied. No evidence was presented regarding Pflugner's job title, or whether he had authority or reason to receive the information from Smith. As such, Defendant did not meet its burden to show that the intracorporate privilege applied as to this e-mail, and therefore to the extent Plaintiff objects to the Magistrate Judge's finding that the exception applied, Plaintiff's objection is SUSTAINED.

*4 The second e-mail was sent by Smith on March 31, 2016, to Nicolette Mechem, Jake Thiede and Samantha Heumann. Id. at 9. The relevant portion of the e-mail states: “Not sure if you heard but we had to let [Plaintiff] go last week. Tough situation (compliance).” Id. Although these three individuals appear to be employed by Defendant, this Court is without any knowledge as to their job titles or responsibilities. For the same reasons that the e-mail to Pflugner was not protected by the intracorporate privilege, this e-mail is not protected either. Defendant did not meet its burden to show that the intracorporate privilege applied, and therefore Plaintiff's objection is SUSTAINED.

ii. Defamation per se

The Magistrate Judge did not analyze whether Smith's e-mails were damaging to Plaintiff's trade, profession or office. At issue here is whether Smith's e-mails that give the reason for Plaintiff's termination—compliance—are defamatory per se as it relates to Plaintiff's profession.

O.C.G.A. § 51-4-3 provides that defamation includes, among other things, making charges against another “in reference to his trade, office, or profession, calculated to injure him therein.”

Bellemead, LLC v. Stoker, 631 S.E.2d 693, 695 (Ga. 2006). In determining whether the statement was defamatory per se, which is what Plaintiff alleges in this case, a court only looks to “the plain import of the words spoken[,]” which must be injurious on their face, without the aid of extrinsic proof. Id. “Should extrinsic facts be necessary to establish the defamatory character of the words, the words may constitute [defamation], but they do not constitute [defamation] per se.” Id.

It is “inappropriate to rely on innuendo to determine if the words at issue constitute slander per se.” Id. at 696. Classic innuendo exists if “additional explanation or interpretation is needed to turn what appears to be an anodyne statement into a defamatory one.” Dougherty v. Harvey, 317 F. Supp. 3d 1287, 1292 (N.D. Ga. 2018). In other words, “an innuendo is the plaintiff's explanation of a statement's defamatory meaning when that meaning is not apparent from the statement's face.” Id.

This Court is not aware of any Georgia courts that have analyzed whether the vague term “compliance,” when given as a reason for a person's termination, can be defamatory per se. Black's Law Dictionary defines compliance as “the act of yielding to some command, demand, requirement, etc.; conduct in accordance with a direction, exhortation, proposal, condition, request, wish, etc.; practical assent” or “[t]he state of being in conformity with some command, demand, requirement, etc.; harmony, agreement or accordance” or “[a] disposition to yield to others' preference; the habit of politely obliging; complaisant.” Compliance, Black's Law Dictionary (11th ed. 2014).

Because the term “compliance” is so vague, this Court cannot find that it is defamatory unless it employs innuendo or a strained construction, which is not permissible if the cause of action is defamation per se, as it is here. This is not a situation like American Southern Insurance Group, Inc. v. Goldstein where the employer made a false statement that the employee was terminated for misappropriation of funds. 660 S.E.2d 810, 821 (Ga. Ct. App. 2008). The plain import of accusing someone of misappropriation of funds is obviously defamatory. Everyone knows that misappropriation of funds is bad. Id. Here, however, this Court cannot reach the same conclusion unless it employs innuendo to understand that in the context of medical sales, “compliance” could potentially mean a violation of federal statutes. Of course, “compliance” could also mean that Plaintiff refused to comply with a personnel policy that is completely unrelated to his specific sales role and thus has virtually no impact on his profession. “[T]he negative inference a hearer might take from the words does not subject the speaker to liability for [defamation] per se.” Bellemead, LLC, 631 S.E.2d at 695.

*5 Ultimately, this Court finds that the term “compliance” cannot support a claim for defamation per se since the word is not, on its face, injurious. If the statement that Plaintiff was fired for “compliance” is defamatory, it cannot be so under the “per se” provision of O.C.G.A. § 51-5-4(a)(3). See Davita Inc. v. Nephrology Assocs., P.C., 253 F. Supp. 2d 1370, 1378 (S.D. Ga. 2003). It is inappropriate to rely on innuendo, and therefore summary judgment is appropriate. To the extent that Plaintiff objects to the Magistrate Judge's finding that the word “compliance” is not defamatory per se, Plaintiff's objection is OVERRULED.

II. Defendant's Objections

Defendant also objected to the Magistrate Judge's Report and Recommendation. Specifically, Defendant objected to the Magistrate Judge's recommendation that summary judgment be denied as to Plaintiff's age discrimination claim and the Magistrate Judge's recommendation that Plaintiff not be sanctioned for discovery misconduct. [Doc. 95].

a. Age Discrimination

To establish a prima facie case of age discrimination, the plaintiff must establish four elements: (1) that he is a member of a protected class (here, forty years of age and older); (2) that he was qualified for the position he held; (3) that he was discharged from that position; and (4) that in terminating his employment, the employer treated him less favorably than a similarly situated individual outside of his protected class. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 (11th Cir. 2011).

It is undisputed that Plaintiff, who is over forty years of age, is a member of a protected class, and his termination was an adverse employment action. It also appears undisputed that he was qualified for the position that he held. At issue here is whether Plaintiff can satisfy the fourth prong—that he was treated less favorably than a similarly situated individual outside of his class—in court-speak, a “comparator.” Plaintiff only identifies James Runyan, who is thirty years old, as a proper comparator.

The Magistrate Judge determined that Plaintiff met his burden to show that a similarly situated individual outside of his class was treated more favorably because Plaintiff and Runyan engaged in similar misconduct yet were punished differently. After the Magistrate Judge made her recommendation, however, the Eleventh Circuit Court of Appeals decided Lewis v. City of Union City, 918 F.3d 1213 (11th Cir. 2019).[1] There, the Eleventh Circuit clarified that, at the prima facie stage, the plaintiff must show that he and his comparators are “similarly situated in all material respects.” Id. at 1226 (emphasis supplied). Courts must apply this standard on a “case-by case basis, in the context of individual circumstances” considering, among other things, whether the comparator and plaintiff “engaged in the same basic conduct,” “have been subject to the same employment policy,” “ordinarily have been under the jurisdiction of the same supervisor” and share similar employment or disciplinary history. Id. at 1227-28.

*6 Defendant contends that Runyan and Plaintiff are not similarly situated, and this Court agrees. Although this Court finds that Plaintiff and Runyan were subject to the same employment policy, this Court finds that they were not similar in all material respects because they did not engage in the same basic misconduct, they were not under the jurisdiction of the same supervisor and they did not share similar employment or disciplinary history.

i. Misconduct Alleged

Plaintiff contends that Runyan is a proper comparator because both lied during a human resources investigation. In this case, Defendant's human resources department was investigating a complaint made by Runyan wherein Runyan alleged that Plaintiff was abusive towards him by bullying him and harassing him. [Doc. 90-2, p. 5]. In addition to physical bullying, Runyan alleged that Plaintiff invented a fictitious male lover of Runyan's named “Rodrigo” and used the name often to imply that Runyan was homosexual. [Doc. 73-2, p. 11].

Plaintiff's use of the term “Rodrigo” was important to the investigation of Runyan's allegations against Plaintiff, and therefore both Plaintiff and Runyan were asked questions about the term. Before Plaintiff was interviewed by human resources, other employees confirmed to human resources that Plaintiff often used the term “Rodrigo” with Runyan, and Plaintiff's use of the term stood out. Id. Despite “Rodrigo” seemingly being common knowledge to those who worked with Plaintiff, when Plaintiff was asked what “Rodrigo” meant or whether he ever used the term, he denied knowing anything about the term or downplayed significantly ever using the term. [Doc. 90-1, p. 16]. When asked a second time and given a chance to change his answer, instead of Plaintiff admitting that he had previously used the term “Rodrigo” with Runyan, Plaintiff told human resources that he used the term “Roger” instead of saying cuss words. When confronted with his coworkers' statements that Plaintiff used the term “Rodrigo,” Plaintiff told human resources that he thought it was Runyan who had used the term in a text message. Id. at 17. Human resources determined that it was simply not plausible that Plaintiff did not know who “Rodrigo” was based on the evidence they knew at the time. [Doc. 87, p. 48].

Plaintiff asserts that Runyan engaged in similar misconduct. After human resources received Plaintiff's accusation that it was Runyan who used the term “Rodrigo,” Runyan was asked whether he had ever mentioned “Rodrigo” in a text message. Runyan responded that he did not recall mentioning “Rodrigo” in text messages but would check his phone. [Doc. 90-2, p. 9]. Only two days later, Runyan supplied human resources with all of his text messages, some of which showed that he had used the term “Rodrigo.” Id. Runyan explained to human resources why he had used the term and that he was embarrassed that he used it. Even though Runyan was not initially forthcoming about his own use of the term “Rodrigo,” he corrected the misrepresentation, unlike Plaintiff who continually denied all knowledge of “Rodrigo.”

This Court recognizes that Plaintiff believes Runyan lied extensively during the investigation (about both Plaintiff's alleged harassment of Runyan and about the peeping incident at the hospital), but it is not enough that Plaintiff accuse Runyan of lying during the investigation. For Plaintiff and Runyan to be valid comparators, Defendant must have also believed that Runyan lied extensively during the investigation and in the same manner as Plaintiff. Ultimately, this Court finds that a material difference exists between Defendant's belief that Runyan was not initially forthcoming in the interview and Defendant's belief that Plaintiff lied extensively during the interview, and therefore, the misconduct of Plaintiff and Runyan are not substantially similar.

ii. Supervisor

*7 Plaintiff and Runyan were not supervised by the same individuals, which is significant because “if a different decision-maker made the decision regarding the discipline of [Runyan] than the decision-maker who decided [Plaintiff's] fate, it would arguably be inapt to compare the lenient treatment by one manager with the harsher treatment by another manager for purposes of showing disparate treatment.” Nida v. Echols, 31 F. Supp. 2d 1358, 1369 (N.D. Ga. 1998). Before Plaintiff's termination, Plaintiff's supervisor was James Smith. James Smith reported to Scott Smythe, who ultimately reported to Paul Glynn, Vice President of Sales. Importantly, although relying on information received from human resources, it was ultimately Glynn's decision to terminate Plaintiff. [Doc. 73-2, p. 17]. Plaintiff has offered no evidence that Glynn had any authority whatsoever to discipline Runyan or to dictate what his discipline would be because Glynn only had authority over individuals within sales. There is also no evidence that human resources concealed evidence relating to Plaintiff when the recommendation was given to Glynn. Nida, 31 F. Supp. 2d at 1370.

Plaintiff argues that it is irrelevant that he and Runyan were in different chains of command because the same human resources department investigated both of them. This Court, however, cannot ignore that it was Glynn's decision to accept the recommendation of the human resources department, and Glynn had no authority whatsoever over Runyan's discipline.

iii. Employment and Disciplinary History

This Court also finds that Plaintiff and Runyan do not share a similar employment history because they do not perform the same job. This Court recognizes that it is not necessary for Plaintiff to prove purely formal similarities, and therefore the fact that Plaintiff had a different job title from Runyan is not determinative. Nonetheless, not only are the job titles of Plaintiff and Runyan not the same, but the responsibilities of Plaintiff and Runyan are quite different. Because it appears that Plaintiff had more authority than Runyan, the differences in job function are material and relevant.

Plaintiff was employed as a sales representative and in that role, he traveled to numerous customers throughout the month to sell Defendant's products. Runyan, on the other hand, was employed as a ProCare Specialist where he was assigned only to WellStar Kennestone Hospital to train hospital staff to use, maintain and repair the medical devices. [Doc. 90-2, p. 2]. Unlike Plaintiff, Runyan's role as a ProCare Specialist was integral to the procedures being performed at the hospital. Id. Not only did Runyan support the hospital staff, he also supported Plaintiff and would perform tasks as requested by Plaintiff. [Doc. 73-2, p. 3]. Runyan even viewed Plaintiff as his supervisor. Id.

Importantly, Plaintiff's disciplinary history differs from Runyan's, at least slightly. Even assuming that both violated the exact same rule of the code of conduct by being dishonest in the investigation performed by human resources, in 2012, Plaintiff was reported to human resources for engaging in inappropriate behavior that included bullying and harassment in the work environment. Id. at 5. No evidence exists that Runyan was ever similarly reported.

In conclusion, after comparing Plaintiff and Runyan's misconduct, chain of command and employment and disciplinary history, although there are a few respects in which Plaintiff and Runyan are similarly situated (e.g., they were subject to the same employment policy and both were investigated by the same individuals within the human resources department), Plaintiff's evidence falls short of demonstrating that they were similarly situated in the most material respects, let alone all. “If an employer applies a rule differently to people it believes are differently situated, no discriminatory intent has been shown.” Lewis, 918 F.3d at 1223 (emphasis in original). This Court finds that Plaintiff failed to prove his prima facia case, and therefore summary judgment is appropriate. The recommendation of the Magistrate Judge will not be adopted, and Defendant's objection is sustained.

b. After-Acquired Evidence

*8 In its Motion for Summary Judgment, Defendant alternatively argued that even if Plaintiff had a valid retaliation or age discrimination claim, the after-acquired evidence rule bars Plaintiff's recovery of back pay damages because two independent instances of severe misconduct would have resulted in his termination. Specifically, Defendant argues that upon its discovery of Plaintiff's evasive omission of the text message where he used the name “Rodrigo” and Plaintiff's illegal recording of the phone call where he was terminated, it would have fired Plaintiff for misconduct.

To prevail on the after-acquired evidence defense, the defendant must show that the misconduct revealed during discovery was so grave that the employee's immediate discharge would have followed its disclosure in any event. Wallace v. Dunn Constr. Co., 62 F.3d 374, 379 (11th Cir. 1995). Even if Defendant has met its burden to show that the defense is applicable, the “after-acquired evidence defense relates only to the issue of damages,” and because Plaintiff did not prevail on any of his claims, the Court need not address the issue. Kovelesky v. First Data Corp., 534 Fed. App'x 811, 815 (11th Cir. 2013). As such, Defendant's objection is OVERRULED AS MOOT.

c. Sanctions

Defendant objects to the Magistrate Judge's recommendation to this Court that it deny Defendant's Motion for Discovery Sanctions. For the reasons that follow, this Court sustains, in part, Defendant's objection because sanctions are appropriate in this case.

In discovery, Defendant sought evidence concerning Plaintiff's use of the term “Rodrigo” and evidence relating to Plaintiff's truthfulness in the human resources investigation. Particularly of interest to Defendant were Plaintiff's text messages that contained the term.

Plaintiff was deposed on November 17, 2017. At that deposition, Plaintiff testified extensively regarding his cellular phone usage. Plaintiff was also questioned about the integrity of the information on the phone (i.e., whether any data would be missing). Importantly, Plaintiff testified that the relevant cellular phone had been sitting in his cabinet untouched throughout the entirety of the litigation and that if any data was missing, only “divine intervention” could explain it. Plaintiff also testified that he had never backed up his cellular phone.

Plaintiff produced his cellular phone to a forensic expert for analysis on April 6, 2018. The expert's findings, put bluntly, are deeply troubling to this Court. Contrary to Plaintiff's deposition testimony, Plaintiff's cellular phone was not sitting in a cabinet untouched throughout the litigation. Instead, on May 3, 2017, Plaintiff ran a search for how to “permanently delete photos.” On August 30, 2017, during the same timeframe when the parties were conferring about the production of Plaintiff's cellular phone, Plaintiff ran searches for “shredroid,”[2] “clean deleted files” and “secure eraser.” On the same day, Plaintiff installed “Shreddit Data Eraser” and “Secure Erase with iShredder 5” on his cellular phone. The purpose of these applications is to wipe data from a mobile device, rendering that data unrecoverable—even by forensic experts. While Shreddit was removed from Plaintiff's cellular phone before his deposition, Plaintiff removed the iShredder application only one hour before the phone was given to Plaintiff's counsel to be sent for forensic review. The SMS Backup and Restore application were also deleted shortly before the phone was analyzed.

*9 Defendant filed its Motion for Discovery Sanctions Including Dismissal of Complaint with Prejudice on May 31, 2018. [Doc. 63]. Defendant argued that sanctions were appropriate under either Rule 37(e) of the Federal Rules of Civil Procedure or the Court's inherent power and discretion to manage civil actions.

i. Federal Rule of Civil Procedure 37(e)

Federal Rule of Civil Procedure 37(e), which governs the spoliation of electronically stored information (“ESI”), provides this Court with the authority to sanction a party under certain circumstances “[i]f [ESI] that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” Before a court may impose sanctions under this particular rule, it must determine that: (1) the information sought constitutes ESI; (2) the ESI should have been preserved in anticipation of litigation; (3) the ESI is lost because a party failed to take reasonable steps to preserve it; and (4) the ESI cannot be restored or replaced through additional discovery. Living Color Enters., Inc. v. New Era Aquaculture, Ltd., No. 14-cv-62216, 2016 WL 1105297, at *4 (S.D. Fla. Mar. 22, 2016).

Ultimately, this Court finds that sanctions are not permissible under the plain language of Federal Rule of Civil Procedure 37(e). Because Plaintiff eventually produced the backup file for his cellular phone (in response to the motion for sanctions), this Court cannot find that the information was lost or cannot be restored or replaced through additional discovery. As such, to the extent that Defendant objects to the finding by the Magistrate Judge that sanctions are not allowed under Federal Rule of Civil Procedure 37(e), the objection is overruled.

ii. Inherent Authority

The Magistrate Judge did not analyze whether Plaintiff's false testimony in his deposition or late disclosure of the backup file warrants sanctions pursuant to the Court's inherent powers.

“Courts have the inherent power to police those appearing before them.” Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017). Under this inherent authority, which should be exercised with restraint and discretion, parties who have acted in bad faith, vexatiously, wantonly or for oppressive reasons may be sanctioned. Chambers v. NASCO, 501 U.S. 32, 45-46 (1991). “The key to unlocking a court's inherent power is a finding of bad faith.” Peer v. Lewis, 606 F.3d 1306, 1316 (11th Cir. 2010). “The purpose of the inherent power is to both vindicate judicial authority without resorting to contempt of court sanctions and to make the non-violating party whole.” Purchasing Power, 851 F.3d at 1225. Sanctions may include the dismissal of a lawsuit or an assessment of attorney's fees. Chambers, 501 U.S. at 45.

This Court finds that Plaintiff acted in bad faith and sanctions are appropriate. Without a doubt, Plaintiff testified falsely at his deposition. He represented to Defendant that his cellular telephone, which contained key evidence, had been untouched throughout the entirety of the litigation. In fact, the phone had been “touched” multiple times. Searches were run on the phone regarding how to permanently delete data and data wiping applications were installed. Although this Court is without conclusive proof that the data wiping applications were actually used or what data, if any, was deleted, the fact remains that Plaintiff used his cellular phone during the pendency of the litigation and his testimony regarding his use was clearly false and misleading. Plaintiff further misrepresented knowledge of why data could be missing from the phone and testified that the only conceivable reason data would be missing was the result of “divine intervention.” Finally, Plaintiff misrepresented creating a backup file of the cellular phone.

*10 Plaintiff's response to the Motion for Sanctions does not ease this Court's concern. Instead of explaining why he installed and uninstalled data wiping applications on his cellular phone which he claimed was sitting untouched in a cabinet, Plaintiff merely argues that he should not be sanctioned because he eventually provided a backup file. Plaintiff also does not provide any explanation for his deposition testimony that no reason other than “divine intervention” could explain data missing from his phone. Instead, Plaintiff again asserts that sanctions are not appropriate because after discovery was over, he provided Defendant with his backup file.

While this Court will not impose the sanction of dismissal, there must be some consequence for Plaintiff's actions. Defendant shall be awarded its costs and fees in litigating the Motion for Sanctions. To that end, within fourteen days, Defendant shall submit a statement of its reasonable fees and costs incurred in litigating the Motion for Sanctions. Plaintiff shall have seven days to respond to the reasonableness of Defendant's fee request. The Clerk is DIRECTED to submit this case at the expiration of the time period.

III. Conclusion

The Report and Recommendation is ADOPTED IN PART AND REJECTED IN PART. Defendant's Motion for Summary Judgment is GRANTED. Specifically, for the reasons stated in the Report and Recommendation, Defendant's Motion for Summary Judgment as to Plaintiff's retaliation claim is GRANTED. This Court DECLINES TO ADOPT the Report and Recommendation as to the age discrimination claim, and for the reasons stated in the order above, GRANTS Plaintiff's Motion for Summary Judgment as to the age discrimination claim. Defendant's Motion for Summary Judgment as to the defamation claim is also GRANTED, and with the exception of the analysis on the intracorporate privilege, the reasons stated in the Report and Recommendation are fully incorporated herein.

This Court DECLINES TO ADOPT the Report and Recommendation as to Defendant's Motion for Sanctions and for the reasons stated above, the motion is GRANTED. Within fourteen days of the date of this Order, Defendant shall submit to this Court a statement of its reasonable fees and costs incurred in litigating the Motion for Sanctions. Plaintiff shall have seven days to respond to the reasonableness of Defendant's fee request. The Clerk is DIRECTED to submit this case at the expiration of the time period.

SO ORDERED this 12th day of November, 2019.