           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 11, 2009

                                     No. 09-10160                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



ROSE M. FORD

                                                   Plaintiff – Appellant
v.

JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL
SERVICE

                                                   Defendant – Appellee




                   Appeal from the United States District Court
                       For the Northern District of Texas
                             USDC No. 3:07-CV-1039


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*

       Plaintiff-Appellant Rose M. Ford (“Ford”) appeals the district court’s entry
of judgment against her after a bench trial on her claim for Title VII age
discrimination, and the district court’s denial of her motion for an adverse
inference based on spoliation of evidence. We affirm.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                     No. 09-10160

                          FACTS AND PROCEEDINGS
      In May 2002, the United States Postal Service (“USPS”) hired Ford, then
aged 39, for a one-year Not-To-Exceed (“NTE”) attorney position at its Southwest
Law Office in Dallas (“the office”).1 Doris Godinez-Phillips (“Godinez-Phillips”),
Managing Counsel for the office, made the decision to hire her, subject to
approval from USPS headquarters. Ford resigned shortly after being hired but
was asked not to leave by Godinez-Phillips, and her NTE contract was renewed
when it expired.
      In May 2003, then aged 40, Ford applied for a career position with the
office. A fellow NTE attorney who was a decade younger was selected for the
position. After her interview, Ford was given feedback by Godinez-Phillips and
another member of the committee that reviewed the applicants. Ford does not
challenge this employment decision.
      In July of that year, Ford again applied for a career attorney position at
the Dallas Law Office and was selected for an interview. Chizoma Ihekere
(“Ihekere”), who had turned 30 earlier in 2003 and who had joined the Dallas
Law Office as an NTE attorney in May 2003, also applied for the position.
Ihekere was not initially selected for an interview but was added after Godinez-
Phillips instructed the reviewing committee to forward the names of additional
applicants for interviews. Ihekere was selected for the position along with
Jeffrey Weeks (“Weeks”) and Paul Wolf (“Wolf”), both over age 40. Ford’s
interview did not go well, and Godinez-Phillips later told her that Ihekere was
“young and energetic” but denied that Ihekere was selected, or Ford rejected,
because of their age. Ford resigned on September 25, 2003. She alleges that her
age was a motivating factor in the decision not to hire her as a career attorney.



      1
       A “Not-To-Exceed” position is a term position that comes with little or none of the
employment benefits given to permanent federal employees.

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      A hearing was held before an EEOC officer in 2005. Ford was awarded no
relief and she appealed the agency decision to the Office of Federal Operations
in 2006. The agency decision was upheld and Ford filed suit in the Northern
District of Texas. The district court denied USPS’s motion for summary
judgment and a two-day bench trial was held in December 2008. At the
conclusion of the evidence, Ford moved for an inference of spoliation of evidence,
based on the failure of the government to produce notes that a reviewing
committee member made during Ihekere’s interview. After trial, the district
court issued a memorandum opinion finding in favor of USPS and dismissing
Ford’s suit with prejudice. The district court also denied the motion for an
adverse inference. Ford now appeals, arguing that the district court (1) erred in
finding that Ford had not presented direct evidence of discrimination, (2) erred
in finding that USPS had presented a legitimate non-discriminatory reason for
not selecting Ford, and (3) abused its discretion in denying the motion for an
adverse inference.
                          STANDARD OF REVIEW
      “The standard of review for a bench trial is well established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.” Bd. of
Trs. New Orleans Employers Intern. Longshoremen’s Ass’n v. Gabriel, Roeder,
Smith & Co., 529 F.3d 506, 509 (5th Cir. 2008) (quoting Water Craft Mgmt. LLC
v. Mercury Marine, 457 F.3d 484, 488 (5th Cir. 2006)). “A finding is clearly
erroneous if it is without substantial evidence to support it, the court
misinterpreted the effect of the evidence, or this court is convinced that the
findings are against the preponderance of credible testimony.” Id. Reversal is
warranted only if the reviewing court is left with “a definite and firm conviction
that a mistake has been committed.” Id. (quotation omitted). Under the Federal
Rules, a “reviewing court must give due regard to the trial court’s opportunity
to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). Accordingly, “[t]he

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burden of showing that the findings of the district court are clearly erroneous is
heavier if the credibility of witnesses is a factor in the trial court’s decision.”
Dunbar Med. Sys. Inc. v. Gammex Inc., 216 F.3d 441, 453 (5th Cir. 2000)
(quotation omitted).
                                       DISCUSSION
       Before proceeding, we must determine what evidence we will consider in
our analysis of the district court’s memorandum opinion. Generally, we will not
enlarge the record on appeal with evidence not before the district court. Trinity
Indus., Inc. v. Martin, 963 F.2d 795, 799 (5th Cir. 1992) (citing Kemlon Prods.
and Dev. Co. v. United States, 646 F.2d 223, 224 (5th Cir. 1981), cert. denied, 454
U.S. 863 (1981)). When reviewing the findings of a district court we will
disregard evidence that it did not consider at trial. See Kirshner v. Uniden Corp.
of America, 842 F.2d 1074, 1077 (9th Cir. 1988) (declining to consider materials
not considered by the district court); United States v. Drefke, 707 F.2d 978, 983
(8th Cir. 1983) (same); Stearns v. Hertz Corp., 326 F.2d 405, 408 (8th Cir. 1964)
(declining to consider affidavit presented for first time on appeal); Watson v.
Rhode Island Ins. Co., 196 F.2d 254, 255-56 (5th Cir. 1952) (striking affidavit
presented for first time on appeal). Some of the materials referenced in
appellant’s brief are part of the record on appeal as they were attached in
support of various pre-trial motions. But they were not admitted into evidence
at trial, and were not considered by the district court in issuing its memorandum
opinion. Accordingly, we will limit our analysis to the evidence that was before
the district court.2


       2
          Only eight exhibits were admitted into evidence at trial. See Bench Tr. Tran., at 5.
Ford introduced her resume, her W-2s, and documents relating to her post-resignation job
search. The government introduced Ford’s resignation letter, an email Ford sent to Godinez-
Phillips and others, Ford’s appointment letter to her NTE position, Wolf’s resume, and a letter
from Weeks to the Administrative Coordinator for the office. Among the documents that Ford
relies on in her brief that were not before the district court at trial are the transcript of her
EEOC hearing; various exhibits presented at the EEOC hearing, including a “Review

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       We hold that the district court’s finding that Ford had not suffered age
discrimination was not clearly erroneous. In so holding, we note that the thrust
of Ford’s argument seems to be that she presented sufficient evidence for the
district court to find that discrimination occurred. See, e.g., Bl. Br. at 17 (“a
plaintiff’s prima facie case . . . may allow” a finding of discrimination); id. at 35
(noting “sufficient evidence to demonstrate that age” was factor in employment
decision); id. at 40 (“a fact finder could infer” that the non-discriminatory reason
advanced for not promoting Ford was pretextual). But this assertion is
inapposite to our standard of review. Ford must show that the district court’s
findings and credibility determinations were clearly erroneous. She has not.
       Ford argues that Godinez-Phillips’s statements to her regarding
youthfulness and vibrancy are direct evidence of age discrimination. The district
court found that Ford had not produced direct evidence of discrimination. Ford
v. Potter, No. 3:07-CV-1039, 2008 WL 5272782, at *5 (N.D. Tex. Dec. 18, 2008).
This conclusion was based in part on determinations of witness credibility. See
id. at n.7 & 8.3 These credibility determinations were not clearly erroneous and
the district court, after making them, properly found that the statements did not
constitute direct evidence of discrimination and analyzed Ford’s claim under the
McDonnell-Douglas framework.
       The district court’s conclusion that the government had a non-
discriminatory reason for not promoting Ford is also not clearly erroneous. After
hearing testimony from both Ford and Godinez-Phillips, the district court
concluded that Godinez-Phillips hired Ihekere because the latter possessed a
number of qualities that Godinez-Phillips was seeking in new hires, including


Committee Checklist” that is included in the record excerpts; and the transcript of Godinez-
Phillips’s deposition.
       3
         The district court found credible Godinez-Phillips’s denial that she told Ford that
Ihekere was promoted despite her lack of merit because Ihekere was “youthful” and “vibrant.”

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trial experience and the potential to act as “corporate counsel,” training the
client so as to prevent lawsuits. Godinez-Phillips also appreciated Ihekere’s
exuberance and was disturbed that Ford gave essentially the same responses in
her second interview despite being counseled that her earlier answers had been
inadequate. After hearing testimony and reviewing the exhibits, the district
court also concluded that Ihekere’s name was added to the list of interviewees
after initially being rejected not for any discriminatory reason, but because
USPS was seeking to hire several attorneys and Godinez-Phillips urged the
review committee to be less selective. These credibility determinations are not
clearly erroneous.
      Finally, the district court did not abuse its discretion in denying Ford’s
motion for an adverse inference based on spoliation of evidence. Such an
inference is predicated on the “bad conduct” of the defendant. United States v.
Wise, 221 F.3d 140, 156 (5th Cir. 2000). A plaintiff must show that a defendant
acted “in bad faith” to establish that it is entitled to such an inference. King v.
Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003) (quotation omitted). The district
court found that after he was deposed, the interviewee who took the notes
showed government attorneys where the notes were stored. Years later—and on
the eve of trial—Ford requested that the notes be produced and they could not
be found. The district court concluded that “there is no affirmative evidence that
the notes have actually been destroyed or, if discarded or destroyed, of the
circumstances under which this occurred.” Ford, 2008 WL 5272782, at *4 n.3. On
appeal, Ford identifies no evidence from which a factfinder could conclude that
the notes were destroyed or discarded in bad faith, but merely argues that the
failure to produce these notes “smell[s] bad [and] is bad conduct and bad faith.”
Bl. Br. at 49. Ford never objected to the discovery produced by the government
prior to the eve of trial, nor did she file a motion to compel production of these



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notes. Under these circumstances, the district court did not abuse its discretion
in denying her motion for an adverse inference based on spoliation of evidence.
                                CONCLUSION
   Considering the foregoing, the judgment of the district court is AFFIRMED.




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