Andrew Duong v. Benihana National Corporation, 21-1088

Background:

Duong, a Benihana chef, repeatedly complained (from Jan–Apr 2018) about sanitation and sexual harassment by a new server, Michael Stewart, who harassed Duong’s girlfriend, Marcia Escobar.
On May 2, 2018, Stewart allegedly harassed Escobar; a confrontation between Stewart and Duong escalated into a physical altercation captured on restaurant surveillance.
General manager Susan Crowley and supervisor Loukas Kotsadam watched the footage, concluded Duong was aggressive/initial aggressor, and Crowley terminated both employees (Duong for workplace violence; Stewart for workplace violence and sexual harassment).
Crowley and regional manager Chun Chang recommended preserving the video (police advised preservation; Stewart threatened charges), but senior HR director Sandra Cintado—without viewing the footage—declined preservation and the tape was overwritten per routine 90-day policy.
Duong sued in state court alleging retaliatory discharge under CEPA, LAD, and Pierce; Benihana removed to federal court. The District Court denied Duong’s spoliation sanction request and granted Benihana summary judgment; Duong appealed.
The Third Circuit affirmed: no sanction for spoliation (no demonstrated bad faith or additional prejudice) and no genuine dispute that the termination was for workplace violence, not retaliation.

Issues:

Issue	Duong’s Argument	Benihana’s Argument	Held
Whether an adverse-inference sanction for destroyed surveillance video was warranted	Cintado’s deletion was intentional to hide exculpatory evidence; spoliation supports inference of pretext	Deletion was routine, decision made by HR who had not seen the footage; no evidence of bad faith; Crowley sought preservation	No sanction: court found no bad faith and no additional prejudice from loss of video
Whether Benihana offered a legitimate, nonretaliatory reason for firing (workplace violence)	Duong acted in self-defense and company informally tolerates defensive conduct	Employee handbook prohibits fighting/violence; Duong admitted shoving and grabbing, violating policy	Held legitimate: Benihana met its light burden—termination grounded in workplace-violence policy
Whether Duong showed pretext via inconsistent enforcement or animus	Duong points to other fights not resulting in termination and managerial antagonism following complaints	Evidence of other incidents lacked detail; isolated comments do not show pattern of antagonism	No genuine dispute of pretext: evidence insufficient to let jury infer retaliation
Whether spoliation plus other facts sufficed to show causation/retaliation	Loss of video indicates concealment of true motive and supports retaliatory explanation	Key decisionmaker (Crowley) wanted to preserve; HR who deleted never viewed footage and lacked motive to conceal	Court rejected: spoliation on these facts does not demonstrate hidden pretext or alter causal conclusion

Key Cases Cited

Pierce v. Ortho Pharm. Corp., 417 A.2d 505 (N.J. 1980) (common-law wrongful discharge standard underlying CEPA claims)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden-shifting framework for discrimination/retaliation claims)
Bull v. United Parcel Serv., Inc., 665 F.3d 68 (3d Cir. 2012) (spoliation requires showing of bad faith)
Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326 (3d Cir. 1995) (adverse inference arises only where destruction was intentional and indicative of fraud)
Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) (summary-judgment pretext standard—employer’s reason must appear unworthy of credence)
Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76 (3d Cir. 1994) (degree of prejudice is a factor before imposing spoliation sanctions)
Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245 (3d Cir. 2014) (pattern of antagonism plus timing can support causal inference)
Blackburn v. United Parcel Serv., Inc., 179 F.3d 81 (3d Cir. 1999) (applying McDonnell Douglas framework to retaliation claims)