No Sanctions for Resetting Two Cellphones on Facts Presented; and, Social Media Posts Supported Dismissal

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Wenzler v. U.S. Coast Guard, 2025 WL 1445805 (Mar. 20, 2025), Wenzler alleged that he had been disenrolled from the voluntary U.S. Coast Guard Auxiliary based on his speech on social media.  Wenzler unsuccessfully asserted protected speech, retaliation, and spoliation, among other things, after two government cell phones were reset.  Wenzler’s sanctions motion was denied under Fed.R.Civ.P. 37(e).

Two LinkedIn posts were at issue. The LinkedIn profile “showed him in [a U.S. Coast Guard] Auxiliary uniform and read ‘Branch Chief for Human Resources’ for the Auxiliary.”   The court wrote:

The first [post] was in response to a post congratulating Justice Ketanji Brown Jackson…. Wenzler’s responsive post read: “Another racist makes the court to join racist Sotom[a]yor and Kag[a]n. Great job America!” The second post was in response to a post commending a girl scout for writing a letter to the editor to complain about an announcement regarding boy and girl scouts that the writer deemed sexist…. Wenzler’s responsive post read: “Well if you are proving you are just having fun, then you are. To find something sexist is to show you are the sexist. Perhaps the Girl Scouts should actually accomplish something, but alas they just sell cookies.”

Wenzler v. U.S. Coast Guard, 2025 WL 1445805 (Mar. 20, 2025).

Four motions were pending in Wenzler.  This blog focuses primarily on the motion for sanctions for alleged spoliation of text messages.  The court wrote that it “will deny the motion for sanctions because defendants did not lose any text messages related to Wenzler’s disenrollment when two government employees’ phones were reset upon their retirement.”¹

The Coast Guard Auxiliary is organized under federal statute and members may be disenrolled “for cause.”  Wenzler held a leadership and management position.

The Auxiliary “received a complaint from a member of the public about LinkedIn posts that she perceived as sexist, racist, and inappropriate….”  While the poster was not fully identified, it was later determined by the Coast Guard Auxiliary that Wenzler made the posts.  An investigation followed and after a long chain of events, Wenzler was disenrolled.  He appealed.

The court wrote that Wenzler moved for sanctions under Fed.R.Civ.P. 37(e) “based on the alleged deletion of text messages from Gibson’s and Dooris’s work cellphones.”

So, who were Gibson and Dooris, and what happened?

Commander James Gibson was the director of Wenzel’s district. Among other things, he notified Wenzler of a temporary suspension and sent a notice of intent to impose disciplinary action for four alleged infractions.  He later notified Wenzler that he was disenrolled and notified him of his right to appeal.

Wenzler’s initial appeal of a temporary suspension was to Captain Matthew Dooris. Dooris notified Wenzler that the appeal was denied.  Additionally, the final appeal from Commander Gibson went to Captain Dooris.  Dooris notified Wenzler that his final appeal was denied for the same reasons that had been provided earlier and “Dooris also wrote that the prescribed disciplinary procedures had been followed, and that the decision was final.”  Wenzler made a number of allegations against the Captain, such as alleging that he mishandled Wenzler’s appeal.²

However, when Gibson and Dooris retired, their cell phones were reset and any texts were erased, leading to the sanctions motion.

The Wentzel court wrote:

I begin with the motion for sanctions. The basic rule is that Rule 37(e) authorizes an appropriate sanction for the loss of relevant electronically stored information, if the party failed to take reasonable steps to preserve it. See Fed. R. Civ. P. 37(e); Freidig v. Target Corp., 329 F.R.D. 199, 207 (W.D. Wis. 2018). Defendants acknowledge that, pursuant to Coast Guard policy, Gibson’s and Dooris’s work cellphones were reset to factory settings upon their retirement, which precludes retrieval of text messages from those devices…. But Gibson and Dooris say that, shortly after Wenzler brought this action, they searched their work cellphones in response to litigation holds for text messages related to Wenzler’s disenrollment, and that those searches revealed no related substantive text messages…. Gibson and Dooris also say that they relied on email and phone calls to have substantive communications related to the disenrollment…. The chief litigation coordinator, Brian Judge, says that he would not have expected Gibson or Dooris to have any substantive communication about the disenrollment by text message and that, had that occurred, he would have expected them to preserve the text messages pursuant to official policy…. There is no evidence that defendants lost any relevant text messages by restoring Gibson’s and Dooris’s phones to factory settings. I will deny the motion for sanctions. [Emphasis added].

Id.

As a result, Wentzel’s sanctions motion was denied.³ Wenzel’s remaining motion to compel failed for both procedural and substantive reasons.

As to the cross-summary judgment motions on the Administrative Procedure Act claim, the court wrote:

In his social media posts, Wenzler misrepresented his position as “Branch Chief-Human Resources Directorate.” And he made disrespectful comments in which he: called Supreme Court Justices racists; called a girl scout sexist and mocked her for selling cookies; demeaned a social media user based on her occupation; and celebrated the cancer diagnosis and subsequent resignation of a university’s president-elect.

Id.

Summary judgment was granted for the Coast Guard on that issue:  “Gibson’s decision to disenroll Wenzler from the Auxiliary was not arbitrary and capricious and was supported by substantial evidence.” 

Wenzler asserted that his social posts were protected by the First Amendment and that the disenrollment was retaliatory.  The court ruled: “The evidence shows that the Auxiliary’s interests in promoting effective and efficient public services outweighed any interest Wenzler had in making the LinkedIn posts….”

The court concluded that:

No reasonable juror could conclude that Wenzler’s LinkedIn posts were constitutionally protected. I will grant summary judgment to defendants on Wenzler’s retaliation claim. Because I have granted summary judgment to defendants on Wenzler’s APA and retaliation claims, the entire case will be dismissed.”

LinkedIn’s policy on “hateful and derogatory conduct” is posted at Hateful and derogatory content | LinkedIn Help.

Notes

1. The court denied a motion to compel because Wenzel did not confer with defendants in good faith.  It also held that certain documents were privileged. ↩︎
2. The court later rejected these allegations on the merits and, alternatively, deemed them harmless. ↩︎
3. Cf. Trust Me:  Nothing in the Missing Video Would Have Helped You! (Sept. 10, 2024); Should Carl Little, Jr., Have Won His Appeal Challenging Denial of a Spoliation Instruction? (Dec. 26, 2022);  Defendant Unsuccessfully Argued that Plaintiff Could Not Show That Data on Cell Phone That Defendant Destroyed Was Relevant (Aug 18, 2021); Fed.R.Civ.P. 37(e)(2)(if there is the requisite intent to deprive, a presumption may arise). ↩︎

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.