509 F.Supp.2d 527 (2007)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
LA WEIGHT LOSS, Defendant.
No. WDQ-02-0648.
United States District Court, D. Maryland, Northern Division.
August 31, 2007.
*528 *529 *530 Gerald S. Kiel, Gwendolyn Young Reams, Ronald L. Phillips, Tracy Hudson Spicer, Cecile Celeste Quinlan, Pamela Elizabeth Hostetler, Stephen P. O'Rourke, *531 Equal Employment Opportunity Commission, Baltimore, MD, Suzanne Lenahan Nyfeler, Equal Employment Opportunity Commission, Richmond, VA, Corbett L. Anderson, Equal Employment Opportunity Commission, Washington, DC, M. Jean Clickner, Equal Employment Opportunity Commission, Pittsburgh, PA, for Plaintiff.
Elizabeth Torphy Donzella, Shawe and Rosenthal LLP, Baltimore, MD, Thomas Henry McDonough, Aliza Rebecca Karetnick, David L. Gollin, David E. Landau, Jonathan David Wetchler, Larry H. Spector, Wolf Block Schorr and Solis-Cohen LLP, Philadelphia, PA, for Defendant.

MEMORANDUM OPINION
WILLIAM D. QUARLES, Jr., District Judge.
The Equal Employment Opportunity Commission (the "EEOC") has sued LA Weight Loss Centers, Inc. ("LAWL"), for violations of Title VII of the Civil Rights Act of 1964,[1] as amended ("Title VII"). Pending are LAWL's motions for summary judgment and partial summary judgment, the EEOC's motion for partial summary judgment, and the parties' motions for leave to file surreply memoranda. For the following reasons, LAWL's motions for summary and partial summary judgment will be denied, the EEOC's motion for partial summary judgment will be granted in part and denied in part, and the motions for leave to file surreplies will be denied.
I. Background
LAWL is a Pennsylvania corporation and "leading national weight loss company." Amended Compl. ¶ 4; Def.'s Mem. in Supp. of its Mot. for Summ. J. ("Def.'s Mem.") 2. Since its founding in 1997, LAWL has offered nutritional plans, diet aids, and counseling services to its clients, and today operates approximately 400 weight-loss centers in Maryland and several other states. Def.'s Mem. 2, 5-6.
On June 22, 1998, Kathy Koch, a former LAWL employee, filed an amended employment discrimination charge with the EEOC, alleging that she was fired in retaliation for complaining about LAWL's failure to hire qualified male applicants. Def.'s Mem. 25, Ex. XX (amended charge). The EEOC commenced an investigation, and issued a letter of determination on September 14, 2000, finding reasonable cause that LAWL: (1) retaliated against Koch, and (2) discriminated against men in selection and hiring in all positions throughout the company. Pl.'s Mem. in Supp. of its Mot. for Partial Summ. J. ("Pl.'s Mem.") 2-4, App. C, Ex. 1, EEOC 00032-33 (letter of determination).
On February 22, 2002, the EEOC filed its original Complaint against LAWL, claiming LAWL (1) engaged in a pattern or practice of disparate treatment of men in its recruiting, hiring, and assignment of employees, and (2) retaliated against Koch for opposing such practices. Paper No. I. On July 15, 2002, Koch intervened as a plaintiff with her retaliation claim, and filed an amended complaint on August 26, 2002. Papers No. 13, 21.
On March 24, 2004, the EEOC filed its Amended Complaint, adding a claim that LAWL failed to preserve employment records as required under 42 U.S.C. § 2000e-8(c) and the EEOC's pursuant regulation, 29 C.F.R. § 1602.14. Paper No. 66.
On November 21, 2005, Koch entered into a settlement agreement with LAWL and voluntarily dismissed her retaliation claim with prejudice. Paper No. 144.
On March 9, 2007, following 33 months of discovery and attempts at settlement, *532 LAWL filed its motion for summary judgment on all claims (Paper No. 177), and the EEOC filed its motion for partial summary judgment on its document-preservation claim (Paper No. 178). On May 4, 2007, LAWL filed its opposition to the EEOC's motion, and incorporated a motion for partial summary judgment on the EEOC's retaliation claim. Paper No. 183. Also pending is each party's motion for leave to file surreplies to complement the 248 pages of memoranda already before the Court. Papers No. 194, 195.
II. Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Only "facts that might affect the outcome of the suit under the governing law" are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
In considering a motion for summary judgment, "the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. 2505. The court must also view any inferences drawn from the underlying facts "in the light most favorable to the party `opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
A party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257, 106 S.Ct. 2505. The mere existence of a "scintilla" of evidence is insufficient. Id. at 252, 106 S.Ct. 2505. If the nonmoving party fails to show an essential element of his case on which he will bear the burden of proof at trial, all other facts are rendered immaterial, and the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. 317, 323, 106 S.Ct. 2548; Fed.R.Civ.P. 56(e).
III. Discussion
A. Pattern or Practice of Disparate Treatment
LAWL moves for summary judgment on the EEOC's claim that LAWL has engaged in a pattern or practice of disparate treatment of men in its recruiting, hiring, and assignment of employees. LAWL argues that: (1) the EEOC lacks evidence of a prima facie case of such a pattern or practice of disparate treatment; and (2) in the alternative, LAWL is entitled to summary judgment on the EEOC's claims for male applicants who were denied employment prior to the charge-filing deadline in 42 U.S.C. § 2000e-5(e).
B. Pattern-or-Practice Legal Framework
Section 707 of Title VII empowers the EEOC to sue "any person or group of persons . . . engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII]." 42 U.S.C. § 2000e-6.
The EEOC bears the initial burden of proving a prima facie case of a pattern or practice of unlawful disparate treatment. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); E.E.O.C. v. Am. Nat. Bank, 652 F.2d 1176, 1188 (4th Cir.1981), reh'g denied, 680 F.2d 965 (4th Cir.1982), cert. denied, 459 U.S. 923, 103 *533 S.Ct. 235, 74 L.Ed.2d 186 (1982). "This prima facie showing may in a proper case be made out by statistics alone, or by a cumulation of evidence, including statistics, patterns, practices, general policies, or specific instances of discrimination." Am. Nat. Bank, 652 F.2d at 1188 (citing, inter alia, Teamsters, 431 U.S. at 339, 97 S.Ct. 1843; Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977)). Although most pattern-or-practice discrimination cases are proved through the use of statistics, statistical evidence is not necessary to establish a prima facie case. See United States v. Gregory, 871 F.2d 1239, 1243 (1989) (defendant's admission of discriminatory practices proof of Title VII violation). However,
[p]roving isolated or sporadic discriminatory acts by the employer is insufficient to establish a prima facie case of a pattern or practice of discrimination; rather it must be established by a preponderance of the evidence that [unlawful] discrimination was the company's standard operating procedure-the regular rather than the unusual practice.
Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875-76, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984) (internal quotation marks omitted).
If a prima facie case is established by the EEOC, the burden shifts to the employer to rebut the inference of a pattern or practice of disparate treatment. Id.
C. Analysis of the Pattern-or-Practice Evidence
To prove a prima facie case of disparate treatment of men, the EEOC offers: (1) LAWL employee admissions of discriminatory practices; (2) testimony of rejected male applicants; (3) documentary evidence; and (4) statistical evidence.
The testimonial evidence alone demonstrates genuine issues of material fact regarding the EEOC's pattern-or-practice claim. Admissions by upper-level LAWL employees made within the scope of their employment indicate a practice of disparate treatment of male job applicants, and rejected male applicants were told by LAWL officials that they would not be hired because of their sex.
Joy Freathy was an LAWL Regional Manager from 1997 through December 1999 whose responsibilities included interviewing potential area and center managers. Pl.'s Opp'n Ex. 2 ¶ 1 (Freathy Decl.). Freathy attests that, during her employment, she was told by LAWL general manager Eileen Stankunas that Vahan Karian, LAWL's sole owner and chief executive officer, told Stankunas that men were not to be hired for any positions. Id. ¶ 2.
Former LAWL mid-level employees Koch, Anastasia Meyer, and Pat Burroughs attest that Scott Moyer, LAWL's chief operating officer from 1997 through mid 1998, and Kristi O'Brien, LAWL's director of training, instructed them during a November 1997 training event to refrain from hiring men. Pl.'s Opp'n Ex. 4 at 25-26 (Moyer Dep.), Ex. 8 at 58 (O'Brien Dep.), Ex. 5 at 64-66, (Koch Dep.), Ex. 6 at 78-81 (Meyer Dep.), Ex. 7 at 2 (Burroughs Decl.). O'Brien also told LAWL manager Sandra Brown-Talavera that she was not supposed to hire males, and that such was Stankunas's position on the matter. Pl.'s Opp'n Ex. 11 at 65-66 (Aug. 1, 2003 Brown-Talavera Dep.), Ex. 16 at 50 (Apr. 30, 2001 Brown-Talavera Dep.).
In addition to other admissions by specific LAWL employees indicating a practice of sex discrimination (Pl.'s Opp'n 8-16), the EEOC also offers testimony from rejected male applicants who recount being told by unidentified LAWL hiring officials *534 that LAWL would not hire them because of their sex. Pl.'s Opp'n Ex. 62 at 8-12, 24-26 (Steve Comins Dep.), Ex. 63 at 73-74, 99-102 (James Gruber Dep.), Ex. 65 at 9, 17 (Everett Coleman Dep.).
LAWL challenges the value of this testimonial evidence by contending that the statements are "isolated remark[s] in the distant past," from employees in only five states and the District of Columbia, and predate 2002. These arguments go to the probative value of the evidence, and are within the province of the fact-finder.
As for admissibility, the statements on LAWL's hiring policy by Karian, Stankunas, Moyer, and O'Brien are on a matter within the scope of their employment as CEO, general manager, COO, and director of training, are offered against LAWL, and thus are admissible under Federal Rule of Evidence 801(d)(2).[2] Similarly, the statements of the unidentified LAWL hiring officials in the applicants' testimony are also admissible as party admissions, as the applicants' depositions indicate that the declarants were involved in screening or interviewing applicants, making it reasonable to conclude that LAWL hiring practices were within the scope of the declarant's employment. U.S. v. Portsmouth Paving Corp., 694 F.2d 312, 321-22 (4th Cir.1982). Accordingly, summary judgment for LAWL on the EEOC's pattern-or-practice claim will be denied.
D. Statutory Limitation on Certain Claims
LAWL contends that the deadline for filing an individual charge of unlawful employment practice in 42 U.S.C. § 2000e-5(e) applies to the EEOC's pattern-or-practice claim brought under 42 U.S.C. § 2000e-6. Thus, LAWL argues, the EEOC's claims for male applicants who were denied employment more than 180 days before the EEOC issued its September 14, 2000 determination letter are time-barred.
Under 42 U.S.C. § 2000e-6, the EEOC may file a charge on its own initiative when it has reason to believe that an employer has engaged in a pattern or practice of discriminatory conduct. 42 U.S.C. § 2000e-6(a), (c); EEOC v. Shell Oil Co., 466 U.S. 54, 62, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984). Although § 2000e-6 does not contain its own statute of limitations, § 2000e-6(e) provides that the EEOC's actions under § 2000e-6 "shall be conducted in accordance with the procedures set forth in section 2000e-5 of this title." 42 U.S.C. § 2000e-6(e). 42 U.S.C.2000e-5(e) requires that:
a charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred
42 U.S.C. § 2000e-5(e) (emphasis added).
The Fourth Circuit has not ruled on whether the limitations period of § 2000e-5(e) *535 applies to pattern-or-practice cases brought under § 2000e-6. In dicta, the Ninth Circuit noted that:
some of the [§ 2000e-5] procedural requirements seem to apply only to individual unlawful employment practices and not to pattern or practice suits. . . . For example, [§ 2000e-5(e)] requires the filing of a charge within 180 days of the alleged unlawful employment practice. Section [2000e-6], however, contains no requirement that anyone file a charge. A prima facie pattern or practice suit may be based solely on statistical evidence. Further, it takes more than one unlawful practice to constitute a "pattern or practice" of employment discrimination. Thus, there could be no certain date from which the 180-day period would run.
U.S. v. Fresno Unified School Dist., 592 F.2d 1088, 1096 n. 5 (9th Cir.1979).
A few district courts have, applied the limitations period of § 2000e-5(e) to EEOC pattern-or-practice claims based on the "plain language" of § 2000e-6(e), E.g., E.E.O.C. v. Optical Cable Corp., 169 F.Supp.2d 539, 546 (W.D.Va.2001); EEOC v. Sears, Roebuck & Co., 490 F.Supp. 1245, 1260 (M.D.Ala.1980). However, others have not, finding that "the application of a limitations period in a § [2000e-6] action does not make intuitive or legal sense," as an EEOC charge alleging' a pattern or practice of discrimination "involves a continuing violation" that is "not amenable to a timeliness determination." E.E.O.C. v. Mitsubishi Motor Mfg. of America, Inc., 990 F.Supp. 1059, 1084 (C.D.Ill.1998); accord E.E.O.C. v. Scolari Warehouse Markets, Inc., 488 F.Supp.2d 1117, 1136 (D.Nev.2007). At least two commentators agree that there is no statute of limitations under Title VII for pattern-or-practice suits brought by the EEOC. Fed. Proc., L.Ed. § 50:633 (Westlaw, June 2006); 4-75 Lex K. Larson, Employment Discrimination § 75.02[2] (Lexis 2d ed.1997) (concurring with the Ninth Circuit's reasoning in Fresno).
The language of sections 2000e-5(e) and 2000e-6(e) is not so plain as to warrant the application of § 2000e-5(e)'s limitations period for individual charges to pattern-or-practice claims brought by the EEOC under § 2000e-6. As reasoned by the Ninth Circuit in Fresno and the Central District of Illinois in Mitsubishi, § 2000e-6 permits the EEOC to remedy systematic violations of Title VII that occur over periods stretching well beyond § 2000e-5(e)'s charge-filing deadline against multiple victims. Fresno, 592 F.2d at 1096 n. 5; Mitsubishi, 990 F.Supp. at 1084-86. Imposing the limitations period in § 2000e-5(e) on the EEOC's charge "would be inconsistent with the very nature of a pattern or practice violation." Mitsubishi, 990 F.Supp. at 1085.
Moreover, § 2000e-5(e) indicates that the statutory limitation applies specifically to charges "filed by or on behalf of the person aggrieved." 42 U.S.C. § 2000e-5(e). But unlike claims brought under § 2000e-5, EEOC actions under § 2000e-6 are not brought on behalf of individual victims, but on the EEOC's own initiative for the purpose of rectifying "a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII]." 42 U.S.C. § 2000e-6(a); Shell Oil, 466 U.S. at 62, 104 S.Ct. 1621.
Furthermore, "it is crucial that the [EEOC]'s ability to investigate charges of systemic discrimination not be impaired." Shell Oil, 466 U.S. at 69, 104 S.Ct. 1621. In amending § 2000e-6 to transfer pattern-or-practice suit authority to the EEOC, Congress observed that "[p]attern or practice discrimination is a pervasive and deeply imbedded form of discrimination," warranting "[u]nrelenting broad-scale *536 action" to achieve the objectives of Title VII. H.R.Rep. No. 92-238 at 14 (1972), reprinted in 1972 U.S.C.C.A.N. 2137, 2149. Accordingly, § 2000e-5(e) will not be applied to exclude the EEOC's claims for male applicants rejected prior to the charge-filing deadline.
E. The EEOC's Retaliation Claim
LAWL contends that the retaliation claim brought by the EEOC for Koch under 42 U.S.C. § 2000e-5(f) is mooted by Koch's settlement agreement and voluntary dismissal.
"When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination." Gen. Tel. Co. of the Northwest, Inc. v. E.E.O.C., 446 U.S. 318, 326, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Thus, "the EEOC is not merely a proxy for the victims of discrimination and . . . [its] enforcement suits should not be considered representative actions." Id. Accordingly, the EEOC is "the master of its own case," and "has the authority to pursue victim-specific relief regardless of the forum that the employer and employee have chosen to resolve their disputes." E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 292, 295, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). Simply put, Koch cannot limit the EEOC's authority to enforce Title VII by waiving the EEOC's statutory remedies.
The holding in Waffle House was expressly limited to the effect of arbitration agreements on EEOC remedies. Id. at 297, 122 S.Ct. 754. Although the Supreme Court noted that a monetary settlement should at least limit the extent of the EEOC's monetary recovery for the victim, as "courts can and should preclude double recovery by an individual," it did not state that a private waiver of rights could completely preclude the EEOC from seeking victim-specific relief Id. at 297, 122 S.Ct. 754. Following the rationale in Waffle House, the Court will permit the EEOC to seek monetary relief for its retaliation claim, and will offset any such award by the monetary relief paid Koch under her settlement agreement with LAWL.[3]Senich v. American-Republican, Inc., 215 F.R.D. 40, 45 (D.Conn.2003); accord E.E.O.C. v. Continental Airlines Inc., No. 04-C-3055, 2006 WL 3505485, at *2 (N.D.Ill.Dec.4, 2006).
LAWL also argues that the EEOC is not entitled to injunctive relief under its retaliation claim because there is no evidence that LAWL has retaliated against any employee since Koch's discharge in 1998, or that it is likely to do so in the future.
The "voluntary discontinuance of challenged activities by a defendant" only makes injunctive relief unnecessary "when there is no reasonable expectation that the wrong will be repeated," and the "defendant[] face[s] a heavy burden to establish mootness in such cases." Lyons Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 800 (4th Cir.2001).
The EEOC has produced evidence of another incident of retaliation since Koch's discharge (Pl.'s Opp'n Ex. 20 at 18-19, Ex. 26 at 249-52), and LAWL fails to meet its heavy burden of establishing mootness, alleging only that future non-compliance with Title VII's retaliation prohibition is improbable because of its "growing HR *537 Department." Def.'s Opp'n 30. Accordingly, LAWL's motion for summary judgment on the EEOC's retaliation claim will be denied, and its motion for partial summary judgment on the same claim will be denied as moot.
F. Records Preservation
The EEOC claims that LAWL has violated the record-retention requirements of 42 U.S.C. § 2000e-8(c) and the EEOC's pursuant regulation, 29 C.F.R. § 1602.14. As remedies, the EEOC seeks an injunction requiring LAWL to comply with the statute and regulation, and adverse-inference instructions regarding those records that are unavailable due to LAWL's failure to comply. Both parties move for summary judgment.
Title 42 U.S.C. § 2000e-8(c) provides that:
[e]very employer . . . shall (1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, (2) preserve such records for such periods, and (3) make such reports therefrom as the [EEOC] shall prescribe by regulation.
42 U.S.C. § 2000e-8(c). Under 29 C.F.R. § 1602.14, the EEOC requires:
[a]ny personnel or employment record made or kept by an employer (including but not necessarily limited to . . . records having to do with hiring, . . . or termination . . .) shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of one year from the date of termination. Where a charge of discrimination has been filed . . . against an employer under title VII . . ., the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action. The term "personnel records relevant to the charge," for example, would include personnel or employment records relating to the aggrieved person and to all other employees holding positions similar to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected.
29 C.F.R. § 1602.14.
G. Injunctive Relief
Title VII expressly provides injunctive relief for violations of § 2000e-8(c) and the EEOC's pursuant requirements. 42 U.S.C. § 2000e-8(c) ("If any person required to comply with the provisions of this subsection fails or refuses to do so, the . . . district court . . . shall, upon application of the [EEOC], . . . have jurisdiction to issue to such person an order requiring him to comply.").
On January 7, 2005, the Court affirmed Magistrate Judge, Grimm's June 30, 2004 Order granting in part then plaintiff-intervenor Koch's motion for discovery-abuse sanctions under Rule 37. Papers No. 106, 126. Judge Grimm found that LAWL had failed to retain documents that were "incredibly relevant" to Koch's retaliation claim, and recommended an adverse-inference instruction to the Court. Pl.'s Mem. App. A. Ex. 1 at 43 (June 29, 2004 Mot. Hr'g Tr.).
Although LAWS argues that the facts concerning its preservation of employment records relevant to the EEOC's pattern-or-practice claim are in dispute, it does not challenge the Court's factual finding that it *538 breached its duty under Title VII to preserve all documents and materials relevant to Koch's retaliation claim. LAWL relies instead on its contention that the EEOC's retaliation claim was mooted by Koch's settlement agreement, and thus its obligation to retain documents related to Koch's claim terminated with her settlement.
The EEOC's retaliation claim, however, is not moot, and LAWL's failure to abide by Title VII's retention policy with respect to that claim remains undisputed. Accordingly, the Court will grant the requested injunctive relief and order LAWL to comply with the requirements of 42 U.S.C. § 2000e-8(c) and 29 C.F.R. § 1602.14.
H. Adverse Inference Instructions
LAWL argues that the EEOC's motion for adverse inference instructions is procedurally improper because the EEOC never moved for an order to compel discovery of the allegedly despoiled documents or for sanctions under Rule 37. Thus, LAWL contends, the EEOC's circumnavigation of discovery procedures makes its appeal to the Court's inherent powers unjustified. The EEOC argues that its Amended Complaint expressly requests adverse-inference instructions as relief from LAWL's Title-VII-record-keeping violation, and granting such relief is in the Court's inherent power to remedy spoliation of evidence.
"The right to impose sanctions for spoliation arises from a court's inherent power to control the judicial process and litigation, but the power is limited to that necessary to redress conduct which abuses the judicial process." Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir.2001) (internal quotation marks omitted). In choosing an appropriate sanction for spoliation, "the trial court has discretion to pursue a wide range of responses both for the purpose of leveling the evidentiary playing field and for the purpose of sanctioning the improper conduct." Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir.1995).
If spoliation has occurred, a court may impose an adverse-inference instruction pursuant to its inherent authority, but such an extreme sanction is not to be given lightly. See Thompson v. U.S. Dept. of Housing and Urban Development, 219 F.R.D. 93, 100-01 (D.Md.2003) (considering adverse-inference instructions as sanctions for violating discovery orders). As the Court explained:
In practice, an adverse inference instruction often ends the litigation  it is too difficult a hurdle for the spoliator to overcome. The in terrorem effect of an adverse inference is obvious. When a jury is instructed that it may infer that the party who destroyed potentially relevant evidence did so out of a realization that the evidence was unfavorable, the party suffering this instruction will be hard-pressed to prevail on the merits.
Id. Thus, to warrant an adverse-inference instruction, the movant must show that:
(1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered;
(2) the destruction or loss was accompanied by a culpable state of mind; and
(3) the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.
Id. at 101 (internal quotation marks omitted). Three states of mind satisfy the culpability requirement: bad faith or knowing destruction, gross negligence, and *539 ordinary negligence, with the more culpable state of mind lessening the burden of showing relevance. Id. "When evidence is destroyed in bad faith (i.e. intentionally or willfully), that fact alone is sufficient to demonstrate relevance." Id. (internal quotation marks omitted).
As to whether an adverse-inference instructions are appropriate remedies for violations of Title VII's document-retention requirements, there is no Fourth Circuit law directly on point, but other circuits provide some guidance. The Seventh Circuit affirmed a refusal to give such an adverse-inference instruction, holding that, "absent bad faith, a violation of 29 C.F.R. § 1602.14 . . . would not automatically trigger an adverse inference." Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir.2002). The Second Circuit approved an adverse-inference instruction for an employer's complete failure to retain an employee's performance records in Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 383-84 (2nd Cir.2001). In Zimmermann, the court held that:
where, as here, the employer was required by law to retain the employee's records, bad faith that might otherwise be required, need not be shown to permit an adverse inference; intentional destruction satisfies the mens rea requirement. The only other requirement is that the party seeking the inference show that the destroyed records were relevant to the party's claim or defense.
Id. (internal citations omitted).
I. Retaliation Evidence
The Court has already affirmed Magistrate Judge Grimm's recommendation of an adverse-inference instruction for LAWL's failure to maintain documents relative to Koch's retaliation claim. Papers No. 106, 126; Pl.'s Mem.App. A. Ex. 1 at 43. As the undisputed facts warranting redress of LAWL's spoliation of evidence relevant to the EEOC's retaliation claim are identical to those of Koch's, it follows that an adverse-inference instruction is equally appropriate. Accordingly, the Court will provide an adverse-inference, instruction to the jury with respect to the EEOC's retaliation claim.
J. Pattern-or-Practice Evidence
The facts material to LAWL's alleged spoliation of records relevant to the EEOC's pattern-or-practice claim, however, are in dispute. The parties disagree on when LAWL's obligation to preserve documents relative to the pattern-or-practice claim commenced. Section § 1602.14 specifies that "[w]here a charge of discrimination has been filed . . . against an employer under title VII . . ., the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action." 29 C.F.R. § 1602.14. The EEOC argues that LAWL was put on notice of a potential pattern-or-practice claim as early as July 1998, when LAWL received a copy of Koch's retaliation charge. LAWL contends that it did not anticipate litigation concerning the pattern-or-practice claim until it received the EEOC's September 14, 2000 determination letter.
Koch's amended retaliation charge states that she was terminated "because [she] complained . . . about [LAWL's] failure to hire qualified male applicants." Def.'s Mem. Ex. XX. Although Koch's charge demonstrates that she opposed a discriminatory hiring practice, it does not indicate whether the offending conduct was localized or part of a company-wide policy, thus it is insufficient notice of a pattern-or-practice claim. However, LAWL received notice of the scope of Koch's sex-discrimination allegation prior to receipt of the EEOC's determination *540 letter. On May 10, 2000, the EEOC provided LAWL's attorneys a request for "additional documentation" relevant to "the underlying allegations of [LAWL's] hiring practices." Def.'s Opp'n Ex. H. The May 10, 2000 letter specifically requested "copies of all applications and/or resumes, applicant logs, lead/response tracking sheets and any interview notes pertaining to counselor vacancies occurring during the period of January 1995 to the present," as well as "a list of all hires . . . hired by [LAWL]" during the same period. Id. Accordingly, LAWL was on notice of its statutory duty to preserve documents relative to the EEOC's pattern-or-practice claim when it received the EEOC's May 10, 2000 request.
Although the temporal extent of LAWL's obligation is resolved, the facts material to LAWL's state of mind and what evidence has actually been despoiled remain disputed. For example, the EEOC alleges that in early 2002, LAWL failed to instruct its payroll administrator to preserve the payroll data of former employees in its payroll system; but LAWL shows that the employee data are still available in an alternative format. Def.'s Opp'n Ex. 0 at 171-72; Ex. KK at 250-51. The EEOC alleges that it has been unable to locate an application or resume in at least 52% of the electronic personnel files produced by LAWL,; however it admits that it has not had time to review all of the applications and resumes produced by LAWL. Pl.'s Mem. 8 n. 1. The EEOC further alleges that LAWL either destroyed or failed to keep the applications and resumes of persons whom it did not hire. But the EEOC's evidence of employees destroying applicant resumes or applications is only anecdotal, and falls short of proving a company policy of destroying applicant records. Further, LAWL produces evidence demonstrating that it has maintained a policy of retaining documents, resumes, and interview notes since 1999 (Def.'s Opp'n Ex. P at 44-45, 57-58. (Karen Siegel Dep.)), and has attempted to make applicant data from internet job-posting services available to the EEOC (Def.'s Opp'n Exs. AA, BB).
In sum, there are too many disputed facts material to the EEOC's claim of despoiled pattern-or practice evidence to warrant summary judgment. Accordingly, the EEOC's motion for adverse-inference instructions with respect to its pattern-or-practice claim will be denied; and, as the EEOC's motion for partial summary judgment will otherwise be granted, LAWL's motion for summary judgment with respect to the EEOC's document-preservation claims will be denied.
IV. Motions for Leave to File Surreplies
"Unless otherwise ordered by the Court, surreply memoranda are not permitted to be filed." D. Md. R. 105(2)(a).
The EEOC's proposed surreply responds to LAWL's use of Ledbetter v. Goodyear Tire & Rubber Co., ___ U.S. ___, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) in its Reply to support its statute of limitations argument. LAWL's proposed surreply challenges evidence cited in the EEOC's Reply that LAWL contends was undisclosed and is inadmissible.
As the parties' proposed surreplies respond to case law and evidence that were not relied upon by the Court in its determinations, their arguments are irrelevant. Accordingly, the parties' motions for leave to file surreplies will be denied.
V. Conclusion
For the reasons stated above: (1) LAWL's motion for summary judgment will be denied; (2) LAWL's motion for partial summary judgment will be denied as moot; (3) the EEOC's motion for partial *541 summary judgment will be granted in part and denied in part: LAWL will be ordered to comply with the document retention requirements of 42 U.S.C. § 2000e-8(c) and 29 C.F.R. § 1602.14, and an adverse-inference instruction will be given with respect to the EEOC's retaliation claim, but not with respect to its pattern-or-practice claim; and (4) the parties' motions for leave to file surreplies will be denied.
NOTES
[1]  Pub.L. No. 88-352, 78 Stat. 253; as amended, 42 U.S.C. §.§. 2000e to 2000e-17.
[2]  Federal Rule of Evidence 801(d) provides that:

[a] statement is not hearsay if . . . [t]he statement is offered against the party and is . . . (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.
Fed.R.Evid. 801(d).
[3]  LAWL contends that Koch's financial claims, including those for punitive damages, have been fully satisfied by the settlement agreement. But because LAWL chooses to keep the terms of the agreement confidential, it fails to show what amount recovered by the EEOC would be a windfall for Koch.


568 S.E.2d 192 (2002)
356 N.C. 161
William A. CRIDER, Jr.
v.
The JONES ISLAND CLUB, INC.
William A. Crider, Jr.
v.
The Jones Island Club, Inc., a North Carolina Corporation
Ann Crider, William Crider, III, Virginia Crider Mock and Cynthia Crider Jarrell
v.
The Jones Island Club, Inc.
No. 691P01.
Supreme Court of North Carolina.
August 15, 2002.
John M. Martin, Greenville, for Criders.
Luther D. Starling, Jr., Kelly Daughtry, Smithfield, for The Jones Island Club, Inc.
Prior report: 147 N.C.App. 262, 554 S.E.2d 863.

ORDER
Upon consideration of the petition filed by Plaintiffs in this matter for a writ of certiorari to review the decision of the North Carolina Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals:
"Denied by order of the Court in conference, this the 15th day of August 2002."


331 F.Supp. 1253 (1971)
EASTERN FEDERAL CORPORATION
v.
AVCO-EMBASSY PICTURES CORP.
Civ. A. No. 11895.
United States District Court, N. D. Georgia, Atlanta Division.
June 25, 1971.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, I. T. Cohen and Scott Charlton, Atlanta, Ga., for plaintiff.
Troutman, Sams, Schroder & Lockerman, Robt. S. Sams, Tench C. Coxe, Milton A. Carlton, Jr., James E. Joiner, Atlanta, Ga., Javits, Trubin, Sillcocks & Edelman, New York City, for defendant.

ORDER ON MOTION TO VACATE OR TO ALTER
EDENFIELD, District Judge.
This diversity action for breach of contract was tried non-jury before this court and the court awarded plaintiff damages of $102,155.44 and allowed a set-off of $62,288.46 against plaintiff. Defendant has now moved this court to vacate or alter its order of December 29, 1970, 326 F.Supp. 1280, and the judgment entered on this order. In the motion to vacate or alter, defendant argues that the court's finding that the parties made a binding exhibition agreement on June 22, 1967, that was modified on *1254 February 3, 1968, is contrary to the evidence. Defendant also challenges the award of damages for loss of profits to the Miracle Theatre in Smyrna, Georgia, on the grounds that the award is unsupported by the evidence and that the award is unlawful because it exceeds the amount prayed for. Finally, defendant argues that the court erred in allowing plaintiff to recover pre-judgment interest on loss of profits damages.

I. Findings of Fact

Defendant challenges several of the court's findings of fact as being contrary to the evidence. Essentially the fact findings challenges are those relating to the finding of a contract on June 22, 1967, the finding of a modification of the contract on February 3, 1968, and the finding that the Miracle Theatre was included in the modified contract.

A. Contract of June 22:

In this motion for reconsideration, defendant does not deny that a contract was made on June 22, 1967, between plaintiff and defendant for exhibition of several of defendant's movies at several of plaintiff's theatres. However, defendant does contend that the contract of June 22, 1967, contained a firm play date of December 22, 1967 for exhibition of "The Graduate" at plaintiff's Coronet Theatre in Atlanta and Miracle Theatre in Smyrna. Defendant then argues that plaintiff materially breached its contract when it failed to exhibit "The Graduate" on December 22, 1967, and the court erred in not regarding the December 22, 1967 play date as being "of the essence" of the June 22, 1967 contract. The court is familiar with this contention. However, the court's factual findings are to the contrary. After a review of the findings of fact and the transcript, the court remains convinced that the factual findings are correct and the defendant's contentions are based on an erroneous interpretation of the facts. See the factual findings numbered 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 43, 44, 45, 46, 47, 48 and the references to the transcript therein. Defendant further contends that the plaintiff's cancellation of the December 22, 1967 play date at the Coronet Theatre breached the exhibition contract for the Miracle Theatre in Smyrna as well as the Coronet, because the contract was not severable. This argument is premised on the assumption that plaintiff breached the contract when it cancelled the December 22, 1967 play date. As indicated above, this court has found to the contrary; and defendant's argument need not be considered further.

B. Modification of February 3, 1968:

Defendant contends that the parties did not intend to modify the June 22 contract when they met on February 3, 1968; rather, the parties were meeting to negotiate a new agreement. However, defendant claims this new agreement was never effected. These contentions are directly contrary to this court's findings that on February 3, 1968, the parties modified the existing contract of June 22, 1967, and that plaintiff's president, Meiselman, signed the blank forms with the understanding that the terms of the agreement, as modified, would be filled in. See findings of fact numbered 24, 25, 27 and 28, and the transcript references therein. Defendant also contends that its regional manager, James Frew, did not have the authority to bind defendant on a new contract or on modifications of an existing contract. The court has found that Frew did have actual authority to bind. See finding of fact numbered 25 and the transcript references therein. The court has reviewed the findings of fact and the transcript, and has discovered no reason to alter its findings.

C. Award of Damages for Miracle:

Defendant contends that the Miracle Theatre in Smyrna dropped from the minds of the parties after the December *1255 22, 1967 play date was cancelled for the Coronet in Atlanta and the Miracle in Smyrna. Defendant states that no subsequent play date was requested by plaintiff for exhibiting "The Graduate" at the Miracle. Specifically, defendant points to the absence of the Miracle in the modifications effected February 3, 1968. For these reasons defendant contends the Miracle somehow was removed from the contract. The court has found that the Miracle Theatre was included in the contract of June 22, 1967,[1] and that the contract of June 22, 1967 was not altered insofar as it applied to the exhibition of "The Graduate" at the Miracle Theatre in Smyrna, Georgia.[2] As defendant points out, the Miracle Theatre was not mentioned at the February 3, 1968 meeting which resulted in a modification of the June 22, 1967 agreement. However, the failure of the parties to modify the contract as it related to the Miracle, whether that failure to modify was intentional or not, does not make the agreement regarding the exhibition of "The Graduate" at the Miracle go away. Nothing short of a finding of an agreement to eliminate the Miracle from the contract, or a termination of the June 22, 1967 contract can eliminate the obligations of the parties regarding the Miracle in Smyrna. The evidence does not warrant either of these findings.
After reviewing the evidence admitted, the court remains convinced that the findings of fact initially entered on December 29, 1970, were correct. Insofar as defendant has moved to vacate this court's order because of erroneous findings of fact, this motion is denied.

II. Legal Questions

A. Damages for loss of profits at Miracle:

Defendant contends the court's award of damages for loss of profits at the Miracle Theatre in Smyrna was unlawful because it exceeded the amount sought by plaintiff. Apparently, defendant's contention is based on an item of documentary evidence submitted by plaintiff. It is true that one of plaintiff's exhibits (P-35) contained plaintiff's version of the computation of damages. This computation showed a loss of profits of $12,858.06 at the Miracle in Smyrna while this court awarded $22,779.75. However, the loss of profits indicated on P-35 is not the amount claimed in the complaint. Paragraph "17.a" of Count Two of the amended complaint by reference to paragraphs 10 and 11 of Count One seeks recovery of $300,000 for loss of profits at plaintiff's theatres as a result of the breach of the alleged contract by defendants. Paragraphs 10 and 11 do not separate the damage into loss of profits at specific theatres. Rather, the paragraphs merely claim $300,000 loss of profits at plaintiff's theatres for loss of profits. The total award for the loss of profits at the Miracle and the Cherokee was $102,155.44. Thus it is difficult to see how defendant can say that the court awarded more than was claimed by plaintiff.[3] The real test must be whether the award of damages is supported by the evidence. This court is convinced that the award is supported by the evidence. The court cannot be bound by the plaintiff's own computation of damages.[4]

*1256 B. Award of Damages for Pre-Judgment Interest:

Defendant contends that this court allowed plaintiff to recover pre-judgment interest on unliquidated damages contrary to Georgia law. In the court's computation of damages in Appendix II of the order of December 30, 1970, the court computed damages of $19,061.91 for the Miracle Theatre in Smyrna and $65,913.16 for the Cherokee in Atlanta. No award for interest was indicated in this computation. However, the narrative portion of the court's order concludes: "It is FURTHER ORDERED that the plaintiff have and recover interest at 7% per annum on the net amount of its recovery regarding the Cherokee and the Miracle. The interest shall date from February 21, 1968, concerning plaintiff's recovery on the amount of Cherokee's damages. The interest shall date from April 10, 1968 concerning the plaintiff's recovery on the amount of the Miracle's damages."
The Georgia statutes frame the question of whether pre-judgment interest must be allowed in terms of whether the damages are liquidated or unliquidated. Regarding liquidated damages, pre-judgment interest is required by Ga. Code Ann. § 57-110.[5] However, Ga.Code *1257 Ann. § 20-1408[6] has been construed in a breach of contract action involving unliquidated damages as allowing the jury, in its discretion, to include in the award an amount for pre-judgment interest. Tifton, T. & G. Ry. Co. v. Butler, 4 Ga. App. 191, 60 S.E. 1087 (1908). See also Western & Atlantic R. R. Co. v. Brown, 102 Ga. 13, 29 S.E. 130 (1897) (tort action referring to Ga.Code Ann. § 20-1408). Where the damages are unliquidated, it has been held error for the judge to charge that if the jury finds for the plaintiff on the contract it must award interest from the date of the breach. Snowden v. Waterman & Co., 110 Ga. 99, 35 S.E. 309 (1899); Mendenhall v. Nalley, 81 Ga.App. 517, 59 S.E.2d 283 (1950). Rather, the Court of Appeals has held the trial court should instruct the jury that it may in its discretion award pre-judgment interest on the unliquidated damages. Tifton, T. & G. Ry. Co., supra.[7]
On the basis of the above-mentioned cases, as well as several others,[8] it could be argued that Ga.Code Ann. § 20-1408 allows recovery of interest in a breach of contract action for unliquidated damages. However, the Fifth Circuit has previously considered the question of whether pre-judgment interest may be obtained in a breach of contract action for unliquidated damages. In Browne v. Makin, 177 F.2d 753 (1949), a Savannah river boat pilot brought an action for disability pay on a contract with the Savannah Bar Pilots Association. The pilot was found to be disabled and entitled to recovery. A question was raised concerning interest on the award. The Fifth Circuit held:
"The claims here were not liquidated or even ascertainable until the master made his findings. Under Georgia Law, interest is not recoverable on an unliquidated demand." 177 F.2d at 757.
In Merchants Ins. Co. v. Lilgeomont, Inc., 84 F.2d 685 (5th Cir. 1936), plaintiff insured sued defendant insurance company on a fire insurance policy covering insured's burned house. The trial resulted in a verdict for the face amount of the policies and for additional damages (7 per cent) in lieu of interest. The Fifth Circuit held that the claims on the insurance policy were disputed and thus did not present liquidated demands. The court then considered both Ga.Code Ann. § 57-110 and Ga.Code Ann. § 20-1408. It concluded: "There was thus no ascertainment or liquidation of the amount payable until the jury fixed it, and under the Georgia decisions referred to no interest before judgment was recoverable." 84 F.2d 690. See also, Lumbermens Mut. Ins. Co. of Mansfield, Ohio v. Cantex *1258 Mfg. Co., 262 F.2d 63 (5th Cir. 1958); Aetna Ins. Co. of Hartford, Connecticut v. Taylor, 86 F.2d 225 (5th Cir. 1936); Jacksonville Blow Pipe Co. v. Trammell Hardwood Flooring Co., 170 F.Supp. 537 (N.D.Ga.1958), aff'd. 264 F.2d 717 (5th Cir. 1959). Thus despite the implication in some Georgia cases that pre-judgment interest may be awarded in a breach of contract action for unliquidated damages, the Fifth Circuit cases set out above require a contrary ruling. For this reason, the interest awarded plaintiff in this court's order of December 29, 1970 should be written off as unauthorized by law. An altered judgment consistent with this ruling will be filed with this order.
In summary, the court has reviewed the evidence and determined that the initial findings concerning the making of a contract on June 22, 1967 and the modification of the contract on February 3, 1968 were correct. The damages awarded the plaintiff regarding the Miracle Theatre were within the ad damnum clause of the complaint; but even if the damages exceeded those sought by the plaintiff, this court would be required to award the damages warranted by the evidence. The court has reviewed the evidence of damages regarding the Miracle and is convinced the evidence requires the award made in Appendix II of the order of December 29, 1970. Finally, the court has concluded that pre-judgment interest awarded in the initial order and judgment should not be allowed. Accordingly, the judgment entered on January 26, 1971 should be amended by deleting from the judgment all amounts awarded the plaintiff as interest. For the reasons stated above, the defendant's motion to vacate is denied. Defendant's alternative motion to alter the court's judgment is granted to the extent indicated above regarding the deletion of interest from the plaintiff's award.
NOTES
[1]  See finding of fact number 7.
[2]  See finding of fact number 20.
[3]  Of course, in any event the trier of fact is not bound in awarding damages by what plaintiff claims. The question of whether the trier of fact may return more damages than prayed for is one of federal procedure and federal law. Riggs, Ferris & Geer v. Lillibridge, 316 F.2d 60 (2d Cir. 1963). Federal Rule of Civil Procedure 54(c) provides that in non-default cases the "final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." This rule clearly allows an award of damages in excess of the amount prayed for. If necessary, the court may allow amendment of the ad damnum clause to conform to the verdict. Stewart v. Banks, 397 F.2d 798 (5th Cir. 1968).
[4]  One of the primary reasons for a difference between the court's computations and the plaintiff's computations arises from a difference in sequence in considering the various cost factors. For instance, in its computations on the Miracle, plaintiff deducted first from the projected gross receipts of the Miracle, the amount of rental due the defendant distributor. After the rental was paid, plaintiff deducted the house operating expense from its portion (gross receipts less rental paid to the distributor). (See P-35 at page 1255.) The thrust of this approach is to require plaintiff-exhibitor to pay the house operating expense from plaintiff's share of the gross receipts. In arriving at damages this court reversed the process. That is, from the gross receipts the court first deducted the house operating expense. Then from the gross receipts less house operating expense, the court applied the film rental agreement. The thrust of this approach is to require defendant-distributor to share a part of the house operating expense. A review of the record reveals that in fact the defense attorney on cross-examination indicated complete agreement with the court's approach:

"Q. All right, sir. Is it not true, Mr. Meiselman, that the scale is constructed so that at any point between sixty percent, the top of the scale, and twenty-five percent on the bottom of the scale, the exhibitor receives an assumed house expense and the distributor and the exhibitor share equally in the  what I call profits that are left over from the exhibition of the picture?
"A. Based on a theoretic, pure reciprocal basis that is correct.
"Q. All right. So is it not to the exhibitor's advantage to state his house expense to the
"THE COURT: Let me ask a question right here. Is the net effect of that, that the exhibitor's expense first comes off the top and they divide what's left?
"MR. CARLTON: That is exactly it, Your Honor.
"THE WITNESS: No, that is not exactly it. That is assuming automatically that you gross more than what your assumed expenses are.
"MR. CARLTON: That's correct, Your Honor, within the operation of the scale itself which only goes down to twenty-five per cent, it operates as Your Honor has inquired.
"THE WITNESS: But it
"THE COURT: Of course, you might have a week you didn't even make expenses.
"THE WITNESS: That's correct, sir.
"THE COURT: But eliminating that situation, assume you had a week that falls within the twenty-five percent. The exhibitor gets his expenses and they divide what is left according to the scale?
"THE WITNESS: Theoretically that is the way it works." (T-288-289).
[5]  Ga.Code Ann. § 57-110 provides:

"All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them; if payable on demand, from the time of the demand. In case of promissory notes payable on demand, the law presumes a demand instantly and gives interest from date."
[6]  Ga.Code Ann. § 20-1408 provides:

"In all cases where an amount ascertained would be the damages at the time of the breach, it may be increased by the addition of legal interest from that time until the recovery."
[7]  In Tifton, T. & G. Ry. Co. the trial judge charged the jury as follows concerning pre-judgment interest on unliquidated damages:

"If you should find from the evidence in favor of the plaintiff against the defendant, I charge you that it is within your discretion whether you shall give interest on that amount, if you find a certain amount, from the time it was due up until the present time. Charging that (if you give interest) you cannot give more than 7 per-cent, taking into consideration the facts and circumstances in arriving at the same. If you should find in favor of the plaintiff, the form of your verdict would be `We, the jury, find in favor of the plaintiff' so many dollars."
The Supreme Court held that the trial judge's charge substantially conformed to Civil Code § 3800 which as quoted in the opinion is exactly the same as the present Ga.Code Ann. § 20-1408.
[8]  See also Smith v. Maples, 114 Ga.App. 529, 151 S.E.2d 815 (1966); Atlantic Coastline R. R. Co. v. Henderson Elevator Co., 18 Ga.App. 279, 88 S.E. 101 (1916).


48 F.3d 530
Kruegerv.Bremer*
NO. 94-50332
United States Court of Appeals,Fifth Circuit.
Feb 08, 1995
Appeal From:  W.D.Tex., No. SA-92-CA-223

1
AFFIRMED IN PART.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


187 So.2d 568 (1966)
Louis Lee RIDDLE, N. C. M., by guardian
v.
Carolyn Jay DOROUGH.
1 Div. 338.
Supreme Court of Alabama.
June 2, 1966.
*569 Kenneth Cooper, Bay Minette, for appellant.
Chason, Stone & Chason, Bay Minette, for appellee.
HARWOOD, Justice.
This is an appeal from a judgment entered in favor of the appellee, defendant below, in the Circuit Court of Baldwin County.
Appellant sued appellee for $25,000 for bodily injuries received when he was struck by the appellee's automobile while attempting to cross a public highway near Bay Minette. The appellant, who had been declared non-compos mentis, sued by his legal guardian, his wife, Gladys Riddle.
Count 1 alleged simple negligence and Count 2 charged wanton misconduct. The *570 appellee plead the general issue and contributory negligence to Count 1 and the general issue to Count 2.
Upon conclusion of the testimony, the court gave the affirmative charge as to Count 2, the wanton count. The case was submitted to the jury on Count 1, and verdict was for the defendant. Judgment was entered pursuant to the verdict. No motion for a new trial was filed.
The plaintiff is a middle aged male who lives south of Bay Minette with his family. His residence is located approximately a half mile to the west of U. S. Highway 31 which runs from Bay Minette to Mobile. On the morning of the accident the appellant, around 8:30 o'clock, walked from his house to the highway to get mail from a mailbox which is located on the opposite or east side of the highway. The appellant's general health is poor and his eyesight is limited to some extent. He uses a walking cane to assist him in his movements.
The testimony establishes that the appellant went to the highway unaccompanied and crossed the highway to the mailbox. Upon removing the mail from the mailbox he turned and started walking in a northerly direction toward Bay Minette. After having walked a short distance, he turned and started back toward the mailbox. He was walking on the east shoulder of the highway.
The appellee was driving her automobile in a northerly direction toward Bay Minette. The appellee's four children and her father were passengers in her automobile. Apparently it had rained earlier that morning though the rain had ceased at the time of the accident. The appellee had been driving approximately forty to fifty miles per hour but she had just passed a sign indicating a speed limit of forty miles per hour and she decreased her speed to approximately thirty to thirty-five miles per hour. The appellee testified she observed the appellant walking on the shoulder of the road approximately "a block or two" away and that he was walking on the side of the highway facing the approaching traffic. She testified that when the distance had closed to approximately fifteen feet the appellant made an abrupt turn and walked onto the highway directly in front of her vehicle. When he stepped in front of her automobile, he waved a walking stick in her direction.
The appellee applied her brakes and swerved her automobile to the right in an attempt to avoid hitting the appellant who was now nearly in the center of the highway. The appellee testified that she was unable to avoid striking the appellant despite all efforts to do so and the left front of her automobile struck him.
Two witnesses who were in an automobile directly behind the automobile of the appellee gave similar testimony. The substance of their testimony is that they had been following the appellee's automobile for a number of miles. The driver of this following vehicle testified that she observed the appellant when he was approximately four car lengths or a little more ahead of her. She was following some three car lengths behind the appellee's vehicle. When the appellee's vehicle was only some two car lengths away from the appellant, he started across the highway. The passenger in the following automobile testified he observed the appellant when he was approximately four or five car lengths away and that nearly at the same time he saw the appellant, he stepped in front of the appellee's vehicle. This witness estimated that the appellee was within a car length or two of the appellant when he left the shoulder of the highway.
The appellee's father testified he observed the appellant about "a block or a block and a half" away as he was walking in a southerly direction along the shoulder and was facing the approaching traffic. The witness further testified that when they *571 were within two car lengths the appellant suddenly turned to his right and started across the highway waving his cane as he did so.
The appellant was found competent to testify. The substance of the appellant's testimony on direct examination was that after he had removed the mail from the box, he looked in both directions before attempting to cross the highway. To the north he observed a "van truck" which was proceeding in a southerly direction toward him. The truck was some 200 to 300 feet away from him at this time. He then looked to the south and observed two automobiles traveling toward Bay Minette. These vehicles were "500 feet or more" away. The appellant waited until the truck passed and then started to cross the highway. The appellant testified that when the truck passed the wind "sagged" him a little, but he felt he had time to get across and he attempted to cross the highway. The appellee's car struck him when he had nearly reached the center line of the highway. The appellant testified that just before the automobile struck him he waved his cane and hands in that direction.
On cross examination the appellant testified that after he removed the mail he walked up the highway for a short distance and then turned and started back. He observed the truck approaching from one direction and the two cars from the other. The appellant then testified that when the truck passed he felt that he had time to get across. The approaching automobiles were still approximately 200 feet away. The appellant testified that he took some five or six steps and had nearly reached the center line of the highway when he looked in the direction of the approaching vehicles and realized that the automobile was within one car length of him. He waved his walking stick and then the automobile struck him. The appellant was later asked on cross examination if it wasn't true that when he stepped out onto the paved portion of the highway that the approaching automobile was only one or two car lengths away from him. The appellant answered in the affirmative.
The appellee, her father, and the two witnesses traveling in the automobile following the appellee all denied that there was a truck approaching from the opposite direction just prior to the accident.
Testimony was submitted by the investigating officer and other witnesses establishing that the appellant, after being struck by the appellee's vehicle, was found to be lying in a position some 22 steps north of the mail box and nearly in the center of the highway.
The appellant argues some fourteen assignments of error in brief.
The appellant urges under assignment number 1 that the trial court erred in allowing, over appellant's objection, a city policeman to testify on cross examination that he had warned the appellant, because of his physical infirmities, not to ever get out on the highway unaccompanied.
It is appellant's contention that the questioning of the police officer concerning this prior transaction was error as the matter had not been gone into upon direct examination and the cross examination should have been limited to those matters brought out on direct examination.
"The right of cross-examination thorough and sifting, belongs to every party as to the witnesses called against him." Section 443, Title 7, Code of Alabama 1940.
In Alabama, the so-called English Rule of cross examination prevails, that is, the cross examination is not limited to matters brought out on direct examination of a witness, but extends to all matters within the issues of the case. Coward v. McKinney, 277 Ala. 513, 172 So.2d 538; Madden v. State, 40 Ala.App. 271, 112 So.2d *572 796; 1 Thompson on Trials, 2nd Ed., Sec. 430 et seq.
The appellant's complaint was founded upon the alleged negligence of the appellee and the appellee had pleaded that the appellant was guilty of contributory negligence. It therefore seems clear that the testimony solicited was directly related to the issues of the case. Assignment of error number 1 is without merit.
Assignment of error number 2 is related to the trial court's action in sustaining appellee's objection to a question propounded to a witness for appellant concerning whether or not the witness observed the appellant's cap at the scene of the accident. Previous testimony had established that the appellant was wearing a cap when he left home earlier that morning. The appellant then asked the witness a similar question and the witness answered in the negative. Granting, without deciding, that the trial court's ruling was in error, the subsequent admission of the witness that he did not see the cap at the scene would render any error harmless. Gunter v. Ganous, 269 Ala. 589, 114 So.2d 389, [H.N. 6]; Nelson v. Johnson, 264 Ala. 422, 88 So.2d 358, [H.N. 10]; Crescent Amusement Co. v. Knight, 263 Ala. 445, 82 So.2d 919, [H. N. 12]; Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
Assignment 3 is based upon the trial court's excluding the answer of a witness for the appellant that when the witness arrived at the scene of the accident some minutes after its occurrence, he observed that both shoes were not on the appellant's feet.
Evidence pertaining to the condition of the place or thing before or after an accident under certain conditions is admissible in a suit as evidence of its condition at the time of such accident.
There is no contradiction in the record as to the speed of appellee's automobile at the time the appellant was struck nor as to any of the facts surrounding the accident. The excluded answer may have tended to shed light upon the rate of speed of appellee's automobile had the matter been in dispute. The testimony of the appellee and her witnesses was to the effect that appellee was driving at between thirty and thirty-five miles per hour at the time appellant was hit, and that the impact was strong. Thus the answer excluded related to uncontradicted facts, and its exclusion in our opinion could not probably have injured the appellant in any substantial right. We will not posit a reversal upon the ruling in this instance. Supreme Court Rule 45.
Appellant's fourth assignment of error concerns the trial court's action in sustaining appellee's objection to a question propounded to a witness for the appellant as to whether or not he observed "any automobiles pull out on the right side of the road going north." The witness was driving a school bus proceeding in a southerly direction when he observed that an accident had occurred and that traffic was stopped ahead of him. According to the witness one or two vehicles were proceeding in front of him at that time. The witness stopped his bus and walked to where he observed the appellant lying in the middle of the road. At this point in his testimony, the witness was asked the following question, "Now did you see any automobiles pull out on the right hand side of the road going north?" The objection of the appellee was sustained. The action of the trial court in sustaining an objection to this question is without error, the witness having testified that he arrived at the scene after the accident occurred. Whether an automobile pulled out on the right hand side at this time was irrelevant and immaterial and could shed no light on the issues involved.
Appellant's fifth assignment of error is that "the verdict of the jury was contrary to the evidence in the case." This is *573 not an adequate assignment of error; it alleges no error on the part of the trial court. Only adverse rulings of the trial court are subject to an assignment of error and reviewable on appeal. Accident Indemnity Insurance Co. v. Feely, Ala., 181 So.2d 889; Mulkin v. McDonough Construction Co. of Georgia, 266 Ala. 281, 95 So.2d 921; Alabama Digest, Appeal and Error.
Assignment of error number 6 urges that the trial court erred in giving the appellee's written requested charge number 3. The charge provided as follows:
"The Court charges the jury that the Defendant in this case had the right to assume that Louis Lee Riddle was in possession of all his faculties."
The appellant insists that this was an instruction on a question of fact and not a question of law and therefore invaded the province of the jury. The evidence shows that the appellant was walking on the shoulder of the road facing the approaching vehicle of the appellee. The appellee testified she observed the appellant walking on the shoulder and that when the distance between appellant and her vehicle was approximately fifteen feet, he turned and started across the highway directly in front of her vehicle. A similar charge was approved in the case of Vansandt v. Brewer, 209 Ala. 131, 95 So. 463, the court observing:
"In the absence of circumstances showing the contrary, an adult is generally presumed to be in possession of the normal faculties of mind and body, including the senses of sight and hearing."
The appellant also contends that the charge was in error in that it did not specify whether the jury could assume the appellant was in possession of all his faculties at the time of the accident or at the time of the trial. This also is without merit. The tense of the charge was that of the past tense. It clearly referred to the circumstances surrounding the accident.
Assignments 7 and 8, allege error because of the giving of appellee's requested charges 4 and 6. These charges respectively pertain to contributory negligence on the part of the appellant as a defense.
Counsel for appellant does not attack the correctness of the charges per se, but argues that the giving of the charges was erroneous because of the insufficiency of the plea of contributory negligence, in that "defendant's plea of contributory negligence did not specify the specific acts of alleged contributory negligence by the plaintiff; hence no evidence of contributory negligence was admissible."
No demurrer was filed to the plea of contributory negligence, nor was any objection interposed to appellee's proffered testimony tending to establish such plea. The case was tried below on the issues of appellee's negligence, and appellant's contributory negligence, and the court in its oral instructions so advised the jury. No objection was interposed to these instructions.
Parties may frame their own issues, and immaterial matters may thereby be made material. Fraternal Aid Union v. Monfee, 230 Ala. 202, 160 So. 529. If the cause is tried upon an insufficient or immaterial plea without objection being first taken by demurrer, the judgment of the court must be pronounced in accordance with the result of the issues. Austin v. Clark, 247 Ala. 560, 25 So.2d 415. In the present case not only was no demurrer filed to the plea of contributory negligence, but no objections were interposed either to the evidence tending to establish such plea, nor to the instructions of the court submitting the issue of contributory negligence to the jury. In this posture, assignments 7 and 8 are clearly without merit.
Assignment of error 9 charges that the court erred in charging the jury that they could find that the plaintiff was injured as a result of a mere accident. We have held that neither the giving or refusal of "unavoidable accident" or "mere accident" *574 charges constituted reversible error, though the better practice is to refuse them. Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277; Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516 (19); Socier v. Woodward, 264 Ala. 514, 88 So.2d 783.
Assignment of error No. 10 asserts as error the giving of appellee's written requested charge No. 11. This charge was given without error. Smith v. Crenshaw, 220 Ala. 510, 126 So. 127.
Assignment of error No. 11 asserts as error the action of the lower court in giving appellee's requested charge No. 15 which was affirmative in nature as to Count 2 (wanton negligence).
It is our conclusion that the evidence did not support an inference of wanton conduct, that is, that the appellee, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some duty which produced injury to the appellant. These essential elements of wantonness can be inferred from the evidence only by resort to surmise and conjecture. Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277. Charge 15 was therefore properly given.
The trial court refused appellant's written instruction number 9 and this action is presented as assignment of error 12. Assuming, without deciding, that this was a correct statement of law as applied to the evidence presented in the trial, the refusal of this charge requested by the appellant furnishes no predicate for reversal in that the principle of law set forth in appellant's requested written charge 9 was fairly and substantially covered by the court's oral charge and other written charges given at the request of the appellant. Code of Alabama 1940, Title 7, §273; Smith v. Lawson, 264 Ala. 389, 88 So.2d 322; Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 74 So.2d 266.
Assignments of error 13 and 14 are based upon the trial court's refusal to give appellant's requested instructions numbers 10 and 11, respectively. These charges were refused without error in that they were abstract under the evidence, and were misleading.
Affirmed.
LIVINGSTON, C. J., and MERRILL and COLEMAN, JJ., concur.


443 F.Supp.2d 218 (2006)
Rafael SILVA RIVERA, et al., Plaintiffs
v.
STATE INSURANCE FUND CORPORATION, et al., Defendants.
Civil No. 03-1727(DRD).
United States District Court, D. Puerto Rico.
July 31, 2006.
*219 John F. Nevares, John F. Nevares & Assoc. PSC, San Juan, PR, for Plaintiffs.
*220 Jo-Ann Estades-Boyer, Prado, Nunez & Associates, PSC, Jose Enrico Valenzuela-Alvarado, Department of Justice Office of the Solicitor General, Juan M. Rivera-Gonzalez, Ruben A. Rivera-Rosa, Sanchez Betances Sifre Munoz Noya & Rivera Law Offices, PSC, San Juan, PR, for Defendants.

OPINION AND ORDER
DOMINGUEZ, District Judge.
On July 1, 2003 plaintiffs Rafael Silva Rivera and his wife, Joanne Fabricio Fernandez, filed a complaint for injunctive relief, declaratory judgment, compensatory and punitive damages pursuant to 42 U.S.C. § 1983. The plaintiffs allege that their constitutional rights to freedom of speech and association were violated due to having been discriminated against because of their political affiliations. In addition, plaintiffs aver violations to the equal protection of the laws and due process of law, protected by the First, Fifth, and Fourteenth Amendments to the Constitution of the United States, as well as by the Article II, Sections 1, 6, and 7 of the Constitution of the Commonwealth of Puerto Rico. Plaintiffs contend these rights were infringed when the hearings granted to them by defendants were merely informal, non-adversarial, administrative proceedings held by the agency itself which, in turn, only afforded Mr. Silva Rivera the opportunity to present evidence to contradict his employer's purported reasons for dismissal (Docket No.21).
Pursuant to the complaint, the alleged Constitutional violations then became evident when outcome of these hearings became known. The administrative hearings resulted in the recommendation, from an hearing examiner, to terminate Mr. Silva Rivera from his employment. The plaintiffs state that the administrative procedure cannot be binding in as much as an interested party, his employer, remains the ultimate decision-maker.[1] Plaintiffs also allege that the defendants are liable under Article 1802 of the Puerto Rico Civil Code, P.R. LAWS ANN. tit. 31, § 5141, since Mr. Silva Rivera was deprived of his functions and responsibilities as a career employee, and, as a result, he felt segregated and humiliated in front of other employees. Plaintiffs allegedly suffered great physical, moral, and mental distress. Subsequently, the defendants filed a motion for summary judgment asserting the applicability of the doctrines of res judicata and/or collateral estoppel, thus, barring plaintiffs' civil rights claims in the instant case.
On May 10, 2006, the Court issued an order (Docket No.52) referring this matter to Magistrate Judge Gustavo Gelpí for his Report and Recommendation ("R & R"). Magistrate Judge Gelpí, in turn, issued his R & R on May 11, 2006 (Docket No. 53) wherein he recommends the Court grant defendants' brevis disposition and, ultimately, dismiss plaintiffs' complaint. Therein, the Magistrate clearly warned all parties that they had ten (10) days to object to the R & R.[2] Accordingly, *221 plaintiffs timely filed their objections to the R & R (Docket No. 54). Therefore, defendants filed their opposition to the plaintiffs' objection to Magistrate Judge Gelí's R & R on June 15, 2006 (Docket No. 58). The Court is ready to rule.

I
The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993); FED. R.CIV.P 72(b); L.Civ.R. 72(b). See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Of course, an adversely affeeted party may contest the Magistrate's Report and Recommendation by filing its objections within ten (10) days after `being served a copy thereof. See L.Civ.R. 72(d); FED.R.CIV.P 2(b). Moreover, 28 U.S.C. § 636(b)(1), in pertinent, part provides that:
Within ten days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.
In the instant case, the "R & R" correctly and clearly points out that any objections to the motion must have been filed with the Clerk of the Court "within ten (10) days after being served with a copy thereof'. L.Civ.R. 72(c); see also 28 U.S.C. § 636(b)(1). Further, the "written objections[] shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the legal basis for such objections". Local Civil Rule 72(c). "Failure to file objections within the specified time waives the right to appeal the District Court's order." See United States v. Mitchell, 85 F.3d 800, 803 (1st Cir.1996); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986). "Absent objection by the plaintiffs, the district court had a right to assume that plaintiffs agreed to the magistrate's recommendation." Templeman *222 v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, "[f]ailure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objection are precluded on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that "[o]bjection to a magistrate's report preserves only those objections that are specified"); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, "however he was not entitled to a de novo review of an argument never raised"). See generally United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).
After conducting a de novo review of the record, the Court finds that the R & R thoroughly and correctly addressed the issues presented by the defendant in its motion, except as herein clarified. See Gioiosa v. United States, 684 F.2d 176 (1st Cir.1982) (district court was required to make de novo determination of those portions of magistrate's report objected to, which recommended that habeas corpus petition be denied); compare Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985, 990-91 (1st Cir.1988) ("At most, the party aggrieved is entitled to a review of the bidding rather than to a fresh deal. The rule does not permit a litigant to present new initiatives to the district judge. We hold categorically that an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate."). As such, for the reasons stated below, the Court now ADOPTS in toto the Magistrate's R & R and thus DISMISSES WITH PREJDICE plaintiffs' federal claims and WITOUT PREJUDICE all state claims.

II
Magistrate Judge Gustavo Gelpí properly and correctly found appropriate the dismissal of the plaintiffs' Section 1983 claims of political discrimination. In an action based on political discrimination, the plaintiff bears the initial burden of proof. The plaintiff needs to establish that his or her political affiliations were a "substantial or motivating" factor behind the challenged employment action[s]. See Mt. Healthy School Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The defendant, in turn, may present evidence of a nondiscriminatory reason. Padilla-García v. Rodriguez, 212 F.3d 69, 78 (1st Cir.2000). Said evidentiary framework readily may be used in the summary judgment context. See Texas v. Lesage, 528 U.S. 18, 19, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999); Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145, 153-154 (1st Cir. 2006). Where a defendant, in Rule 56(c) context, presents competent evidence of non-discriminatory reasons for the personnel action taken, plaintiff is obligated to show to the Court that a genuine issue of fact nonetheless lies as to said reason's veracity. See Vélez-Rivera, 437 F.3d. at 155. This threshold may be reached in one of two ways; either by presenting conflicting evidence which creates a genuine factual issue as to whether political consideration was a motivating or substantial factor, or, in the alternative, the plaintiff *223 can demonstrate that the record itself generates material issues of fact as to the presence of political motivation being a substantial or motivating factor.
Plaintiffs object the Magistrate's R & R on the following grounds: (1) the Magistrate erred when granting defendant's motion for summary judgment that did not address the Court's order for a motion based on the England Reservation doctrine; (2) when not considering plaintiffs' request for discovery made during a status settlement conference (Docket 39); (3) when granting the defendants' motion for summary judgment and disposing of the issues vvithowt plaintiffs commencing the discovery proceedings. All these factors were duly considered by the Magistrate Judge: except as herein amplified, and the Court, after a de novo review, concurs with his recommendation.
Silva failed to present or even make arguments outside of those made in his opposition to the motion for summary judgment. He merely rehashed the arguments he had already raised thereto and simply was unsuccessful providing the Court with any new evidence. Silva failed to establish how the defendants' motion for summary judgment impeded him from properly confronting the evidence, more so when the vehicle of a Fed.R. Civ. P 56(1) was available to him if he considered defendants' actions unjust. Moreover, he did not proffer any further evidence or argumentation to move the Court to conclude in his favor. Finally, plaintiffs did not supply the Court with any new reasoning or case lawexcept the exclusion of the already admitted exhibitsto support their position that they never began their discovery because the Court never issued a case management order in order commence discovery proceedings.
To the contrary, Magistrate Gustavo Gelpí correctly found that defendant's submitted exhibits in support of their statement of uncontested facts were produced as part of the regular course of business activities, were trustworthy, reliable, and/ or relevant. The Magistrate was equally correct when, and after utilizing said admitted exhibits, he concluded that plaintiff Silva Rivera failed to sustain a prima facie case of political discrimination.
The Non-Discriminatory Reasons
In the case at bar, the evidence undoubtedly shows that plaintiff was first suspended from employment for thirty (30) days in 2002 (Exhibit 13, Docket 35). This action was taken after an incident of improper conduct in his working environment and working premises.[3] The determination was never challenged by plaintiff. (Exhibit 5, Docket 35 (letter of charges) and Exhibit 6, Docket 35 (hearing examiner's report)). A second action resulted out of improper conduct incurred in by plaintiff which was also seen by a hearing officer.[4] (Exhibit 11, Docket 35 (letter of charges) and Exhibit 12, Docket 35 (hearing examiner's report)). In a further review of the reports by the hearing officers, *224 the records show the administrative officers declined to provide credibility or weight to Silva's allegations regarding the incident (Exhibit 6 at ¶ 7, p. 9; Exhibit 12 ¶ 6, p. 5). Both hearing officers independently and separately rejected Silva's allegations of political discrimination against him (Exhibit 6 at ¶ 22, p. 7; Exhibit 12 at ¶ 7, p. 5). Furthermore, the record lacks any evidence suggesting even an appearance of impartiality or bias behavior in the hearing officers. Thus, the plaintiffs' procedural Due Process rights were not violated. Both of the agency's administrative decisions became final and were never appealed (Exhibit 14, Docket 35-certification that no appeal was filed).
The Magistrate Judge did not err when granting the motion for summary judgment as to plaintiffs' federal claims.[5] As clearly noted, although in Puerto Rico "[e]ntirely too often, the political party assuming office terminates the employment of public employees who are affiliated with the party going out of power", Sánchez López v. Fuentes Pujols, 375 F.3d 121, 125 (1st Cir.2004), the record is devoid suggesting the above discussed conduct in the instant case. From a Mt. Healthy /Rule 56 perspective, any such speculation would be improper by the Court. Vélez-Rivera, 437 F.3d at 154. In fact, plaintiff in the instant case voluntarily subjected his claims to the hearing examiners at the administrative level, and, upon said examiners reaching the results, plaintiff chose not to exercise his right to appeal before the administrative appellate forum, the Appeals Board of the SIFC, even when plaintiff was made privy to such a right. Docket No. 25, Exhibit VIII (letter from the State Insurance Fund Corporation Administrator, Mr. Nicolas Lopez Pena, informing plaintiff of his decision to terminate his employment pursuant to the hearing examiner's report and advising Mr. Silva of his right to file an appeal, within thirty (30) days, before the Appeals Board of the SIFC). As a result of not filing such an appeal, Mr. Silva permitted that the decision reached by the Administrator to become final and unappealable, thus, precluding this forum from adjudicating his rights arising from the improper conduct and termination due to res judicata/admnistrata. Finally, as for the other defendants being sued in their personal capacity, the same analysis applies, thereby also precluding the Court from addressing those claims pursuant to collateral estoppel limitations.[6]See University of Tennessee v. Elliott, 478 U.S. 788, 797, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) ("it is sound policy to apply principles of issue preclusion to the factfinding of administrative bodies acting in a judicial capacity"); United States v. Utah Construction and Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) ("[w]hen and administrative agency is acting in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose"); Diaz-Seijo v. Fajardo Velez, 397 F.3d 53, 55 (1st Cir.2005) ("[c]ommon-law res judicata doctrine may still apply in section 1983 actions, depending upon a balancing of factors including the interests involved, the power of the agency to decide the claims, and the adequacy of agency procedures") (citing Astoria Fed.Say. & *225 Loan Ass'n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991)).
The Court determines that res judicata/adminsitrata is applicable since plaintiff voluntarily engaged in the administrative procedure, received an unfavorable decision, failed to appeal (both at the administrative and the judicial levels), allowed the decision to become final and, only after the decision became final, makes a collateral attack on them. The decisions were run of the mill disciplinary cases which, unfortunately for plaintiff, bind the Court as a "non-discriminatory", valid reason which is final. The plaintiff further failed to show that other similarly situated employees did not receive the same treatment. The Court "sees no reason not to apply res judicata. The agency procedures, considering appeals, were adequate; further determining just cause in disciplinary cases is within the providence of the administrative body and, moreover, defendant engaged voluntarily the administrative gears. The above described factors favor the application of res judicata.

III
The Court need not to go further for it refuses to write "at length to no other end than to hear its own words resonate." See Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d at 220. "Where as here, a [Magistrate] has produced a first-rate work product, a reviewing tribunal should hesitate to wax longiloquence simply to hear its own words resonate." In re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d at 38. Therefore, the Court ADOPTS the Magistrate's R & R and thus DISMISSES WITH PREJUDICE plaintiffs' federal claims and WITHOUT PREJUDICE all state claims. Henceforth, defendants' motion for summary judgment is GRANTED.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
NOTES
[1]  Plaintiff, however, forgets that the decision may later be challenged before the Appeals Board of the State Insurance Fund Corporation. That decision, in turn, may further be appealed before the Puerto Rico Court of Appeals pursuant to P.R. Laws Ann. tit. 3 § 2171 (local APA law).
[2]  The Court notes that part of plaintiffs' objections question the fact that a memorandum of law regarding whether an England Reservation of federal rights (Docket No. 21) was filed in the instant case and was never decided by the Court. Pursuant to England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), a plaintiff must first file in federal court before filing in state proceedings and then may subsequently advice the state court that it reserves the right to litigate its federal claim in that federal court, thus, allowing the federal court to engage in a Pullman abstention (see Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941)). The Pullman abstention, in turn, permits the federal court to obtain from the state court an interpretation of the state law involved in the case. This procedure is widely known as the England Reserve, allowing for a plaintiff to return to the federal forum for adjudication of the federal question after the state court has decided the issue of state law. See also Casa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252, 266 n. 16 (1st Cir.1993); Granados Navedo v. Acevedo, 752 F.Supp. 523 (D.P.R.1990). Upon review of the record, the Court notes that, when the filing system changed from a paper filing system to the now present electronic filing system (CM/ECF), the request made at docket number 21 was accidentally wrongfully terminated. Notwithstanding, even if the Court had decided the England Reservation issue prior to the motion for summary judgment referral, the Court would have still reached the same conclusion barring the claim under res judicata as it reaches today. The plaintiff in this case can hardly execute an efficient England Reservation as to disciplinary issues already fully litigated within the state administrative system unless he first timely made a federal rights reserve in the federal court. Therefore, the reserve must be timely made in federal court before the state proceedings ensue. Plaintiff has not shown that the reserve was made prior to voluntarily engaging in the administrative disciplinary proceedings. As to making a reserve in the instant case, it is unnecessary since the Court is entertaining the case and decides pursuant to federal law. For the reasons stated in this note, Docket No. 21, as to an England Reserve, is DENIED.
[3]  Silva's improper behavior on March 1, 2002 included his aggressive manner in the parking lot facilities around 7:15 am. He honked the horn of his car to Mr. Gilberto Rivera Cruz (employee of SIFC) and with foul language incited/challenged him to fight. It was necessary to call the local police in order to regain order. The scene was witnessed by private security officers, other fellow employees, and clients of SIFC.
[4]  On October 8, 2002 around 10:30 am, Silva, looking for Mr. Carlos Javier Rivera-Rivera (employee of SIFC), barged into Mr. Alicea's office. When realizing Rivera-Rivera was not in the office, Silva started screaming about the supposed deficiencies of Rivera-Rivera violating the required procedures of internal administrative complaints followed by SIFC. This event was witnessed by other employees and clients of the SIFC.
[5]  Plaintiffs' supplemental claims should likewise be dismissed without prejudice.
[6]  Plaintiff failed to provide any evidence at summary judgment level to the effect that other similarly situated employees incurring in similar misconduct were not disciplined in the same fashion.