Witness tampering was proper reason to dismiss discrimination suit

By Joy Waltemath

By Harold S. Berman J.D.

A former employee’s employment discrimination case was properly dismissed with prejudice after a federal district court found he engaged in witness tampering, ruled the Seventh Circuit. Overruling its 2003 decision requiring a court to find clear and convincing evidence in order to dismiss a case as a sanction for discovery-related misconduct, the appeals court held that only a lesser finding based on a preponderance of the evidence was required. Here, a preponderance of the evidence supported the district court’s determination that the employee offered money to three former coworkers in exchange for their false testimony on his behalf (Ramirez v. T&H Lemont, Inc., December 30, 2016, Rovner, I.).

Sudden appearance of three witnesses. The employee, who was Hispanic and had been born in Mexico, alleged that his former employer subjected him to discriminatory working conditions and a hostile work environment based on his national origin, and fired him in retaliation for reporting the harassment. Nearly three years into the litigation, the employee and his counsel had located no witnesses to corroborate his allegations, and his counsel asked for leave to withdraw. The employee then suddenly located three witnesses, all all former coworkers. The employee’s counsel then abandoned his motion to withdraw, and the three witnesses were deposed.

Witness testimony unravels. Each witness testified almost identically that two supervisors had purposely made things difficult for the employee, and that they each witnessed one of the supervisors refer to the employee as a burro or donkey. Three months later, as defense counsel sought to re-depose one of the coworkers, that witness texted the employee’s counsel, asking for a letter stating “what percent” he would receive when the case settled. The employee’s counsel reported the text to defense counsel. That same day, the coworker contacted one of the employer’s current employees, informing him that he and the other two witnesses were no longer supporting the employee, and that he was willing to testify for the employer if he could get his old job back.

Witnesses paid for testimony. The district court then convened an evidentiary hearing, and the former coworker who had sent the text gave testimony that the employee offered him money in exchange for his favorable testimony, which he accepted because he was in urgent need of money. He also testified that he had not observed the harassment about which the employee complained, and that all three witnesses met with the employee before they were deposed and discussed using the word donkey. He further testified that he had testified falsely at his deposition. The court deemed some of the other two witness’ testimony not credible, while other testimony corroborated the testimony of the first witness.

Case dismissed. Ultimately, the district court found that the employee had engaged in witness tampering. It dismissed his case with prejudice as a sanction. The employee appealed, arguing that the record did not support a finding by clear and convincing evidence that he engaged in witness tampering, and the court abused its discretion by dismissing the case with prejudice. He cited conflicts in the witness’ testimony, and argued that dismissing the case with prejudice was an inappropriate sanction when it otherwise appeared he might have a meritorious claim.

The Seventh Circuit affirmed, finding no reason why a court’s sanctioning power should not extend to a party soliciting a witness to lie at his court-ordered deposition.

Clear and convincing evidence not required. Before choosing dismissal as a sanction for discovery violations, a court must find that the culpable party willfully abused the judicial process and otherwise conducted the litigation in bad faith. Here, the Seventh Circuit overturned its 2003 decision in Maynard v. Nygren, which had held that a court in a civil case must find “clear and convincing” evidence of the misconduct. Rather, unless in a situation where the Constitution or a governing statute or rule mandates a higher standard, a finding based on “the preponderance of the evidence” was sufficient ruled the appellate court.

Evidence sufficient to warrant dismissal with prejudice. With that standard in mind, the appeals court found that the evidence presented to the district court was sufficient to support a finding by the preponderance of the evidence that the employee engaged in witness tampering. One of the witnesses testified that the employee offered him money in exchange for favorable testimony, that he accepted the offer, that he discussed in advance with the employee and the other witnesses what his testimony would be, and that the testimony he gave as false. Portions of that witness’ testimony were corroborated by the other witnesses. The district court chose to credit the witness’ testimony and the appeals court had no ground to question the district court’s credibility determination.

No abuse of discretion. Because the district court had properly found evidence of witness tampering, it did not abuse its discretion in dismissing the case with prejudice rather than imposing a lesser sanction. The district court had considered that the employee might have a meritorious employment discrimination case, and that dismissal would foreclose him from seeking relief for his injury. However, witness tampering is one of the most serious abuses of the judicial process, and so warranted a substantial sanction. Dismissing the case was a reasonable response to the employee’s deliberate attempt to deceive the court.

Source:: Employment Law Daily Newsfeed