Takeaway: Manipulating or falsifying evidence can result in severe penalties for an employee, including dismissal of claims and sanctions.
An employee’s sexual harassment claims based on forged text messages were dismissed, and the plaintiff was properly sanctioned over false testimony, the 2nd U.S. Circuit Court of Appeals recently ruled.
The plaintiff, a registered nurse, was employed in the emergency department of the Children’s Hospital at Montefiore Medical Center in New York City from 2014 to 2018. She was fired in January 2018 for violating the hospital’s drug and alcohol policy.
She responded by filing a federal lawsuit alleging gender discrimination, hostile work environment, retaliation and tort claims against the hospital, her supervisor and a co-worker. She claimed that her supervisor sexually harassed her. When she objected to his conduct, he and a co-worker allegedly retaliated and caused her firing.
Montefiore moved for summary judgment on several of the plaintiff’s claims related to her termination. The district court granted that motion in part. It denied summary judgment, however, as to many of the sexual harassment claims relating to her supervisor.
Montefiore moved to dismiss the plaintiff’s remaining claims and sought sanctions against her and her counsel. Montefiore alleged that she forged the principal evidence for her harassment claims: a PDF file containing an image of three sexually suggestive text messages from her supervisor that referred to her as “hot” and asked her to wear a G-string that he gave her and send him a picture. The plaintiff produced the document in May 2020.
At the plaintiff’s October 2020 deposition, she testified that she received the texts on an iPhone 5 that had severe screen cracks and an ink bleed. She testified that this damage prevented her from taking a screenshot on the iPhone 5, so she instead took a photograph of the messages with her new iPhone X. She testified that she gave the iPhone 5 to her attorney with the passcode. Montefiore’s discovery vendor could not unlock the iPhone 5 with the provided passcode. In a later declaration, the plaintiff stated that she had traded in her iPhone X when it began to malfunction.
Montefiore argued that the plaintiff committed perjury by falsely testifying at her deposition and that she spoliated evidence by failing to preserve text messages in their original format and by disposing of her iPhone X. Montefiore also sought sanctions against her attorney and his law firm, arguing that the plaintiff’s counsel should have realized that the document was a forgery and taken remedial measures. The district court ordered the parties to submit expert reports and scheduled an evidentiary hearing.
At the hearing, the court found that the plaintiff fabricated the texts, gave false testimony about their production and spoliated evidence to conceal the fabrication.
The court found that characteristics of the document were inconsistent with the plaintiff’s testimony. The image of the text messages did not show a cracked screen or a screen with an ink bleed. The court accepted Montefiore’s expert’s testimony that the PDF file did not have the metadata associated with an iPhone X photograph and that the image did not depict text messages as they would appear on an iPhone 5, or any iPhone, due to differences in the appearance of icons and contact information, font size and style, and emoji design.
Based on these findings, the district court dismissed the plaintiff’s remaining claims and imposed a monetary sanction jointly and severally on the plaintiff, her attorney and the law firm, a sanction consisting of Montefiore’s attorney fees, costs and expenses in the amount of $157,026. The plaintiff and her counsel appealed the decision to the 2nd Circuit.
The 2nd Circuit found sufficient evidence to support the determination that the texts were fabricated and that the plaintiff spoliated evidence. It upheld the dismissal of her claims and the award of sanctions against her, including the attorney fee amount awarded.
The 2nd Circuit further found, however, that the district court had not made a separate finding of bad faith on the part of the plaintiff’s attorney or his law firm. While such a finding could be implied by its decision, the court reversed the judgment against the plaintiff’s attorney and the law firm and remanded that portion of decision for further consideration by the district court.
Rossbach v. Montefiore Medical Center, 2nd Cir., No. 21-2084 (Aug. 28, 2023).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
