Falsifying documents in litigation is, of course, strictly prohibited and subject to sanctions. In the recent case of Amfosakyi v. Frito Lay, No. 12-2037 (Sept. 7, 2012), the U.S. Court of Appeals for the Third Circuit affirmed dismissal as a sanction for such improper conduct and also noted that untruthful testimony could be handled in the same manner.
Amfosakyi lies about absence
Samuel Amfosakyi, a U.S. citizen born in Ghana, began working for Frito Lay in February 2005. During his employment, he was repeatedly cited for poor attendance and had, at one point, progressed to the final step of the company’s progressive discipline process.
On July 4, 2009, Amfosakyi arrived for his overnight shift at 7 p.m. but then left the plant from approximately 9 p.m. until 1:30 a.m. He did not clock out and when he returned to the facility, he lied to his supervisor, stating that he had been at work all night except for a 30-minute lunch break. Although directed to sign a statement admitting his absence from the workplace, Amfosakyi refused and, instead, agreed to sign a statement admitting only that he had been away from work from 10:30 to 11:05 p.m. Amfosakyi was sent home and, following an investigation, was terminated a few days later.
Amfosakyi brought suit against Frito Lay, claiming that he had been discriminated against on the basis of his race and national origin. The key allegation in his complaint was that he had left work on July 4 because of his son’s medical emergency and that he had previously notified the company of his son’s special needs. Significantly, during discovery, Amfosakyi produced a copy of an April 30, 2009, letter to the company representative, Danielle Fritts, describing the issues with his son.
No record of letter
Frito Lay, however, had no record of having received the letter. Moreover, Fritts was, on April 30, not yet married and she was using her maiden name, Schultz. At his deposition, Amfosakyi confirmed that he had written and submitted the letter on the date set forth. Frito Lay asked for a forensic examination of Amfosakyi’s computer and, after many excuses and delays, the audit was conducted.
Not surprisingly, the computer examination revealed that the letter was created on August 1, 2010, 15 months after it was dated. In responding to Frito Lay’s motion for sanctions, Amfosakyi claimed that he had actually sent a handwritten letter to Fritts and then copied it into his computer on a later date. He also asserted that he had used Fritts’ married name because he knew of her marriage plans.
In a separate motion, Frito Lay sought summary judgment based on the lack of evidence. Amfosakyi responded by pointing to evidence that a white employee, George Rye, had lied to the company about the circumstances of a workplace injury but was not terminated.
Sanctions for falsification
Both of Frito Lay’s motions were granted by the U.S. District Court for the Middle District of Pennsylvania following a report and recommendation of the magistrate judge. With respect to the motion for summary judgment, the court found that there was no evidence that the company had considered Amfosakyi’s race or national origin on any level and that Rye was not similarly situated based on the facts presented and the nature of Amfosakyi’s deceitfulness. In light of the decision on the motion for summary judgment, the court noted that the motion for sanctions was effectively moot. Nevertheless, Amfosakyi’s behavior was so egregious that the requested sanctions were considered and granted as well. Amfosakyi appealed.
The Third Circuit began with the motion for summary judgment, which it affirmed in short order. The appellate court found that, unlike the investigation into Amfosakyi’s excuses for his behavior, which were found conclusively to be false, the investigation into Rye’s truthfulness was inconclusive. As such, there could be no finding that Rye had “engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish his conduct or the employer’s treatment of him.”
Six factors when dismissal is considered
In considering the motion for sanctions, the court applied the factors for consideration of dismissal as a sanction for discovery abuses, first set forth in Poulis v. State Farm Fire & Casualty, 747 F.2d 863 (3d Cir. 1984). Poulis set forth six factors to be considered by the court, including: (1) the party’s personal responsibility for the behavior; (2) the prejudice to the opposing party; (3) a history of dilatoriness; (4) whether the behavior was willful or in bad faith; (5) whether other sanctions would be effective; and (6) the merits of the underlying claim or defense. Significantly, Poulis can apply “so long as most” of the factors weigh in favor of dismissal.
In this case, the court found that the record established clearly that Amfosakyi had falsified a document and then testified falsely about its creation and effect. The court held that “a litigant who provides false documentation and/or untruthful testimony during the course of discovery in an improper attempt to influence the outcome of the civil action may be prohibited by the district court … from proceeding with the civil action.”
While the court’s Poulis analysis is straightforward and addresses a rather ham-handed issue of document falsification, the language used by the court could be read as extending possible sanctions in a broader way by including possible sanctions for “untruthful testimony.” While most cases turn on the interpretation of statements and the mindset of decision-makers, many harassment cases include an allegation of statements or behaviors that must be believed or not. That is, liability may turn on whether the behavior occurred or not. If the evidence is overwhelming that one party has falsely testified to the behavior in question (either affirming or denying that it occurred), the Amfosakyi language may provide a basis for sanctions for the opposing party. •
Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.