November 1, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:12-CV-01279 -
James B. Zagel, Judge.
Easterbrook, Rovner, and Sykes, Circuit Judges.
ROVNER, Circuit Judge.
finding that plaintiff Armando Ramirez had offered a witness
money in exchange for his favorable testimony, the district
court dismissed Ramirez's suit with prejudice. Ramirez
appeals, contending that the district court erred in finding
that he engaged in witness tampering and that it abused its
discretion in dismissing the case with prejudice as a
sanction. We affirm.
amended complaint alleges that his former employer, T&H
Lemont, Inc., subjected him to discriminatory working
conditions and a hostile work environment based on his
national original (Ramirez is Hispanic and was born in
Mexico) and then fired him in retaliation for reporting the
harassment, in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-2(a) & -3(a). Nearly
three years into the litigation, with discovery essentially
concluded Ramirez and his counsel had not located any
witnesses to corroborate his allegations, which were
vigorously denied by the defendant, and his attorney was
seeking leave to withdraw from the case. But at the eleventh
hour, Ramirez located three witnesses, all former T&H
Lemont employees who had worked with Ramirez in the
company's machine shop, willing to give testimony on his
behalf. Ramirez's counsel abandoned his motion to
withdraw, the district court ordered that the new witnesses
be deposed, and all three of those witnesses -Francisco
Hernandez, Miguel Velasquez, and Santiago Villagrana-were
serially deposed on the same day. Each testified in substance
that he had observed ways in which two T&H Lemont
managerial and supervisory employees had purposely made life
difficult for Ramirez at the firm; all three testified that
they had witnessed one of those supervisors refer to Ramirez
as a burro or donkey on one or more occasions.
months after these depositions took place, as defense counsel
was seeking to re-depose Villagrana, Villagrana sent a text
to Ramirez's counsel asking for a letter "saying
what percent I will receive when the case is settled."
R. 59-1 at 2. Ramirez's counsel reported the text to
defense counsel. As it turned out, on the same day that
Villagrana texted Ramirez's lawyer, he also contacted a
T&H Lemont employee informing him that he and the other
two witnesses were no longer supporting Ramirez and that he
(Villagrana) was willing to testify for T&H Lemont if he
could get his old job back.
defendant's request, the district court convened an
evidentiary hearing in order to determine whether any witness
had provided false deposition testimony in the case and, if
so, whether anyone else was involved in that false
testimonyTwo witnesses testified in person at that
hearing: Oberlin Luis, the T&H Lemont employee whom
Villagrana had contacted to report that he was willing to
testify on the company's behalf; and Francisco Hernandez,
one of the other witnesses who had given deposition testimony
supporting Ramirez. A third witness, Villagrana, was
subsequently deposed in California, where he was then living.
His deposition was videotaped, and a transcript of his
testimony was submitted to the court after the
hearing. Villagrana testified in substance that
Ramirez had offered him money in exchange for his favorable
testimony; that he accepted the offer because he was in
urgent need of money; that he had not observed the harassment
of which Ramirez was complaining; that all three of the
belatedly-located witnesses had met with Ramirez before they
were deposed in May and discussed using the word
"donkey"; and that he had testified falsely at his
deposition in exchange for the money Ramirez had offered him.
Hernandez denied that anyone had offered him money in
exchange for his deposition testimony. He did acknowledge,
however, that he and the other two witnesses had met with
Ramirez twice before they were deposed. During the first
meeting, Ramirez had asked them whether they would be willing
to testify on his behalf, and during both meetings, they had
discussed what their testimony would be. There were certain
inconsistencies in Hernandez's testimony on other points
that would lead the district court to observe that his
credibility appeared "questionable" at times. App.
102. Finally, Luis recounted the offer he had received from
Villagrana to testify on the company's behalf.
on this testimony, the district court, on T&H
Lemont's motion, dismissed the case with prejudice. After
summarizing the testimony presented to him, the district
Throughout the evidentiary hearing, counsel for Plaintiff has
been forthcoming and cooperative-I am convinced that he
played no role in Plaintiff's misconduct. Because I have
found clear and convincing evidence of witness tampering, I
am dismissing this case with prejudice to sanction Plaintiff.
R. 80 at 2. The court later denied Ramirez's request,
pursuant to Fed.R.Civ.P. 59(e), to reconsider the dismissal.
contends on appeal that the record does not support a finding
by clear and convincing evidence that he engaged in witness
tampering and that the district court abused its discretion
in dismissing the case with prejudice as a sanction for that
misconduct. Villagrana's testimony that Ramirez had
offered him money in exchange for his testimony was not
credible, Ramirez contends, in view of Luis's testimony
that Villagrana had offered to testify for the defendant if
he could get his job back and the conflicts between
Villagrana's testimony and Hernandez's testimony. And