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Ramirez v. T&H Lemont, Inc.

United States Court of Appeals, Seventh Circuit

December 30, 2016

Armando Ramirez, Plaintiff-Appellant,
v.
T&H Lemont, Incorporated, Defendant-Appellee.

          Argued November 1, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:12-CV-01279 - James B. Zagel, Judge.

          Before Easterbrook, Rovner, and Sykes, Circuit Judges.

          ROVNER, Circuit Judge.

         Upon 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.

         I.

         Ramirez's 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.

         Three 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.

         At the 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 testimony[1]Two 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.[2] 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.

         Based 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 judge observed:

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. R. 84.

         II.

         Ramirez 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 ...


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