ARMANDO RAMIREZ, Plaintiff-Appellant, v. T&H LEMONT, INCORPORATED, Defendant-Appellee.
No. 16-1753
United States Court of Appeals, Seventh Circuit
December 30, 2016
Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
In the
United States Court of Appeals
For the Seventh Circuit
No. 16-1753
ARMANDO RAMIREZ,
Plaintiff-Appellant,
v.
T&H LEMONT, INCORPORATED,
Defendant-Appellee.
Northern District of Illinois, Eastern Division.
No. 1:12-CV-01279 — James B. Zagel, Judge.
ARGUED NOVEMBER 1, 2016 — DECIDED DECEMBER 30, 2016
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
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
dismissing the suit with prejudice was an inappropriate
sanction, Ramirez argues, when it otherwise appears he may
have a meritorious claim of employment discrimination.
T&H Lemont asked the district court to dismiss the case
with prejudice pursuant to Federal Rule of Civil Procedure 37
and the court’s inherent authority to sanction misconduct.
When it granted that request and dismissed the case, the
district court did not specify which source of authority it was
relying upon. Either would appear to support the court’s
decision. Rule 37(b)(2)(A)(v) authorizes a range of sanctions,
including the dismissal of a suit, for a party’s failure to comply
with the court’s discovery orders3; and Rule
evasive and incomplete answer in discovery as equivalent to
no answer, and thus a failure to comply with court-ordered
discovery. We have construed the sanctioning power conveyed
by Rule 37 to extend to instances of a party hiding evidence
and lying in his deposition. Negrete v. Nat’l R.R. Passenger Corp.,
547 F.3d 721, 723–24 (7th Cir. 2008). We can think of no reason
why the power would not also extend to a party soliciting a
witness to lie at his court-ordered deposition. See, e.g., Quela v. Payco-Gen. Am. Credits, Inc., No. 99 C 1904, 2000 WL 656681 (N.D. Ill. May 18, 2000), j. aff’d on other grounds, Hakim v. Payco-
Gen. Am. Credits, Inc., 272 F.3d 932 (7th Cir. 2001). Apart from
the discovery rule, a court has the inherent authority to
manage judicial proceedings and to regulate the conduct of
those appearing before it, and pursuant to that authority may
impose appropriate sanctions to penalize and discourage
misconduct. See Chambers v. NASCO, Inc., 501 U.S. 32, 46–50,
111 S. Ct. 2123, 2134–36 (1991). Thus, as we noted in Secrease v.
Western & Southern Life Ins. Co., 800 F.3d 397, 401 (7th Cir.
2015), “[d]ismissal [pursuant to the court’s inherent authority]
can be appropriate when the plaintiff has abused the judicial
process by seeking relief based on information that the plaintiff
knows is false.”
The exercise of either power requires the court to find that
the responsible party acted or failed to act with a degree of
culpability that exceeds simple inadvertence or mistake before
it may choose dismissal as a sanction for discovery violations.
Any sanctions imposed pursuant to the court’s inherent
authority must be premised on a finding that the culpable
party willfully abused the judicial process or otherwise
conducted the litigation in bad faith. See Chambers, 501 U.S. at
50, 111 S. Ct. at 2135–36; Secrease, 800 F.3d at 401; Trade Well
Int’l v. United Cent. Bank, 778 F.3d 620, 626 (7th Cir. 2015)
(negligence is insufficient to support a finding of bad faith).
Rule 37 itself does not specify a requisite mental state, but in
Societe Internacionale pour Participations Industrielles et
Commerciales, S.A. v. Rogers, 357 U.S. 197, 212, 78 S. Ct. 1087,
1096 (1958), the Supreme Court concluded that Rule 37 should
not be construed to authorize dismissal of an action when a
plaintiff’s failure to comply with his discovery obligations was
due to his inability to comply rather than his “willfulness, bad
faith, or any fault.” See also Nat’l Hockey League v. Metro. Hockey
Club, Inc., 427 U.S. 639, 640, 96 S. Ct. 2778, 2779 (1976)
(per curiam) (reaffirming that holding). Fault, in contrast to
wilfulness or bad faith, does not require a showing of intent,
but presumes that the sanctioned party was guilty of
“extraordinarily poor judgment” or “gross negligence” rather
than mere “mistake or carelessness.” Marrocco v. Gen. Motors
Corp., 966 F.2d 220, 224 (7th Cir. 1992); Long v. Steepro, 213 F.3d
983, 987 (7th Cir. 2000) (“[f]ault in this context suggests
objectively unreasonable behavior”); see also e360 Insight, Inc.
v. Spamhaus Project, 658 F.3d 637, 642–43 (7th Cir. 2011)
(distinguishing degree of fault necessary to support dismissal
or default from that necessary to support lesser sanctions).
Our decision in Maynard v. Nygren, 332 F.3d 462, 468 (7th
Cir. 2003), held that clear and convincing evidence is required
in order to dismiss a case as a sanction for discovery-related
misconduct pursuant to Rule 37. Citing a series of cases from
other circuits (most of which
conduct amounting to fraud on the court rather than abuse of
the discovery process) we reasoned that “considering the
severe and punitive nature of dismissal as a discovery
sanction, a court must have clear and convincing evidence of
willfulness, bad faith, or fault before dismissing a case.” Id. By
its own terms, that rationale presumably would apply to a
dismissal imposed pursuant to the court’s inherent authority,
as the severity of the sanction remains the same. See Ty Inc. v.
Softbelly’s, Inc., 517 F.3d 494, 498–99 (7th Cir. 2008).
But we have questioned Maynard’s holding on multiple
occasions. See Wade v. Soo Line R.R. Corp., 500 F.3d 559, 564 (7th
Cir. 2007) (“We doubt that ‘clear and convincing’ evidence is
required” to establish a wilful violation of Rule 37); Ridge
Chrysler Jeep, LLC v. DaimlerChrysler Fin. Servs. Americas LLC,
516 F.3d 623, 625–26 (7th Cir. 2008) (renewing Wade’s criticism
of Maynard); Ty, 517 F.3d at 498–99 (considering appropriate
standard for sanctions imposed for witness tampering
pursuant to court’s inherent authority and noting that
Maynard’s soundness as to standard for Rule 37 sanctions had
been questioned); see also Brown v. Columbia Sussex Corp., 664
F.3d 182, 191 n.8 (7th Cir. 2011) (noting “some discussion” as
to whether finding of wilfulness for purposes of Rule 37
dismissal must be based on clear and convincing evidence, but
finding it unnecessary to address it); Watkins v. Nielsen, 405 F.
App’x 42, 44 (7th Cir. 2010) (nonprecedential decision) (“We
have not resolved definitively whether a finding of wilfulness
must be premised on clear and convincing evidence or simply
a preponderance.”); Negrete, 547 F.3d at 724 n.1 (“[t]here is no
need to resolve the standard here because the evidence was
clear and convincing”). We believe it is time to put an end to
the questions and make clear that a preponderance of the
evidence is sufficient.
Maynard failed to consider “the presumption that the
burden of proof in federal civil cases is proof by a
preponderance of the evidence,” Yi v. Sterling Collision Ctrs.,
Inc., 480 F.3d 505, 507 (7th Cir. 2007), a presumption reinforced
by the Supreme Court’s repeated rejection of more demanding
evidentiary burdens in the civil setting. See, e.g., Halo
Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923, 1934
(2016) (rejecting requirement that egregious patent
infringement behavior warranting enhanced damages under
Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct.
1749, 1758 (2014) (rejecting requirement that patent litigant
must establish by clear and convincing evidence that case is
sufficiently “exceptional” as to warrant fee shifting under
654, 659 (1991) (rejecting clear-and-convincing standard for
non-dischargeability of debts in bankruptcy pursuant to
109 S. Ct. 1775, 1792–93 (1989) (rejecting requirement in Title
VII case that employer with mixed motives prove by clear and
convincing evidence that it would have made same decision
absent discriminatory motive); Herman & MacLean v.
Huddleston, 459 U.S. 375, 387–90, 103 S. Ct. 683, 690–92 (1983)
(rejecting clear-and-convincing standard for civil claims
alleging securities fraud in violation of section 10(b) of the
Securities Exchange Act of 1934,
decisions in Ridge Chrysler Jeep, 516 F.3d at 625–26, and Wade,
500 F.3d at 564, both noted that Maynard omitted any mention
of such precedents
heightened burdens of proof.
As Grogan and Huddleston make clear, unless the governing
statute (or in this case, the rule) specifies a higher burden, or
the Constitution demands a higher burden because of the
nature of the individual interests at stake, proof by a
preponderance of the evidence will suffice. Huddleston, 459 U.S.
at 389, 103 S. Ct. at 691; Grogan, 498 U.S. at 296, 111 S. Ct. at 659.
Rule 37 is silent as to a standard for sanctions; and, of course,
the inherent authority to impose sanctions for litigation
misconduct is judicially derived and specifies no particular
standard of proof. Maynard implies that dismissal of a suit as
a sanction for discovery misconduct implicates rights that
warrant a more demanding standard than a preponderance of
evidence. But it makes no case for why that is so. Huddleston
explains that the standard of proof “serves to allocate the risk
of error between the litigants and to indicate the relative
importance attached to the ultimate decision.” 459 U.S. at 389,
103 S. Ct. at 691 (quoting Addington v. Texas, 441 U.S. 418, 423,
99 S. Ct. 1804, 1808 (1979)). Price Waterhouse adds that
“[e]xceptions to [the preponderance standard in civil cases] are
uncommon, and in fact are ordinarily recognized only when
the government seeks to take unusual coercive action—action
more dramatic than entering an award of money damages or
other conventional relief—against an individual.” 490 U.S. at
253, 109 S. Ct. at 1792. To illustrate that point, Price Waterhouse
and Huddleston collect cases involving the termination of
parental rights, involuntary commitment, deportation, and
denaturalization as examples of proceedings in which
particularly important individual interests are at stake, such
that the Constitution warrants a higher burden of proof
(namely, clear and convincing evidence). Id., 109 S. Ct. at 1792;
Huddleston, 459 U.S. at 389, 103 S. Ct. at 691; see also Liquid Air
Corp. v. Rogers, 834 F.2d 1297, 1302–03 (7th Cir. 1987). “By
contrast,” Huddleston proceeds, the “imposition of even severe
civil sanctions that do not implicate such interests has been
permitted after proof by a preponderance of the evidence.” Id.
at 389–90, 103 S. Ct. at 691 (citing United States v. Regan, 232
U.S. 37, 48–49, 34 S. Ct. 213, 217 (1914) (proof by
preponderance of evidence suffices in civil suits that entail
proof of acts exposing a party to criminal prosecution)).
The interests implicated by the dismissal of a suit as a
sanction for misconduct occurring in civil litigation (including
discovery) are not so important as to demand that the facts
underlying the dismissal be established by clear and
convincing evidence. Certainly a dismissal of the suit with
prejudice constitutes a severe sanction; but as Huddleston
indicates, that alone does not warrant a standard of proof more
burdensome than a preponderance of the evidence. The
preponderance standard allocates the risk of error more or less
equally between Ramirez and T&H Lemont as parties to the
suit. See Huddleston, 459 U.S. at 390, 103 S. Ct. at 691 (citing
Addington, 441 U.S. at 423, 99 S. Ct. at 1808); Yi, 480 F.3d at 507.
As in most civil suits between private parties, what is at stake
in this suit is money (Ramirez did not ask for equitable relief),
and thus a factual error in the determination of the merits of
the case exposes both parties to the same type and magnitude
of risk—the loss or gain of the damages that Ramirez seeks.
The same is true with respect to the imposition of sanctions.
Nothing about the nature of sanctions in a civil case places one
party or the other in a unique position: either party may be
sanctioned for its misconduct, and either might lose the right
to present its case if the court decides to
judgment as a sanction, as occurred here. (Rule 37(b)(2)(A)(v)
and (vi) authorizes both the dismissal of the action and the
entry of a default judgment against the offending plaintiff or
defendant; and the court’s inherent power to sanction
misconduct is likewise symmetrical, see Secrease, 800 F.3d at
401.) Even if the court decides to impose a lesser, issue-related
sanction, such as excluding the testimony of a particular
witness (see Rule 37(b)(2)(A)(ii)), the sanction may so hobble
the sanctioned party that the result of the case is foreordained.
At all events, the sanctioned party does not stand to forfeit
more than he might have lost were the case resolved against
him on the merits. Ramirez has been deprived of the
opportunity to vindicate his rights under Title VII, and those
rights are highly important, we agree. But, important as they
are, the loss of the opportunity to vindicate those rights in a
civil suit against one’s employer is not of the same
constitutional magnitude as the liberty interests at stake in
proceedings involving the termination of parental rights or
involuntary commitment to an institution for psychiatric care,
for example. Cf. Addington, 441 U.S. at 427, 99 S. Ct. at 1810
(“The individual [named in a civil commitment petition]
should not be asked to share equally with society the risk of
error when the possible injury to the individual is significantly
greater than any possible harm to the state.”).
The gravity of dismissing a suit with prejudice based on
litigation misconduct certainly warrants the careful exercise of
the court’s discretion. But that is a matter distinct from the
standard of proof by which the underlying facts must be
proven. See Ty, 517 F.3d at 499–500. Given that the facts bearing
on the merits of a Title VII suit need only be proven by a
preponderance of the evidence, see Price Waterhouse, 490 U.S. at
253, 109 S. Ct. at 1792, we see no reason why the facts bearing
on whether sanctionable misconduct has occurred during the
course of such a suit that warrants the entry of judgment must
be established by clear and convincing evidence. Huddleston
recognizes that any standard other than a preponderance of the
evidence “expresses a preference for one side’s interests.” 459
U.S. at 390, 103 S. Ct. at 691. Like any other civil litigant,
Ramirez is obliged under Rule 37 to comply with the court’s
discovery orders and, more broadly, to comport himself
appropriately before the court and refrain from attempts to
deceive his opponent and to perpetrate a fraud on the court.
His adversary, T&H Lemont, shares the same obligations and
faces the same penalties should it ignore them. The
preponderance standard appropriately reflects the mutuality
of the parties’ obligations; the clear-and-convincing standard,
by contrast, would reflect an unwarranted preference for one
party over the other.
We recognize that our decision places us into conflict with
the decisions of certain other circuits, a sampling of which we
cited and followed in Maynard. 332 F.3d at 468 (collecting
cases). The case for the clear and convincing standard adopted
in those cases is best articulated by Shepherd v. Am. Broadcasting
Cos., 62 F.3d 1469, 1476–78 (D.C. Cir. 1995), which concluded
that a preponderance of evidence was insufficient to support
a dismissal of the case pursuant to the court’s inherent
authority as a sanction for discovery-related misconduct.
Focusing on the punitive aspect of inherent-authority
sanctions, the court likened the sanction of dismissal or default
judgment to civil contempt, a sanction designed to coerce a
recalcitrant litigant into compliance with the court’s orders,
and reasoned that the two types of sanctions should be
governed by the same evidentiary standard. Id. at 1477. It is
true enough that there is “[a] large body of case law
that civil contempt must be proved by clear and convincing
evidence.” S.E.C. v. First Choice Mgmt. Servs., Inc., 678 F.3d 538,
544 (7th Cir. 2012) (collecting cases). But we have pointed out
that this very line of authority itself is “in tension with the
Supreme Court’s insistence on a presumption in favor of the
less onerous standard of preponderance of the evidence in
federal civil cases.” Id.
Shepherd added that a heightened standard is appropriate
for inherent-power sanctions because the predicate misconduct
for such sanctions typically involves some type of fraudulent
or quasi-criminal misconduct. 62 F.3d at 1477. Yet the Supreme
Court has dispelled the notion that a finding of fraud in civil
litigation invariably demands clear and convincing evidence:
Huddleston adopted the preponderance standard for civil
claims of securities fraud, 459 U.S. at 388–90, 103 S. Ct. at
690–92, and Grogan held that a creditor need only show by a
preponderance of evidence that a claim was incurred through
fraud in order to establish that the claim is not dischargeable
in bankruptcy, 498 U.S. at 286–87, 111 S. Ct. at 659. Both
decisions acknowledged the very tradition of requiring that
fraud be proved by clear and convincing evidence that
Shepherd invoked, see Huddleston, 549 U.S. at 388–89, 103 S. Ct.
at 690–91; Grogan, 498 U.S. at 288, 111 S. Ct. at 660, and yet both
concluded that the particular interests implicated by a finding
of fraud in those cases were not sufficient to overcome the
presumption that the preponderance standard will govern civil
litigation.4 See also Liquid Air, 834 F.2d at 1302-03 (rejecting clear
and convincing standard for civil claims under Racketeer
Influenced and Corrupt Organizations Act,
& 1964, notwithstanding fact that certain predicate acts of
racketeering involve fraud).
What is patently clear from the Court’s decisions in
Huddleston and Grogan is that labels matter less than substance.
Simply because a sanction is premised on conduct that can be
described as fraudulent does not mean that the court must by
rote adopt an evidentiary standard historically associated with
fraud claims. The Supreme Court instead directs us to focus on
the pragmatic implications of the sanctions decision and to
consider whether they transform a civil case that is otherwise
about money into one that may implicate much more
substantial interests. In that vein, our decision in Ty recognized
the pragmatic differences between a civil merits judgment
deeming a party guilty of fraud and a sanction imposed by the
court for a fraud on the court committed in the course of the
litigation. 517 F.3d at 499. We have, in this case, already
explained at some length why the interests at stake in the
court’s decision to dismiss the suit as a sanction for witness
tampering are not sufficient to overcome the presumption that
the relevant facts will be determined by a preponderance of the
evidence. And as with use of the term “fraud,” affixing the
“quasi-criminal” label to the sanctioned conduct does not alter
the calculus. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 491,
105 S. Ct. 3275, 3282 (1985) (“In a number of settings, conduct
that can be punished as criminal only upon proof beyond a
reasonable doubt will support civil sanctions under a
preponderance standard.”) (collecting cases); see also
Huddleston, 459 U.S. at 390, 103 S. Ct. at 691 (citing Regan, 232
U.S. at 48-49, 34 S. Ct. at 217, for the proposition that, in civil
litigation, preponderance is sufficient as proof of acts that
expose a party to criminal prosecution); Liquid Air, 834 F.2d at
1302-03 (civil RICO claims are subject to proof by
preponderance of evidence notwithstanding that predicate acts
of racketeering are criminal in nature: “A civil RICO defendant
does not face imprisonment, nor does the defendant suffer the
collateral consequences associated with conviction of a
criminal offense.”). Regardless of whether the litigation
misconduct at issue is characterized by fraud, bad faith, fault,
or quasi-criminal misconduct, the case remains a civil suit
between private litigants, and what is at stake for Ramirez is
the loss of the opportunity to win money damages from his
former employer. See Kunkel v. Com’r of Internal Revenue, 821
F.3d 908, 910 (7th Cir. 2016) (Supreme Court’s jurisprudence
indicates that “in civil litigation over money, the appropriate
standard is the preponderance of the evidence”); Liquid Air, 834
F.2d at 1302 (clear and convincing standard “is used in civil
cases in which more is at stake than mere loss of money”).
Because our holding today conflicts with our decision in
Maynard and with like decisions of other circuits as to the
applicable evidentiary standard, this opinion was circulated to
all active judges pursuant to Circuit Rule 40(e). No judge in
active service wished to hear this case en banc. Our decision in
Maynard is overruled in that respect. In civil cases, the facts
underlying a district court’s decision to dismiss the suit or
enter a default judgment as a sanction under Rule 37 or the
court’s inherent authority need only be established by a
preponderance of the evidence.
The evidence presented to the district court was sufficient
to support a finding by the preponderance of the evidence that
Ramirez engaged in witness tampering. Villagrana testified
that Ramirez offered him money in exchange for favorable
testimony, that he accepted the offer due to a variety of
financial hardships he faced, that he discussed with Ramirez
(and the other two witnesses) what his testimony would be,
that the testimony he gave in exchange for money Ramirez
offered was false, and that, in truth, he had never observed any
discrimination against Ramirez while in T&H Lemont’s
employ. The district court obviously credited Villagrana’s
testimony, and it is worth noting that no other witness
(including Ramirez, who chose not to testify) disputed his
account. It is true that Hernandez denied that he was bribed,
but that does not undercut the notion that Villagrana was.
And, of course, the district court indicated that portions of
Hernandez’s testimony were questionable. At the same time,
Hernandez did corroborate Villagrana’s testimony in part by
confirming that the three witnesses had met and discussed
their testimony with Ramirez in advance of their depositions.
It is also true that, according to Luis, Villagrana offered to
testify for T&H Lemont if he could get his job back. That
testimony raises the possibility that Villagrana was a
mercenary witness whose testimony was for sale to the highest
bidder (he himself acknowledged that he agreed to testify for
Ramirez because he was in dire straits financially), and it
permitted, but did not compel, the district court to discredit his
testimony. But the court chose instead to credit Villagrana, and
we have no ground on which to second-guess its credibility
determination.5 Having credited Villagrana’s testimony that he
was offered money
court was on solid ground in finding by a preponderance of
the evidence that Ramirez had engaged in witness tampering.
In light of that finding, the court certainly did not abuse its
discretion in dismissing the case with prejudice rather than
imposing a lesser sanction. The court considered the
possibility—indeed, it expressly assumed—that Ramirez may
have had a meritorious case of employment discrimination,
and that dismissal would foreclose Ramirez from pursuing
relief for that injury. See R. 73 at 12-14. But witness tampering
is among the most grave abuses of the judicial process, and as
such it warrants a substantial sanction. See, e.g., Secrease, 800
F.3d at 402
(“falsifying evidence to secure a court victory
undermines the most basic foundations of our judicial
system”); Ty, 517 F.3d at 498 (“[t]rying to improperly influence
a witness is fraud on the court and on the opposing party”).
Crediting Villagrana’s account, Ramirez made a calculated
effort to bolster his floundering case by offering payment to a
witness to support his allegations of employment
discrimination when the witness had, in fact, observed no such
discrimination. Dismissing the case with prejudice is an
entirely reasonable response to such a deliberate attempt to
deceive the court.
III.
Finding no clear error in the district court’s finding that
Ramirez engaged in witness tampering and no abuse of
discretion in the court’s decision to dismiss the case with
prejudice as a sanction, we AFFIRM the judgment.