RACE DISCRIMINATION

Ex-employee's case dismissed for inaccurate discovery responses

If you've been unfortunate enough to be hit with an employment lawsuit, you or your HR personnel have probably been stuck with the unenviable task of dealing with an employment lawyer when responding to the employee's discovery, or pretrial fact-finding, requests. Discovery generally comes in the form of interrogatories (questions you must answer under oath) or document production (documents you must make available for the employee to review). It's not a fun assignment, but attention to detail and accuracy are critical ― and failing to comply could lead to significant problems, as the following case demonstrates.

Background

Emma Flippen, an African American woman, worked as a desk clerk for Ashland Arms LLC, which owns and operates the Friendship Inn in downtown Phoenix. Chris Burkhead, who is white, was her immediate supervisor and the motel's manager.

Flippen claimed that Burkhead abused her with racial slurs, was physically aggressive toward her, subjected her to discriminatory working conditions, and fired her in 2004 in retaliation for her complaints about his conduct. She alleged that she was the only black employee at the motel and the only victim of the abusive policies and behavior. She further claimed that she reported the problems to two supervisors, who took no action.

Ashland Arms disputed Flippen's discrimination claims and supplied affidavits from several employees who denied her specific allegations. One coworker who regularly observed interactions between Burkhead and Flippen stated that he never saw any of the alleged abuse. He denied that there was anything unique about Flippen's working conditions and stated that she was treated the same as other employees.

Other affidavits indicated that Flippen never reported any problems to her supervisors. Additionally, a police report relating to a physical altercation between Flippen and Burkhead had absolutely no allegations of racial bias. Furthermore, Ashland Arms indicated that she was terminated for excessive personal use of the phone, interfering with other employees' work, and hosting personal visitors at work, all of which violated company policy.

Flippen's flippant discovery abuse

During the discovery phase of the lawsuit, Ashland Arms submitted a set of written interrogatories to Flippen asking, among other things, whether she had ever been arrested, charged with, or convicted of a crime. Although she answered "no" to that question and verified under penalty of perjury that her answer was accurate, Ashland Arms later discovered that it was false.

In fact, just two years earlier, a warrant was issued for the arrest of "Elmira Jones aka Emma Flippen" to answer an indictment for the theft of government property. The charge arose out of her wrongful collection of social security disability benefits, which she received after suffering a stroke in 1997. She then continued to receive benefits without informing the Social Security Administration that she had returned to work under a different name and social security number.

Flippen was arrested and pleaded guilty to the charge. She was sentenced to probation and ordered to pay restitution. Her plea agreement contained an acknowledgment of guilt and her admission that she wrongfully collected disability checks to supplement her low income. Upon discovering her dishonesty in the pretrial proceedings, Ashland Arms asked the court to punish her by dismissing her case.

Flippen tries to flip facts in her favor

Flippen claimed that at the time she was sentenced, she was 63 years old, only had a third- or fourth-grade education, and had just begun taking literacy classes. As a result, she testified, she was confused about the meaning of legal terms like "interrogatory" and "misdemeanor."

Nevertheless, the court found that Flippen's failure to truthfully answer the interrogatory about her criminal conviction was willful and in bad faith. Only two weeks before answering the interrogatory, she was sentenced to probation for theft of government property. And her only justification for answering "no" to the question was that she thought the word "convicted" referred to incarceration.

The court reasoned that although in isolation it would be plausible that a woman with so little education would confuse the meaning of "convicted" with "incarcerated," Flippen had more than 60 years of life experience that indicated the significance of an arrest would be unmistakable. Moreover, as a direct result of the arrest, she pleaded guilty to theft charges in federal court and accepted responsibility for her actions. Whether or not she was confused about the meaning of the word "convicted," she offered no explanation for why she didn't think she had ever been "arrested" or "charged with a crime."

Under the circumstances, the court believed that Flippen refused to answer the interrogatory affirmatively because it would have led to the discovery of her conviction. That would have called her credibility into question and proven fatal to her case, which rested on her version of events versus other witness testimony. As a result, the court ordered that her complaint be dismissed as a sanction for her discovery misconduct.

Bottom line

This case emphasizes the importance of accuracy when responding to discovery requests. You must communicate openly and honestly with the attorneys who are representing you. Failing to do so could result in an unfavorable ruling against you, regardless of whether you were guilty of the conduct alleged in the lawsuit.

Copyright 2009 M. Lee Smith Publishers LLC

ARIZONA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. For further information about the content of any article in this newsletter, please contact any of the editors.