Oh, what a tangled web we weave, when first we practice to deceive! –Walter Scott
Bill Pilchak – 8/12/14
We started this series as a public service to our friends and relatives and those of our clients who call us for a reference to a plaintiff-side employment lawyer and to the population in general thinking of suing…especially if they are thinking of suing our clients.
Today’s topic is the nearly-inevitable prospect that as a plaintiff in employment litigation, you will end up lying under oath. It’s better that you realize now that the awful moment is approaching, rather than on the eve of your deposition.
Let me explain how it happens. You visit a lawyer, outraged because you have been let go. You think your separation is unfair because your side of the story hasn’t been considered. Or, maybe the boss is: 1) a jerk, 2) unsympathetic to your problem, 3) proceeding on mistaken facts or beliefs, 4) feels your chaotic life episodes are not a good excuse for your many absences; or 5) just doesn’t like you. Maybe this job is like several others that ended in a dispute with supervision. The lawyer tells you that because your employment is “at will,” you cannot contest the wisdom or general fairness of the discharge. Rather, she pulls out a menu of about 43 causes of action, most of which involve discrimination, harassment or retaliation on the basis of race, sex, age, national origin, disability, or whistleblower status. To sue, you have to fit your case into one of those legal theories. If you can’t fit your scenario into a theory, you have no case.
Going through the menu, the attorney decides if your situation can be recast as involving some protected status. Sometimes choosing a legal theory is relatively easy, if you are of a minority race or obvious ethnicity. Other times, it requires a stretch. We’ve seen employees claim the ribbing they took after disclosing their penile enlargement surgery (no pun intended) was actually national origin harassment because they were Canadian. We’ve seen employees named “Smith” (or something equally Anglo-Saxon) attempt to assert ethnic discrimination because their mother was Lebanese. One of the last of the industrial wood model makers had to contend that he was not laid-off because no one uses wood models anymore and because he had failed to learn the new technology, but because his employer somehow, magically discerned that he was “about to” to complain about a safety issue he once observed in the shop…months ago.
In other words, to make a case at the outset, the lawyer has to pound a square peg into a round hole.
When you leave the lawyer’s office, you are on the path to suing over an issue that was not even in mind when you arrived. You will spend the next days and weeks trying to remember comments that relate to race, age, ethnicity, etc., so you can now present them as important, when they earlier passed virtually without notice. Your need to “spin” the scenario in racial, gender, ethnic or other terms, when that had not been an issue previously, is the first subtle form of lying. From our standpoint, you are “spinning” something else: a tangled web that will almost certainly ensnare you and make you the prey not the predator.
The “square peg in a round hole” analogy mentioned above is not quite accurate. A plaintiff’s task is not as elementary as putting a discriminatory spin on the facts. Rather, every plaintiff must steer through a gauntlet of defenses. For example, being let go for an unprecedented act usually spells defeat because a plaintiff must usually show that others of a different race, age, etc. were treated differently. So, a plaintiff must contort facts to claim earlier episodes involving others were “nearly identical” to their situation. Or, because each plaintiff has a legal obligation to “mitigate damages” by diligently seeking substitute employment, but cannot claim wage loss damages if they do find a job, most plaintiffs have to lie about their job search. Or, because an employee experiencing harassment is generally obligated to use a company’s harassment complaint procedure, if the chosen legal theory is “harassment,” plaintiffs sometimes have to invent facts that place them within one of the narrow exceptions that excuse the need for complaints. Every case might involve six or seven defenses. Now, you have to avoid the truth on seven or eight fronts, or your case will be dismissed. The square peg in a round hole has just become a star-shaped peg. Moreover, this second hurdle traps not just those who belatedly claim discrimination, etc., but even those who felt that way from the beginning, because the myriad of defenses apply to “real” as well as invented cases of discrimination.
The fun begins once you arrive for deposition and testify under oath. Even if you haven’t decided to blatantly lie (as some do, as indicated below), you cannot “undo” the facts. Modern society teaches moral relativism, where there is no right or wrong or black and white and everything is a shade of gray. But the truth is the truth, and while memories may fade, the truth doesn’t change. Our attorneys have spent decades studying investigative techniques, business processes and how employees react in certain situations. We are professional bloodhounds, sniffing out the truth. Facts do not occur in a vacuum. If something occurred as you say, there should be consequences. If a rock is thrown into a pond, there will be ripples. For example, unless you believed at the time that you were subject to discrimination, your past conduct will be inconsistent with your present contentions. Let’s say that after discerning that you are on the verge of separation for performance your attorney has decided you should walk off the job and claim you were harassed. If that thought did not occur until you visited the lawyer, your company e-mails, texts or social media posts will usually be inconsistent with those claims. In a recent case, a plaintiff’s e-mail to a former colleague leaving the company who was later recast as a chief harasser showed their actual, friendly relationship, with the plaintiff promising to keep in touch as the supposed harasser moved on to another job. Another claimant’s texts showed her very blatantly flirting on multiple occasions with the person she later alleged to have been a sexual harasser. Another’s e-mails to friends outside the company predicted his future would dim because of a change in management and corporate politics, not the whistle-blower issue he belatedly sought to raise.
Even where electronic messages do not survive, you will be surprised at the independent witnesses and former employees that we track down or who step forth to dispute your claim. If you failed to discuss your belief that you were being harassed because of your religion with a close colleague of the same religion, that stands out. If you never mentioned the subject of discrimination to the union officials who spent weeks or months disputing your discharge, that too is inconsistent. You would be surprised at the array of individuals who have blown up plaintiffs’ cases by revealing the truth when interviewed: Ex-boyfriends and girlfriends, former spouses of your best friends, landlords, neighbors, police officers, union officials, business partners, former bosses and co-workers at prior jobs. You see, a fundamental principle underlying basic human greed is that nobody wants to see you get rich from a verdict – especially on the basis of lies.
Of course, as alluded to in prior BLawg posts, some plaintiffs flagrantly lie. We’ve seen some doozies. “No, I haven’t worked for nor do I know anyone who owns or operates a competing staffing company” as the employer had suggested in the termination letter as a reason for the plaintiff’s frequent and unexplained absences – then poof, we find checks deposited in the plaintiff’s account from a staffing company affiliated with his fiancé-now-wife and established by his current attorney. Or, “I always wear the hijab (Muslim head covering) when I leave the house,” and the detectives in your home town reveal that you never wore it during their surveillance of you. Another: “the termination ruined my marriage,” and it comes out that after the crucial argument with her husband-supposedly about losing her job- the plaintiff ran off to spend the night with someone she first denied and then admitted under oath had been her lover before the argument. Or, “I left my job in heavy industry due to same-sex harassment after being called a ‘homo’ by fellow steelworkers,” but the plaintiff’s landlord and girlfriend reported he actually left to chase after grandchildren taken from him by their reportedly drug-abusing mother.
If we are the sort of attorneys who will contact the detectives in your home town in another state, we will ferret out the truth in your case.
So, what’s the downside for you if caught in a lie? First, lying under oath is perjury, a felony. Our clients always hope that a county prosecutor will go after those who seek to line their pockets on the basis of lies in the way Kim Worthy prosecuted Kwame Kilpatrick. We also mention that bearing false witness violates the 8th or 9th Commandment (depending on differing religions), but don’t have any illusions that many plaintiffs care about that. Sometimes, it can lead to sanctions awards reflecting the costs and attorney fees our clients paid to defend the case. (Our largest in-hand, actually-collected sanctions awards to date are $21,000 and $17,000+). Frequently, it means that your attorney won’t continue on your case, because pressing a case built on fabricated facts hurts your attorney’s reputation at the courthouse. Almost always it means the end of the case and sometimes, it leads to a published opinion that all the world might see. (See Chapter 1.) At the very least, it leads to at least a handful of witnesses who will step forth at your next effort to sue another boss in the future that you have a poor reputation for truth and veracity in the community.
Just wanted you to be informed.