This post examines an opinion a federal District Court Judge
who sits in the U.S. District Court for the Western District of Washington
issued recently: Watkins v. Infosys, 2015 WL 4493440. The judge begins his opinion
by explaining that he is going to rule on the Infosys’s Motion for the Sanction of Dismissal and Motion for Summary Judgment.
Watkins v. Infosys, supra. He
also summarizes the conduct that led to both motions:
Plaintiff Marilyn Watkins brings the
above-captioned lawsuit against her former employer, IT-services provider
Infosys, alleging discrimination based on her race/national origin,
retaliation, and breach of promise. . . . Plaintiff is Caucasian and a Canadian
citizen with Permanent Resident status in the United States. . . .
She worked for several years as a
manager with Defendant Infosys -- a foreign company headquartered in Bangalore,
India -- in its Bellevue, Washington office. . . . In September of 2013, she
was terminated. . . . Plaintiff claims that her termination-as well as her
treatment in terms of compensation and job title-was motivated by
discrimination based on her race and nationality. . . . Defendant has
consistently indicated that Plaintiff's termination was the result of a global,
company-wide reduction in force in the Education and Research group (“E &
R”) in which Plaintiff worked. . . . . That reduction in force caused Defendant
to eliminate all E & R positions in the U.S. and the United Kingdom, as
well as positions in China and India. . . .
The behavior of both parties in the
present litigation has been problematic. Numerous discovery disputes have
required Court intervention in producing documents, scheduling depositions, and
disclosing expert reports. . . . The Court awarded Plaintiff attorney fees
based on Defendant's failure to comply with discovery orders. . . . At
different points in this litigation, both sides have dodged sensible
opportunities to litigate cooperatively. . . .
Watkins v. Infosys,
supra.
We will get into what each of the motions listed above means
and the consequences of granting either or both of them later in this
post. First, we need to know how and why
the case arose. As the judge explains in
his opinion, “[o]n or about” October 20, 2013,
Plaintiff performed a Bing search for
the term `disk wipe,’ downloaded and installed `MiniTool Drive Wipe’ software
onto the hard drive of her work computer, and ran the program to wipe files
including folders entitled `D: E & R Infosys Termination,’ and `My New Role
Lawsuit.’ . . . Moreover, eleven external media drives had been connected to
Plaintiff's laptop in the days prior to the disk wipe. . . . Defendant became
aware of this fact through its own consultation with an expert. . . .
However, in previous, sworn testimony,
Plaintiff responded to interrogatories indicating that she had `produced the
contents of her computer to Defendant as part of her Initial Disclosures,’ that
`she did not “remove” things from Defendant's premises,’ and that she `followed
procedures typical with such litigation . . . to avoid the alteration or
deletion of documents, in addition to preserving data back-ups relating to her
employment.’ . . . In other words, in her responses to Defendant's
interrogatories, signed February 3, 2015, Plaintiff perjured herself. . . .
Furthermore, the rationale Plaintiff
has provided-both for wiping the computer files and for failing to disclose
information and documents related to the wipe-have been nonsensical. In her
deposition, Plaintiff admitted for the first time that she wiped the files,
claiming that she did so out of concern for information preservation and
client confidentiality. . . . In a supplemented response, filed on the last day
of discovery, Plaintiff again refused to turn over the wiped contents of her work
computer, asserting that, `all electronic records, save for unsent drafts,
passed through Defendant's servers and, therefore, the company is already
possession [sic] of this information.’ . . . Plaintiff continued, `the
electronic records not previously produced or utilized in this litigation are
vast and irrelevant to the claims or controversies in this case.’
Finally, Plaintiff rather
unconvincingly indicated that she `[was] in the process of replicating all
documents that she retained and will provide the same to Defendant upon their
soonest availability.’
Watkins v. Infosys,
supra.
In footnotes to comments in the above paragraph, the Judge
explains that, when Watkins was deposed by Infosys, at some point in this
process, she responded to two questions as follows:
Q: Would wiping your computer be
consistent with taking special attention to avoid the alteration or deletion of
documents?
A: Yes, it would be.
Q: And how would that be, wiping your
computer?
A: I felt that I needed to protect the
information that was on my computer, so I preserved it, and then I eliminated
it, more or less, from the drive.
Q: You wiped it so it wouldn't have
anything on it if they redeployed it?
A: Correct. I had a lot of Infosys
confidential information by virtue of being a Job Level 8 . . . I had client data. It was unconscionable to me
that that information would end up in the hands of somebody that shouldn't. . .
.
Watkins v. Infosys,
supra.
He went to explain that the
Court finds Plaintiff's responses both
illogical and unbelievable. First of all, it belies the very concept of a `disk
wipe,’ to argue that wiped files would continue to be in Defendant's
possession. Second, not only does Plaintiff's unilateral determination of the
irrelevance of files in her sole possession usurp the judicial function; it is
also contradicted by her subsequent reliance on the very same documents. . . .
Third, a hollow promise to gather and
produce evidence at the conclusion of discovery does not undermine the
misconduct, spoliation, and perjury already committed-nor does Plaintiff's late
production of 15,000 pages of documents without the corresponding flash drives.
. . .
Plaintiff's brief in response to
Defendant's motion for the sanction of dismissal only exacerbates the problem. .
. . There, Plaintiff regurgitates flimsy justifications for wiping her disk
drive, doubles-down on her unsupported argument about the irrelevance of the
wiped files, and asserts blankly that `there has been no actual
suppression or withholding of evidence since the entire content of Plaintiff's
computer has been produced to Defendant.’ . . .
Watkins v. Infosys,
supra. In a footnote appended to the
last sentence above, the judge notes that
Plaintiff adds that she `is prepared to
turn over the USB drives to Defendant on the condition that agreement is
reached on how to protect the privacy and confidentiality of Plaintiff's
personal data. . . .’ . . . . Plaintiff misses the mark: this is no longer a
discovery dispute, and the time for such delay tactics has passed.
Watkins v. Infosys,
supra.
The judge then outlined the applicable legal standard he was
required to apply in ruling on the Motion for Sanction of Dismissal:
District courts possess an inherent
power to dismiss cases where `a party has engaged deliberately in deceptive
practices that undermine the integrity of judicial proceedings.’ Anheuser–Busch,
Inc. v. Natural Beverage Distributors, 69 F.3d 337 (U.S. Court of Appeals for the 9th Circuit 1995).
Before imposing the sanction of
dismissal, courts in the Ninth Circuit must weigh five factors: (1) the
public's interest in expeditious resolution of litigation, (2) the court's need
to manage its dockets, (3) the risk of prejudice to the party seeking sanctions,
(4) the public policy favoring the disposition of cases on their merits, and
(5) the availability of less drastic sanctions. Anheuser–Busch, 69
F.3d at 348. . . . The Court reviews Plaintiff's perjury and spoliation in
light of these five factors.
Watkins v. Infosys,
supra.
Next, he analyzed the applicability of these factors to the
circumstances in this case:
The first two factors, public interest
in the expeditious resolution of cases and the Court's need to effectively
manage its docket, both favor dismissal. Plaintiff's actions resulted in the
concealment and destruction of evidence, seriously delaying the progress of
this litigation. As the Court previously acknowledged, discovery in this case
has not gone smoothly; the discovery deadline had to be extended not once but
four times based on the behavior of both parties. . . .
Twice the parties have sought Court
intervention via telephonic conference. . . . Even after the discovery
completion deadline, the parties continue to bring discovery-related disputes
to the Court. . . . In other words, the
above-captioned matter has required substantial judicial resources. While it is
true that both parties have obstructed the expeditious resolution of this
matter, the Court finds that Plaintiff's spoliation, perjury, and delayed
disclosures have contributed immensely to this litigation's lack of forward
momentum.
Watkins v. Infosys,
supra.
He then took up the third factor – the “risk of prejudice to
the party moving for sanctions”, noting that it “also favors dismissal of this
case.” Watkins v. Infosys, supra.
The prejudice inquiry requires courts
to `look[ ] to whether the spoiling party's actions impaired the non-spoiling
party's ability to go to trial or threatened to interfere with the rightful
decision of the case.’ Leon v. IDX Systems Corp., 464 F.3d 951 (U.S. Court of Appeals for the 9th Circuit 2006). . . Plaintiff's actions fit
squarely within this description. Despite Plaintiff's insistence to the
contrary, wiping and withholding evidence from Defendant goes right to the
heart of Defendant's ability to litigate or try this case.
Watkins v. Infosys,
supra.
The judge then explained that the
fourth factor, the over-arching public
policy favoring a merits-based disposition of any given case, plainly tips
against dismissing this case as a sanction. The summary judgment briefing
before the Court enables such a merits-based disposition of this case.
Watkins v. Infosys,
supra.
And, finally, he analyzed the applicability of the fifth factor,
noting that it “weighs against dismissal.”
Watkins v. Infosys, supra. The judge went on to explain that the
Court does not take lightly the degree
to which perjury taints the possibility of fair judicial proceedings. See Arnold
v. County of El Dorado, 2012 WL 3276979 (U.S. District Court for the Eastern District of California (2012) (`[P]erjury on any material fact
strikes at the court of the judicial function . . . ‘). Lying under oath
and submitting false discovery responses constitute deliberate misconduct
warranting the sanction of dismissal. Combs v. Rockwell Int'l Corp., 927
F.2d 486 (U.S. Court of Appeals for the 9th Circuit 1991) (`Dismissal is an
appropriate sanction for falsifying a deposition’).
Prior to implementing the sanction of
dismissal, however, it is appropriate for district courts to (1) consider the
feasibility of less drastic sanctions, (2) to implement other sanctions short
of dismissal, and (3) to warn the offending party of the possibility of
dismissal before so ordering. Leon v. IDX Systems Corp., supra (quoting Anheuser–Busch,
Inc. v. Natural Beverage Distributors, supra). In particular, warnings
prior to dismissal are frequently required by reviewing courts. Malone v.
U.S. Postal Service, 833 F.2d 128 (U.S. Court of Appeals for the 9th
Circuit 1987) (`Failure to warn has frequently been a contributing factor
in our decisions to reverse orders of dismissal’).
The Court is aware that no such warning
has been given to Plaintiff-largely because the extent of Plaintiff's
misconduct was not made known to the Court prior to this latest round of
motions.
Watkins v. Infosys,
supra.
He went on to point out that,
[u]pon consideration of the five
factors announced by the Ninth Circuit, the Court finds that three weigh in
favor of dismissal and two do not. While it's an incredibly close call, the
Court prefers to address this case, finally, on its merits. As such,
Defendant's motion for the sanction of dismissal . . . is hereby DENIED.
Watkins v. Infosys,
supra.
The judge then took up the defendant’s Motion for Summary
Judgment explaining that
Plaintiff was hired by Infosys
Consulting, Inc. in 2005. . . . In 2011,
Infosys Consulting, Inc. was merged into Defendant's Management Consulting
Services (`MCS’) group. . . . Plaintiff became a `Senior Principal’ in the MCS
department in 2007. . . . In April, 2012, Plaintiff was promoted -- despite not
meeting the initial requirements of the job posting -- to head the Management
and Consulting Skills Department (`Head—MCSD’), a position housed in the
Education & Research (“E & R”) group. . . . A company-wide reduction in
force led to the elimination of Plaintiff's position in August 2013. . . .
Plaintiff's complaints of
discrimination are three-fold: she alleges (1) that she was wrongly denied an
increase in compensation when assuming the Head—MCSD position, (2) that she was
wrongly denied a title, and (3) that her termination was discriminatory in
nature.
Watkins v. Infosys,
supra.
He then analyzed each allegation in turn, beginning with
compensation. Watkins v. Infosys, supra. The
judge began by explaining that Infosys assigns
its employees two `levels;’ a
`Job Level’ to designate their position level within the company, and a
`Personal Level’ identifying an individual employee's compensation relative to
others. . . . Whereas the Job Level is connected with each given position,
an employee's Personal Level pertains to his or her compensation, follows them
individually, and is subject to change during a `compensation review cycle.’ .
. . It is not unprecedented for an employee to have a Job Level incongruent
with her Personal Level. . . .
Plaintiff entered into her role as
Head—MCSD in the E & R group in July, 2012. . . . Because hers was an
internal promotion, pursuant to Defendant's policy, Plaintiff was not eligible
for an increase in her Personal Level until the next `compensation review
cycle.’ . . . Accordingly, while Plaintiff's Job Level increased to 8 by virtue
of the position, her Personal Level remained a 7. . . .
Plaintiff was dissatisfied with her
compensation upon entering her new position. Multiple times, she inquired about
a compensation increase and, accordingly, an increase in her Personal Level. .
. . Plaintiff contends that between July and September of 2012 her supervisor,
Strikantan Moorthy, verbally promised her an eventual compensation increase
commensurate with new MCS partners. . . . No writing memorializes
this agreement -- and Plaintiff does not contend that such writing exists.
. . . Subsequent e-mail communication from Mr. Moorthy confirmed
that Plaintiff's new Job Level was an 8, but was silent with respect to her
Personal Level. . . .
In July 2013, a compensation review
cycle took place. . . . Plaintiff's compensation was reviewed. . . . It was
then determined that Plaintiff's compensation, which carried over from her
previous department where employees are paid more, was already consistent with
her new position. . . .
Watkins v. Infosys,
supra.
The judge then analyzed Watkins’ arguments concerning her
title, noting, initially, that
[i]n addition to the designations that
accompany an employee's Job Level and Personal Level, Defendant also recognizes
certain employees by way of a title, such as Associate Vice President. . . .
Based on specific criteria, Defendant holds a `title-holder’ recognition
process about once a year. . . . For positions based in the U.S., a partnership
selection process supplants the `title-holder’ recognition process. . . . This
process was not undertaken in the company at all during 2012. . . .
Earlier in her career with Defendant,
Plaintiff aspired to move up in the company hierarchy from Senior Principal to
a `partner’ in the MCS department, a desire she expressed beginning around
2008. . . . The partnership process, roughly equivalent to a `title-holder’
process in Defendant's non-U.S. locations, typically occurs about once per
year. . . . The process includes a self-nomination form, due diligence review
by a selection committee of partners, and-if deemed a good candidate-a
presentation to the company's partners. . . . Plaintiff began to seek
consideration for a partner position for the first time in 2011, with the
understanding that the process would begin in February 2012. . . . It was
communicated to Plaintiff that she was eligible to be considered for a partner
role in 2012. . . .
Before undergoing that process,
however, the Head—MCSD position was created. . . . In April 2012, Plaintiff was
selected for that position despite not meeting the requirements of the initial
job posting. . . . Having received this promotion, Plaintiff withdrew
herself from consideration for partner. . . . At that time, her candidacy for
the title of partner was in the due diligence stage. . . .
While Plaintiff withdrew herself from
the partner selection process after being selected as Head—MCSD in 2012, she
continued to seek a title after assuming that role. . . . In June of 2013,
Plaintiff asked Mr. Moorthy about being considered for a title. . . .In July
2013, it was determined that Plaintiff was not eligible to be considered for a
title because of her most recent performance rating. . . .
Watkins v. Infosys,
supra.
And, finally, he analyzed termination:
A change in company leadership in June
2013 led to a cost reduction initiative. . . . This led to a global reduction
in force eliminating approximately two hundred positions across various
locations and departments. . . . The positions eliminated included all ten
high-paying E & R positions: of these four were in the United States, two
were in the United Kingdom, and four were in China. . . . Consequently,
Plaintiff's position was eliminated. . . .
When Plaintiff received confirmation
that her position would be eliminated, Nandita Gurjar, the new head of the E
& R group, offered either to seek opportunities for Plaintiff in India or
provide her with a severance package. . . . Plaintiff did not express openness
to working in India. . . . Rather, Plaintiff was authorized to apply for
positions in other departments within the company by September 15, 2013. . . .The
procedures implemented in Defendant's cost-optimization process allowed
employees whose positions had been eliminated to apply for other open jobs at
their Job Level. . . . Plaintiff was allowed to apply at either a Job Level 7
or 8, in a relaxation of the policy. . . . Plaintiff was considered for two
positions. . . .Of those two, she and the interview team agreed that one was
not a good fit. . . . She was not considered a fit for the second position
based on its location. . . .Finally, a partner in the MCS group looked into
using an available hiring slot to find a position for Plaintiff, but the MCS
group was itself downsizing and unable to accommodate a new hire. . . .
On September 3, 2013, Plaintiff filed
an internal complaint alleging national origin discrimination, breach of
promise, retaliation, wrongful termination, and wage discrimination. . . . A
third-party investigator concluded that Defendant's reduction in force efforts
were supported by legitimate reasons. . . .
Watkins v. Infosys,
supra.
The judge then analyzed whether Infosys’ motion for summary
judgment in its favor, which would end the litigation, should be granted. Watkins
v. Infosys, supra. As he noted,
under Rule 56 of the Federal Rules of Civil Procedure, a judge should issue
summary judgment if (i) no “genuine issue of material fact” is in dispute and
the party moving for summary judgment is entitled “to judgment as a matter of
law.” In other words, there is no need
for a trial. The judge began his
analysis by explaining that
Plaintiff alleges four claims: (1)
race/national origin discrimination in violation of the Revised Code of
Washington § 49.60.180, (2) discrimination in compensation, job status, and
terms and conditions of employment, presumably in violation of the same, (3)
retaliation in violation of the Revised Code of Washington § 49.60.210 and
(4) breach of promise of specific treatment. . . . The Court addresses these claims in two
stages: turning first to the discrimination claims, all of which fail for lack
of a prima facie case, and second to the breach of promise claim which fails as
a matter of law.
Watkins v. Infosys,
supra.
The judge then pointed out that, when a Washington state
court is ruling on a claim for discrimination, it uses the analysis the U.S.
Supreme Court articulated in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Watkins v. Infosys, supra.
He noted that the
McDonnell Douglas framework
first requires a prima facie showing that: `(1) plaintiff is a member of a
protected class; (2) plaintiff applied for [a benefit or treatment] and was
qualified to receive it; (3) the [benefit or treatment] was denied despite
being qualified; and (4) defendant approved [the benefit or treatment] for a
similarly situated party during a period relatively near the time plaintiff was
denied [the benefit or treatment].’ Riehl v. Foodmaker, Inc., 15
Wash.2d 138 (Washington Supreme Court 2004); Gamble v. City of
Escondido, 104 F.3d 300 (U.S. Court of Appeals for the 9th Circuit 1997). After
the plaintiff proves her prima facie case, the burden shifts to the defendant
to articulate a `legitimate, nondiscriminatory reason for its action.’ Gamble
v. City of Escondido, supra.
Watkins v. Infosys,
supra.
The judge went through the McDonnell Douglas factors with
regard to Watkins’ compensation, her title and her termination. Watkins
v. Infosys, supra. He found that she
had shown she belongs to a protected class, but could not “establish the
remainder of a prima facie case.” Watkins v. Infosys, supra. I will not summarize his analysis here
because this is already a long post and because you can, if you are interested,
find the full opinion here.
The judge ultimately granted Infosys’ motion for summary
judgment as to Watkins’ first three claims, i.e., her compensation, title and
termination. Watkins v. Infosys, supra.
He also granted summary judgment as to Watkins’ claim of breach of
promise concerning an oral promise allegedly made to her. Watkins
v. Infosys, supra. The rulings
should therefore end the case; Watkins can always appeal the rulings, of
course, and if she won on some or all of the issues, the case would presumably be
resuscitated. Watkins v. Infosys, supra.
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