One of the essential tools in any lawsuit or EEOC charge is the affidavit. The employee typically will sign a couple of different affidavits at various stages of a lawsuit. The affidavit is supposed to represent the witnesses’ testimony. An affidavit should mirror the employee’s actual testimony.  But, the rough draft of an affidavit is often prepared by legal personnel, whether it is the Equal Employment Opportunity Commission or the employee’s own law firm. So, some affidavits, if not closely vetted, sound wrong or they are just flat inaccurate. It is up to the witness to ensure any statement is accurate before signing.

In Green v. MOBIS Alabama, LLC, No. 12-CV-277 (M.D. Ala. 3/25/2014), we see what can go wrong with the process of preparing an affidavit. Noria Green applied for unemployment benefits after she was fired. She was denied benefits. Assisted by an associate attorney with Haynes & Haynes, Ms. Green appealed the denial. There was a telephone hearing on Dec. 16, 2011. Ms. Green had been accused of forging a doctor’s notes. At the Dec. 16 telephone hearing, the employer still had not provided the employee or the agency a copy of those allegedly forged notes. The hearing officer postponed the hearing to an unspecified date. Later, the agency sent notices that the hearing would re-convene via telephone on Jan. 4, 2012. The notice was sent in late December when MOBIS’ plant was shut down. So, MOBIS did not receive the notice in time to appear for the telephone hearing.

During the hearing on Jan 4, the hearing officer tried three times to contact MOBIS , but could reach no one. Even though MOBIS was not present for the hearing and they still did not have the alleged notes, the hearing officer found in favor of the employee, Noria Green. The notice sent later about the hearing indicated that MOBIS had attended – even though MOBIS did not attend. The state unemployment agency erred.

Later, in the resulting lawsuit, the employee’s firm argued that the employer was judicially estopped from arguing the doctor’s notes had been forged. The employee via Haynes & Haynes argued that the issue had been previously addressed in the unemployment hearing. Attached to the plaintiff’s response to the motion for summary judgment was an affidavit signed by Ms. Green. The statement claimed that MOBIS had attended the Jan. 4 unemployment hearing. At the time of her response, there was no transcript of the unemployment hearing.

The defendant submitted an affidavit from the MOBIS representative saying he had not been present at the Jan. 4 hearing. He also referred to the newly acquired audio recording of the Jan. 4 hearing as proof. MOBIS provided a transcript of the hearing showing that MOBIS had not attended the Jan. 4 hearing. The plaintiff via the firm of Haynes & Haynes moved to strike this new evidence as untimely. The court refused to strike the evidence and granted summary judgment. It pointed out that Haynes and Haynes law firm was present for the Jan. 4 hearing and should know the affidavit of Mr. Green was false. The court found that Plaintiff’s lawyer misrepresented facts to the court.

MOBIS then asked for attorney’s fees as a sanction, arguing the plaintiff’s law firm had attempted to perpetuate fraud on the court. I did not see the attorney’s fees request, but typically that would involve tens of thousands of dollars.

Ms. Haynes responded that she relied on the notice sent after the hearing. That notice indicated that MOBIS had been present for the Jan. 4 hearing. In the court’s view, however, Ms. Haynes, the lawyer, changed her story about the false affidavit. She tried to argue that MOBIS had an opportunity to litigate the issue at the initial Dec. 16 hearing. She argued other factual issues. But, said the court, in the end, Ms. Haynes’ principal argument was that under agency rules, there is actually only one unemployment hearing date. Any other hearings are considered as part of the one hearing. The court was not persuaded by this specious argument.

At the oral hearing on the motion for sanctions, Ms. Haynes indicated the real problem, said the court. She first became aware that MOBIS had not been present at the Jan. 4 hearing when she read the court’s decision on summary judgment. In effect, the lawyer admitted she had submitted an affidavit without making sure the affidavit was accurate. Ms. Haynes had the audio recordings of the two unemployment hearings. But, said the court, she did not listen to them until after summary judgment had been granted. The court found this incredible.

I don’t know. If the witness agrees to an affidavit, is the lawyer responsible? Perhaps, the court reasoned that whether MOBIS actually attended the Jan. 4 hearing was less a factual issue than a legal issue.

In any event, the employer admitted it did not comply with Fed.R.Civ.Pro. Rule 11. It did not provide the motion for sanctions to the Plaintiff before filing it. That is, it did not offer the plaintiff the “safe harbor” option by which sanctions could be avoided. Therefore, it is barred form seeking attorney’s fees. The court could still award sanctions for unethical behavior. The court noted that eleven attorneys attended the Rule 11 oral hearing. Much effort was invested in the motion for sanctions when the two parties simply refused to talk to each other.

So, the court ordered the parties’ respective lawyers to share two meals together. They would each pay their own expenses. The court imposed a 30 day deadline in which to file a certification with the judge indicating they had done so.

Or as my judge in rural Louisiana would say, “Let’s agree everyone in this room is a sunavabitch and go on from there . . .” See decision here.

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