Weaver v. AT&T Corporation
Filing
47
MEMORANDUM OPINION AND ORDER denying 39 Motion to Dismiss. Signed by Judge Jennifer B. Coffman on 8/10/12. cc:counsel (JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 10-146-C
PAULINE D. WEAVER,
V.
PLAINTIFF,
MEMORANDUM OPINION & ORDER
BELLSOUTH TELECOMMUNICATIONS, INC.,
DEFENDANT.
***********
This matter is before the court upon the defendant’s motion to dismiss for
plaintiff’s fraud on the court, R.39. For the following reasons, the court will deny
the motion.
Pauline Weaver brought this action against BellSouth Telecommunications,
Inc., claiming violations of her civil rights after a series of alleged events that led to
Weaver’s resignation from employment with BellSouth. Weaver worked for
Bellsouth from October 1, 2007, until March 16, 2009, and she claims that during
her employment with Bellsouth she was subjected to workplace harassment, a
hostile work environment, racial discrimination, and retaliation, constituting
violations of KRS §344. Before initiating this suit, Weaver made a complaint with
Bellsouth, filled out a statement of occurrence with her union, and filed an EEOC
charge of discrimination. Bellsouth denies the allegations that it engaged in any
unlawful activity and subsequently filed the present motion to dismiss on the basis
that Weaver created a fraudulent e-mail. Bellsouth argues that Weaver fabricated a
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document relating to a key issue in this case and that Weaver should thus be
sanctioned in the form of dismissal of this action with prejudice. Because it is not
clear from the record that Weaver committed fraud on the court, the court will deny
Bellsouth’s motion to dismiss.
The court has “inherent authority to sanction bad-faith conduct ‘when the
party’s conduct is not within the reach of the rule or the statute.’” Chambers v.
NASCO, Inc., 501 U.S. 32, 42 (1991). Bellsouth moves the court to use its
inherent authority to sanction Weaver in the form of dismissal, which is “an
extreme sanction” that “is warranted only where ‘a clear record of delay or
contumacious conduct by the plaintiff’ exists . . . and ‘a lesser sanction would not
better serve the interests of justice.’” Consolidation Coal Co. v. Gooding, 703 F.2d
230, 232-33 (6th Cir. 1983). Guided by these principles, the court finds that a
clear record of contumacious conduct in the form of fraud is not present in this
action and that even if the court found fraud, a lesser sanction should first be
considered.
Bellsouth alleges that Weaver fabricated an e-mail supposedly sent by a
Bellsouth employee, Annette Kennedy, which purportedly serves as evidence for
Weaver’s claims. In the e-mail, Kennedy discusses Weaver’s allegations that
Kennedy had used racial slurs towards Weaver and states that Weaver’s “job is on
the line” for reporting the racial slur. R.39-1. Bellsouth highlights several aspects of
the e-mail that indicate fraud, including the appearance of the e-mail, Kennedy’s
sworn testimony that she did not send the e-mail, Weaver’s belated production of
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the e-mail, Weaver’s wavering testimony about the e-mail’s origins and contents,
an inconsistent timeline of events reported by Weaver, and sworn testimony by
Amy Spann, former Bellsouth employee, that the e-mail in dispute was not reported
to her by Weaver as Weaver claimed in her handwritten notes on the e-mail that
she planned to do.
Weaver responds to Bellsouth’s accusation of fraud by stating that Kennedy
is not a credible or reliable witness and that her denial of sending the e-mail should
therefore be discredited. Weaver also disputes Bellsouth’s allegation that Weaver
did not produce the e-mail until months after it was supposedly sent, and she
argues that Bellsouth has not clearly and convincingly established fraud on the
court because no expert witness has been identified or deposed for the purpose of
establishing that the e-mail in question was fabricated, as Bellsouth opines. Finding
that a factual dispute remains as to whether the e-mail was fabricated and as to
whether Weaver committed fraud, the court will not evaluate whether the “extreme
sanction” of dismissal is appropriate in this action, as it has not been clearly shown
that any sanction is warranted at this time. Accordingly,
IT IS ORDERED that Bellsouth’s motion to dismiss for plaintiff’s fraud on the
court, R.39, is DENIED.
Signed on August 10, 2012
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