By Ariel D. Fenster

Seyfarth Synopsis: A case out of the District of Oregon recently dismissed a Plaintiff’s sexual harassment and retaliation claims where the allegations relied on manufactured text messages that Plaintiff failed to produce.

After a break-up, you can’t just fabricate text messages and then sue your former employer. In Lee v. Trees, Inc., the District of Oregon recently dismissed a former employee’s lawsuit, wherein she alleged sexual harassment, retaliation, and wrongful termination. The court dismissed the case when the former employee failed to produce the text messages on which her claims were predicated upon. In Lee, the employee had a consensual romantic relationship with her supervisor. According to the plaintiff, when she sought to end the relationship, she received numerous threats against her job unless she continued the sexual relationship.

After filing administrative complaints with the EEOC and the Bureau of Labor and Industries (BOLI), Lee told the investigators that she had text messages where she asked her supervisor to stop the relationship. Lee said these text messages could prove that after ending the relationship she was fired. Based on paper copies of these alleged text messages, the BOLI issued Notices of Substantial Evidence Determinations and right to sue letters.

During initial disclosures, the employer requested that she provide the text messages “in electronic form in their native format.” The employer also requested that Lee provide her five cell phones (Yes, Five!) that she had during her employment. Lee again only produced paper copies of the texts and only one of her cell phones.

Knowing something was fishy, the employer hired a forensic examiner to review Lee’s cellphone. The forensic examiner determined most of these texts were fabricated and in the drafts box of her cell phone. They were not actually sent! Further, many of the printed texts that Lee submitted were only fragments of longer conversations.

Based on the evidence of falsification, Defendants moved for dismissal and sanctions. The Court determined that this was a spoliation issue. “The majority of courts have held that pre-litigation destruction can constitute spoliation when litigation was ‘reasonably foreseeable’ but not where it was ‘merely’ possible.”

Before imposing the sanction of dismissal, the district court must weight several 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 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F. 3d 337, 348 (9th Cir. 1995).

In looking at the five factors and deciding to dismiss the case, the Court determined that Lee deliberately deceived the Court and wasted the time and resources of the Court, of the Defendants, and of her own attorneys. Further, Lee obstructed discovery by her continuing failure to produce the text messages in electronic format (which now it seems she could not do in the first place!).

The Court dismissed Lee’s case with prejudice and held any lesser sanction would suggest to future litigants that they may manufacture evidence with impunity and suffer no meaningful consequence if caught.

The lesson for all potential litigants is you will be caught. There is another important lesson for employers as well — and that is to keep evidence. Simply put (and perhaps too simplistically put), sometimes it is not enough to have the paper copy of a document, particularly when the communications were all done electronically. Keeping electronic copies of items (and preserving ESI if there is a reasonably foreseeable threat of litigation) is always safe- you never know what may happen, or who might want to go poking through electronic files .

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Labor & Employment Team.

By Kevin A. Fritz

Seyfarth Synopsis: A former employee’s social media activities were not “solicitations” that breached his employment non-solicitation agreement where no suggestion to join the former employee was apparent from the activity.

Employers often wonder how far a non-solicitation agreement can go. It can frustrate employers, who may pay extra money for an employee to sign a non-solicitation agreement, to later learn that their former employees have violated such agreements.  And with the rise of social media, and its convergence into the business realm, potential violations through communications between current, prospective, and even previous employees have become more complicated than ever.  A recent Illinois appellate court recently considered the complex nature of these communications in the form of a LinkedIn invite.

What’s in a message?

In Bankers Life & Casualty Co. v. American Senior Benefits, LLC, No. 1–16–0687, 2017 IL App (1st) 160687-U (1st Dist., June 26, 2017), Bankers Life hired a branch sales manager who signed a non-solicitation agreement.  Part of the agreement required the manager not to solicit Bankers Life employees after he left the company.  Suffice it to say, the manager left the company, and according to Bankers Life, the past employee “recruited or attempted to recruit Bankers Life employees and agents from the Warwick, Rhode Island office, by sending LinkedIn requests to connect to three employees.” Once connected on LinkedIn, the three employees clicked on the former sales manager’s LinkedIn profile and saw that American Senior Benefits had open positions as the advertisement was posted on the former employee’s profile.

The question before the Appellate Court was whether an LinkedIn invitation to connect can be considered an attempt to solicit employees in violation of a non-solicitation agreement. The former sales manager moved for summary judgment, claiming that merely inviting one to connect on LinkedIn is not a prohibited solicitation, in contravention to the non-solicitation agreement. The sales manager put forward evidence to show that he did not send any direct messages to the three Bankers Life employees, but simply sent the standard LinkedIn request message that the three employees form a professional connection with him through the business social media platform.

The Appellate Court agreed and upheld the grant of summary judgment in favor of the former employee. The court found dispositive the fact that the “invitations to connect via LinkedIn were sent from [the employee]’s LinkedIn account through generic emails that invited recipients to form a professional connection. The generic emails did not contain any discussion of Bankers Life, no mention of [his new employer], no suggestion that the recipient view a job description on [the employee]’s profile page, and no solicitation to leave their place of employment and join [his new employer].”

Indeed, it did not even matter to the court that the employee’s page on LinkedIn had a job posting for his new employer. Rather, , what mattered to the court was that upon receiving the e-mails, the Bankers Life employees had the option of responding to the LinkedIn requests to connect. The court noted that where the substance of a LinkedIn communication revealed an invitation to apply for a position, such communication could rise to the level of a solicitation.

Employer Takeaway

While the decision is not binding authority on other Illinois courts, its rationale is poignant and will likely be used in future decisions. With any form of communication – whether it be LinkedIn, Facebook, Twitter, e-mail, or the next wave of social media enterprise – it is often less important how that information is communicated, but rather it is what is communicated that matters. If the substance of the message gives rise to a solicitation, it won’t matter if it is less than 140 characters, a temporary 10 second Snapchat, or even a LinkedIn request message.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Labor & Employment Team.