IMPORTANT LESSONS FROM TWO RECENT VICTORIES

TEXT MESSAGES CAN COME BACK TO

HAUNT A PLAINTIFF—USE THEM IN YOUR DEFENSE

We just ended a federal case in New York by showing, through the forensic analysis of a cell phone, that the alleged unwelcomed sexual advances at the center of a former employee’s sexual harassment claim were entirely consensual. The former employee had wiped her cell phone clean—except for a few texts that supported her story. The turning point came when it was discovered that the alleged harasser’s cell phone was not lost as first thought. Once that phone was found, a forensic analysis produced a treasure trove of salacious texts (e.g., “Come let me have a kiss on those juicy looking lips”), proving what we had long suspected: the married plaintiff had lied under oath about her relationship with the alleged harasser, a woman who worked for the co-defendant company. Armed with those texts, we threatened sanctions and the lawyer for the former employee caved. But it did not end there. The co-defendant company refused to drop its cross claims for defense and indemnification against our client because it was furious that it had to defend a case that had been fabricated by our client’s former employee (though its own employee had also lied about the relationship). However, after receiving our motion for sanctions as to the frivolous cross claims, the co-defendant company also walked away.

The Lesson: Litigations, especially long ones, rarely end with all parties just walking away. The reason it happened here is clear: Text messages – and similar communications, such as Facebook postings, tweets, etc. – can provide powerful insights into the true nature of a disputed workplace relationship. Fighting hard to obtain them during the discovery phase of a case, and then aggressively using them, can put an end to a lot of costly nonsense.

A POLICY, A COMPLAINT PROCEDURE AND

TRAINING WILL HELP DEFEND AN EMPLOYMENT CLAIM

We also recently won the dismissal of a gender-based hostile work environment claim in New Jersey. In that case, the plaintiff worked in a large corporate office and had some untrue but sexually harassing rumors spread about her (e.g., that she was a “high-end escort”). However, she failed to use the company’s anti-harassment policies for two months and then only did so after she was disciplined for insubordination. Despite the curious timing of her internal complaint, our client swiftly investigated her claim, discovered who was responsible for the rumors, and made that individual apologize. Thereafter, the plaintiff claimed that she was so traumatized by the rumors (the ones she had not reported for two months and which ended before she reported them), that she went on disability leave and then only returned to give her resignation notice. Our client, recognizing that the case was a money grab, vigorously defended the claim.  In the end, the court granted our motion and dismissed the case because our client had an effective anti-harassment policy and complaint procedure.

The Lesson: This result is yet another example of why employers need handbooks that include updated and legally-compliant anti-harassment and anti-discrimination policies and complaint procedures. By such measures, especially when combined with training, employers are best positioned to defend an employment claim. We have seen this work time and time again.