628 F.3d 1270 (11th Cir. 2010), 07-14077, Norelus v. Denny's, Inc.

Docket Nº:07-14077.
Citation:628 F.3d 1270
Opinion Judge:CARNES, Circuit Judge:
Party Name:Floride NORELUS, a.k.a. Lavictore Remy, Plaintiff, v. DENNY'S, INC., T.W. Services, Inc., Meos Corp., Inc., a Florida corporation, Asif Jawaid, individually, Raheel Hameed, individually, Defendants-Appellees. Karen Coolman Amlong, William R. Amlong, Amlong & Amlong, P.A., Interested-Parties-Appellants,
Attorney:George Cochran, Fordham Law School, New York City, Jennifer Daley, Amlong & Amlong, Ft. Lauderdale, FL, for Appellants. Joan M. Canny, Akerman Senterfitt, Miami, FL, A. Hinda Klein, Conroy, Simberg & Lewis, P.A., Hollywood, FL, Jon K. Stage, Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson...
Judge Panel:Before TJOFLAT and CARNES, Circuit Judges, and BOWEN,[*] District Judge. BOWEN, District Judge, concurring in part: TJOFLAT, Circuit Judge, dissenting:
Case Date:December 28, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1270

628 F.3d 1270 (11th Cir. 2010)

Floride NORELUS, a.k.a. Lavictore Remy, Plaintiff,

Karen Coolman Amlong, William R. Amlong, Amlong & Amlong, P.A., Interested-Parties-Appellants,

v.

DENNY'S, INC., T.W. Services, Inc., Meos Corp., Inc., a Florida corporation, Asif Jawaid, individually, Raheel Hameed, individually, Defendants-Appellees.

No. 07-14077.

United States Court of Appeals, Eleventh Circuit.

December 28, 2010

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Appeal from the United States District Court for the Southern District of Florida.

George Cochran, Fordham Law School, New York City, Jennifer Daley, Amlong & Amlong, Ft. Lauderdale, FL, for Appellants.

Joan M. Canny, Akerman Senterfitt, Miami, FL, A. Hinda Klein, Conroy, Simberg & Lewis, P.A., Hollywood, FL, Jon K. Stage, Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A., Ft. Lauderdale, FL, for Appellees.

Jesse Leland Skipper, Jesse L. Skipper, P.A., St. Petersburg, FL, for Amicus Curiae, Nat. Employment Lawyers Ass'n.

Before TJOFLAT and CARNES, Circuit Judges, and BOWEN,[*] District Judge.

CARNES, Circuit Judge:

No one's memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three or four. But not 868 of them. In this case, the plaintiff's attorneys, William and Karen Amlong, filed a sixty-three page errata sheet containing 868 attempted changes to their client's deposition testimony, which was the sole source of evidentiary support for their client's claims. The district court exercised its authority under 28 U.S. C. § 1927 to sanction the Amlongs. This is their appeal, or more specifically their second appeal.

I.

A.

In May 1994, Floride Norelus, an illegal immigrant from Haiti, and two of her brothers met with Debra Valladares, a Miami attorney specializing in family law and personal injury litigation. Norelus' native tongue is Haitian French Creole and she has some difficulty with English, so her brothers translated for her. At the meeting, Norelus told Valladares that she had suffered a nearly year-long ordeal of sexual abuse, including rape, inflicted by Asif Jawaid and Raheel Hameed. Those two men, who were roommates, managed separate Denny's restaurants where Norelus worked as a bus person, prep cook, and dishwasher. At the meeting one of Norelus' brothers told Valladares that Jawaid had admitted sexually abusing Norelus.

After meeting with Norelus, attorney Valladares visited the two Denny's restaurants where Norelus had told her that much of the alleged abuse occurred. During these visits, Valladares spoke with a Denny's employee, Edmond Reed, and a regular patron, John Green, about Norelus' allegations. Both denied having witnessed the kind of sexual misconduct that Norelus alleged. According to Valladares, Reed did tell her that Jawaid, in Valladares' words, " definitely had a thing for [Norelus] and that she was like his property." Green agreed, adding that he felt sorry for Norelus because Jawaid treated her, in Valladares' words, " as a slave."

At this point, Valladares got help from another attorney, Joseph Chambrot. Chambrot did not investigate Norelus' allegations, but instead agreed to involve himself with the case because he believed Norelus " looked like a victim" and " looked like someone who had been raped." Neither Valladares nor Chambrot had any experience with Title VII litigation, so the pair sought the help of William and Karen Amlong and their firm, Amlong & Amlong, P.A. The Amlongs are experienced Title VII attorneys.

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B.

In August 1994, months after the nearly year-long period of alleged abuse had ended, Norelus reported the alleged incidents to the police and to the owners of the Denny's restaurants. The investigation undertaken by the restaurant owners uncovered no evidence to support Norelus' claims. Following the police investigation, the State Attorney decided not to prosecute the case due to " inconsistencies and conflicts" in Norelus' account of the events and a lack of corroborating evidence. The Amlongs knew about the results of the investigation and the State Attorney's refusal to prosecute before they engaged in the conduct that led to the sanctions against them.

Valladares and Chambrot, working from a sample complaint provided by the Amlongs, filed Norelus' initial complaint on December 19, 1994 in the United States District Court for the Southern District of Florida. In January 1995, the Amlongs assumed primary responsibility for representing Norelus, although Chambrot and Valladares remained minimally involved as co-counsel throughout the litigation. Norelus was deposed for the first time in the present case on August 3, 1995. The Amlongs filed amended complaints on behalf of Norelus on July 27, 1995 and February 12, 1996. The February 12 amended complaint contained claims of sexual harassment, retaliation, battery, unequal pay, invasion of privacy, intentional infliction of emotional distress, false imprisonment, and negligent hiring, training, retention, and supervision. The five defendants were Denny's, Inc., its parent company, a Denny's franchisee, and Jawaid and Hameed.

If the story underlying Norelus' complaint is true, for nearly a year, from June 1993 to May 1994, she was constantly subjected to sexual harassment and abuse by a relentless aggressor, Jawaid. He was, she alleged, occasionally joined in his gross misconduct by his roommate Hameed. In her complaint Norelus alleged that over an eleven-month period while she worked for Denny's, she was not only sexually harassed but also assaulted, battered, kidnapped, and raped. She alleged that Jawaid " repeatedly" sexually assaulted her by touching her breasts, genitalia, and buttocks. She alleged that he repeatedly forced her to have oral, vaginal, and anal intercourse with him in various areas of the restaurant, including the men's bathroom, the walk-in area in front of the freezer room, the stockroom, and in the manager's office while the office window was covered with a piece of cardboard. She testified in her deposition that Jawaid forced her to have oral sex " almost every day" for eleven months.

Norelus claimed that Jawaid offered her job advantages if she went along with his sexual advances and threatened to report her to immigration authorities or to refuse to file necessary immigration paperwork if she did not. Norelus also claimed that when she refused Jawaid's sexual demands, he assigned her unpleasant duties like cleaning the men's restroom. She alleged that during one of the times when she was forced to clean the men's restroom at the restaurant Hameed managed, he forced her to have sex with him there.

Most of the conduct Norelus alleged occurred entirely at work, although some of it allegedly began at work and ended at the managers' home. For example, according to Norelus, Jawaid and Hameed made her leave work early on a few occasions to go to their house for sex. She alleged that on one occasion she was forced to leave work early and was transported to the house where Jawaid and Hameed lived. There, she alleged, the two men restrained her, raped her repeatedly, and forced a hairbrush into her vagina.

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Most of what allegedly went on, however, occurred at work during regular work hours.

Despite Norelus' allegations of pervasive harassment, gross abuse, and rampant criminal behavior against her, which occurred in various areas of two Denny's restaurants over the course of almost a year, no one else saw or heard a thing. At least seven of Norelus' co-workers, whom the Amlongs had planned to call as witnesses in support of her allegations, actually contradicted those allegations under oath when deposed by defense counsel. Those witnesses were specifically asked if they had ever heard Jawaid make any sexual comments to Norelus, if they had ever seen Jawaid touch Norelus in a sexual way, and if they had seen Jawaid touch any female employee in a sexual way. All of them answered " No" or " Never" to those questions.

One of those witnesses was a waitress named Rose Boleda, who worked the same shift as Norelus. When asked about the interactions of Jawaid and Norelus, Boleda testified: " I never saw anything out of the ordinary to say that anything was going on." 1 After giving similar testimony, some of the other witnesses stated that they wondered why Norelus had identified them as having seen or heard something.

None of the co-worker witnesses testified to having seen or heard anything improper. Some went further, and based on their experiences with Jawaid expressed doubt that such conduct could have occurred. Rose Boleda testified that when Jawaid would " hear[ ] the girls talking about something [sexual] he [would] walk[ ] right out. He gets very upset. He doesn't like that at all, so he would never [engage in the alleged conduct]." When asked about the allegations against Jawaid, Denny's line cook Evon Martin shook his head and said: " It's just not him to do that .... He's not the kind of guy who would talk about sex or mess with people like that." Martin also testified that he had received a phone call from Norelus telling him that she was suing Jawaid for sexual harassment and wanted to meet with Martin to talk. Martin noted that during their conversation Norelus had complained that " [Jawaid] made me work so hard," but she said nothing about Jawaid having sexually harassed her.

From the deposed witnesses' descriptions of the restaurants involved, it is inconceivable that gross sexual harassment and misconduct could have occurred on a near-daily basis for nearly a year, as Norelus claimed it did, without any witnesses having seen or heard anything. According to Boleda, there is " no way anything is going to happen in that little tiny restaurant and [some employees are] not going to see what's going...

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