Greviskes v. Universities Research Ass'n, Inc.

• Citation: 417 F.3d 752
• Decision Date: 08 August 2005
• Docket Number: No. 04-3863.,No. 04-2784.,04-2784.,04-3863.
• Parties: Angelita GREVISKES, Plaintiff-Appellant, v. UNIVERSITIES RESEARCH ASSOCIATION, INCORPORATED, doing business as Fermilab and Fermilab NAL/URA, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

417 F.3d 752

Angelita GREVISKES, Plaintiff-Appellant, v. UNIVERSITIES RESEARCH ASSOCIATION, INCORPORATED, doing business as Fermilab and Fermilab NAL/URA, Defendants-Appellees.

No. 04-2784.

No. 04-3863.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 2005.

Decided August 8, 2005.

John N. Dore (argued), Chicago, IL, for Plaintiff-Appellant.

Thomas J. Piskorski (argued), Seyfarth Shaw, Chicago, IL, for Defendants-Appellees.

Before MANION, ROVNER, and WILLIAMS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Angelita Greviskes filed a complaint against her former employer Universities Research Association, Inc. (URA) alleging that she was terminated from her job on the basis of national origin in violation of Title VII of the Civil Rights Act of 1964.¹ The case, however, was never heard on the merits. On June 16, 2004, following briefing and an evidentiary hearing, the district court dismissed the case with prejudice because of Angelita Greviskes' blatant misconduct in the course of discovery and her attempts to obstruct justice. As an additional sanction, the district court awarded $54,613.50 in attorney's fees to URA. Angelita Greviskes appeals the district court's dismissal and monetary sanction. We affirm the district court in all respects and additionally give notice of our intent to award reasonable attorney's fees to URA on appeal.

I.

Angelita Greviskes filed suit against URA on January 13, 2003. In the course of discovery, a protective order was entered governing disclosure of items URA marked as "Confidential." Among the documents produced, URA sent to Angelita Greviskes the personnel records of her former supervisor, Terry Erickson, containing Erickson's social security number, employee number, and signature, but failed to mark the file "Confidential." John Dore, Angelita Greviskes' attorney, gave copies of the Erickson files to her attorney husband Paul Greviskes, who was counsel for a companion state court lawsuit. Angelita Greviskes also sought Erickson's payroll records to prove that she was treated more harshly than Erickson, but URA objected and the documents were not produced.

On November 24 and 25, 2003, the payroll department at URA received faxes ostensibly from Erickson containing her social security number, employee number, and "signature" requesting her own payroll records. The faxes requested that the record department send copies of monthly time sheets to Rothchild and Dore, c/o P.O. Box 393, Batavia, IL 60510, or fax the records to 630-879-8390. The address and fax number noted on the requests were those of Paul Greviskes' law office. The number at the top of the fax (630-585-8022), which identifies the machine from which it was sent, belonged to Greviskes Builders, a company that had been owned by Donald Greviskes, Paul Greviskes' recently deceased brother. Paul Greviskes was the administrator of his brother's estate. Furthermore, the number from which the faxes were transmitted, 630-896-6856, was the second telephone line in the home of Angelita and Paul Greviskes at the time of transmittal.

Although the faxes specified that Erickson would be out of the office for the week, a payroll employee overlooked this fact and called Erickson to let her know that the records could not be produced by November 30, as the faxes had requested. During the telephone conversation, Erickson revealed that she had no knowledge of or involvement in the faxes the department received requesting her payroll records. The matter was then brought to the attention of David Gassman, defendant's in-house counsel, who contacted John Dore and Paul Greviskes by letter on December 1, 2003, asking them about their involvement in the fraudulent faxes and apparent forgeries. Paul Greviskes did not respond at all and Dore left an angry telephone message denying any involvement. URA again attempted to contact Dore and Paul Greviskes on December 11, 2003, giving them an opportunity to explain Angelita Greviskes' involvement in the faxes and also enclosing a draft of a motion to dismiss that would be submitted to the district court. Dore and Paul Greviskes did not respond and URA filed its motion to dismiss on December 16, 2003, asking that the district court dismiss the claim against URA with prejudice and requesting the district court to grant whatever relief it deemed appropriate.

The motion to dismiss was based on an alleged violation of the protective order as well as "the inherent power of the court to protect its integrity and punish litigants for gross misconduct." Greviskes v. Universities Research Ass'n, 226 F.R.D. 595, 596 (N.D.Ill.2004). Dore responded to the motion by arguing that the protective order had not been violated because URA had not marked the Erickson file as "Confidential", that URA should have produced the monthly time sheets, and that his client's conduct was not sufficient to justify sanctions pursuant to the inherent authority of the district court. The response did not deny the facts put forth in URA's motion to dismiss.

Because of the serious nature of the allegations, the district court allowed the parties to take discovery on the motion to dismiss. On December 24, 2003, URA subpoenaed the telephone records for Angelita Greviskes' primary home number and Greviskes Builders' fax number from SBC. Paul Greviskes moved to quash the subpoena as an invasion of privacy, but the district court denied his motion on January 8, 2004.

Angelita Greviskes also engaged in other actions designed to conceal the source of the fraudulent faxes. On December 26, 2003, she disconnected her telephone line ending in extension 6856 and changed her secondary telephone number to 630-859-0045. She failed to reveal the telephone number change when she was deposed on December 31, 2003, instead identifying only her primary home number and her newly-assigned secondary home telephone number as her own telephone numbers. She asserted her Fifth Amendment privilege to all questions asked of her regarding the fraudulent faxes sent to URA's payroll department. Her husband similarly asserted his spousal and attorney-client privileges in response to that same line of questioning in his deposition.

During this period of discovery on the motion to dismiss, Angelita Greviskes not only changed her secondary home telephone number, but she also misrepresented information to SBC in an attempt to block production of records. Instead of admitting to her wrongdoing, she went to lengths in an attempt to cover up her behavior. She tried to prevent the release of information relating to the Greviskes Builders' fax machine number or her previous secondary home telephone line. Rosetta Hicks, a "Service Records Clerk" at SBC stated in a declaration that she called Angelita Greviskes' primary home number in response to a complaint from Angelita Greviskes about certain records being produced. According to Hicks, during these conversations Angelita Greviskes tried to convince her that a motion to quash had been granted and, therefore, SBC should not release the records related to her former secondary telephone line (6856). Hicks contends that upon learning that the records had already been released, Angelita Greviskes started to cry and told her that the records were part of a murder case.

Although Hicks was not deposed and Angelita Greviskes would not confirm these conversations, the record supports Hicks' assertions. A fax was sent to SBC on December 31, 2003, from an Office Depot located in Angelita Greviskes' hometown which stated that a motion to quash had been entered for Paul Greviskes' office telephone number, his office fax number, and the Greviskes' previous secondary home line. Although Angelita Greviskes asserted her Fifth Amendment privilege when questioned about this fax in the evidentiary hearing, the signature of the customer who sent the fax was found to be hers. This was accomplished by comparison to another document bearing her signature, which was entered into evidence against her wishes. It appears that she had learned that faxes could be traced to her home and had taken measures to avoid identification but had not been successful. Despite her efforts, the telephone records ultimately were obtained and revealed that one-minute calls were made from her secondary home line, 630-896-6856, to URA's fax number at the payroll department on November 24 and 25, 2003, at the same time that faxes were received by the department.

On February 4, 2004, in its reply brief in support of its motion to dismiss, URA informed the district court of Angelita Greviskes' attempts to cover up the telephone records of the telephone number from which the fraudulent documents were faxed. Based on the information briefed as well as questions concerning privileges asserted in the depositions of Angelita and Paul Greviskes, the district court decided to hold an evidentiary hearing on the motion, which was scheduled for May 26, 2004. In ordering the hearing, the district court stressed the need to consider all the evidence carefully as the allegations could have possible criminal consequences. Angelita Greviskes filed two motions to dismiss the evidentiary hearing, arguing in both that the district court was without jurisdiction to hear URA's motion to dismiss. The district court denied both of these motions to dismiss the hearing, labeling them "frivolous".

For the hearing, URA subpoenaed the testimony of both Angelita and Paul Greviskes, in part because both had asserted important privileges at their depositions and refused to stipulate to basic facts such as their home telephone number. The district court denied Paul Greviskes' motion to quash the subpoena for his testimony, along with his two motions to quash URA's subpoenas seeking telephone records from his office. Angelita Greviskes subpoenaed the testimony of Karen Osgood, counsel for URA, the testimony of Ron Paul, the head of URA's payroll department, and...