Vargas v. Peltz, 94-8041-CIV.
| Decision Date | 17 March 1995 |
| Docket Number | No. 94-8041-CIV.,94-8041-CIV. |
| Citation | 901 F. Supp. 1572 |
| Parties | Maria VARGAS, Plaintiff, v. Nelson PELTZ and Elliot Management Services Company, Inc., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
G. Ware Cornell, Jr., G. Ware Cornell, Jr., P.A., Ft. Lauderdale, FL, for Plaintiff.
Marty L. Steinberg, Marilyn J. Holifield, Thomas H. Loffredo, Holland & Knight, Miami, Florida, for Defendants.
ORDER OF DISMISSAL WITH PREJUDICE BASED ON FABRICATION OF EVIDENCE, PERJURY AND OBSTRUCTION OF JUSTICE
THIS CAUSE came before the Court upon Defendants Nelson Peltz and Elliot Management Services Company, Inc.'s Motions to Dismiss and for Sanctions due to fabrication of evidence, perjury and obstruction of justice by Plaintiff Maria Vargas, and third party Defendant, Gerardo Vargas. After consideration of the Motions, response thereto, and the pertinent portions of the record, as well as an evidentiary hearing and argument of counsel on March 16, 1995, the Court enters the following Order, dismissing this action with prejudice for the reasons set forth herein.
This action was commenced on January 20, 1994 by Plaintiff and her husband Gerardo Vargas, ("Vargas"), against Elliot Management Services Company, Inc., ("Elliot Management"), and one of Elliot Management's officers and directors, Nelson Peltz. Vargas, a butler, and Plaintiff, a maid, were former employees of Elliot Management. In Count I of the complaint, Plaintiff asserted a claim under Title VII of the Civil Rights Act of 1964, as amended, 1991, 42 U.S.C. § 2000e, et seq., alleging sexual harassment through a hostile working environment. In Count II, both Plaintiff and Vargas asserted claims for Title VII retaliation against Peltz and Elliot Management, alleging that they were both fired after objecting to the alleged hostile environment. Plaintiff also asserted common law claims for assault and battery and intentional infliction of emotional distress against Peltz and Elliot Management in Counts III and IV of the complaint. Specifically, Plaintiff alleged that she was sexually harassed by Peltz while she worked as a maid for Elliot Management in Peltz's suite at the Waldorf-Astoria Hotel in New York City, New York.
Peltz filed a motion to dismiss all four counts of the complaint for failure to state a cause of action, and Elliot Management challenged the state common law claims.1 Peltz later filed a motion for summary judgment on Plaintiff's Title VII claims on the basis that he was never her "employer" as defined by Title VII. Those motions are presently pending.2
On September 27, 1994, after several months of discovery, Defendants filed two motions with the Court seeking dismissal and sanctions. The specific motions are Defendants' Motion to Dismiss for Fabrication of Evidence, (DE # 162), and Defendants' Motion to Dismiss and to Impose Other Sanctions for Fabrication of Evidence, Perjury, and Obstruction of Justice, (DE # 160). These motions are now fully briefed and are ripe for consideration.
Oral argument and an evidentiary hearing was held before the Court on March 16, 1995. After consideration of the evidence, argument of counsel, and the pertinent portions of the records, the Court makes the following findings of fact and conclusions of law.
During her deposition on May 24, 1994, Plaintiff testified under oath that Defendant Peltz gave her a pair of women's panties in September, 1992 while she worked as a maid for Elliot Management. Plaintiff actually produced a pair of women's panties from her purse during the deposition. Plaintiff further testified that Peltz asked her to pose in the panties in a position similar to that in a photograph he allegedly gave her at the same time. The photograph and panties were marked as Exhibits "69" and "70" respectively to Plaintiff's deposition.
Plaintiff specifically testified at deposition:
Maria Vargas Depo. at 173:21-174:2 (emphasis supplied). According to Maria Vargas, the events took place in September, 1992 while she worked at the Waldorf-Astoria Hotel for Elliot Management:
Maria Vargas Deposition at pp. 11. 174:20-175:1, 175:7-12 (emphasis supplied).3
At her August 30, 1994, deposition continuation, Plaintiff confirmed her previous testimony:
Maria Vargas Deposition at pp. 11. 377:23-378:8.4
Elliot Management investigated the panties and determined by the identifying information on the panties that they were manufactured by Van Mar, Inc., ("Van Mar"), a manufacturer of women's apparel with offices in New York and New Jersey. See Affidavit of Scott Schulman, Executive Vice-President of Van Mar at ¶¶ 2, 4.5 The panties are Van Mar style # 303410, and the fabric is designated by Van Mar as # 3410, "Josey's Flower Jacquard/Ivory". Id. at ¶¶ 4, 7. Van Mar records attached to Schulman's affidavit, as well as Schulman's personal knowledge of the panties, establish that the only time which this particular panty style was received by Van Mar and subsequently distributed exclusively through Target stores in the United States was after November 10, 1993. Id. at ¶ 9, and documents attached thereto.6
It is therefore undisputed that Plaintiff could not have received the panties from Peltz in September, 1992 since those panties were not even sold by the manufacturer — Van Mar, Inc. — until November, 1993, more than one year later. Plaintiff's testimony cannot be reconciled with this undisputed evidence presented by Elliot Management. The Court finds that Plaintiff lied and presented false evidence when she introduced the women's panties at her May 24, 1994 deposition, Exhibit 70, and offered the descriptive testimony described above under oath in support of her claims of sexual harassment.7
In response to Elliot Management's evidence, Plaintiff attempted to narrowly read the Van Mar affidavit to imply that even though the panties were not available in the United States, they may have been available elsewhere in the world. In response to this speculative argument, Elliot Management presented the Supplemental Affidavit of Scott Schulman of Van Mar. Schulman's supplemental affidavit testimony makes clear that the panties were not available anywhere in the world until November, 1993, over one year after the date Plaintiff falsely alleged that Peltz gave them to her.
Even evidence obtained by Plaintiff's own counsel established that Plaintiff's introduction of the panties as evidence of sexual harassment was false. Plaintiff's investigator — Francis G. Knight of Asian Security and Investigation Services, Ltd.8 — sent a letter to Van Mar (UK) Ltd., Van Mar's Hong Kong representative, on November 8, 1994 purportedly to investigate Elliot Management's evidence that Plaintiff's claims about the panties were false. The Knight letter listed four (4) questions to Van Mar (UK), Ltd. Each and every one of the four answers confirms what Elliot Management itself established through evidence received from Van Mar: the panties were only shipped to the United States and were not available anywhere else in the world prior to November 10, 1993 when they were first shipped to the United States. But most importantly, the panties were not even manufactured until "a month and a half before Nov. 10, 1993", still well over one year after Plaintiff alleges she received the panties from Peltz. The panties were not shipped anywhere but the United States, not available anywhere other than the United States until after November 10, 1993, and were not even manufactured until more than one year after Plaintiff alleges she received them.9
Moreover, in an effort to determine if the panties evidence was recently manufactured, Plaintiff was questioned at deposition as to whether anyone other than she and her husband had seen the panties, and testified under oath that Plaintiff's prior counsel, James Green, Esq., had been shown the panties. Plaintiff was also asked to explain the absence of any reference to the panties in her EEOC complaint, and in two handwritten letters which described her allegations, one of which was actually filed with the EEOC. Plaintiff testified that her prior attorney, Mr. Green, had asked Plaintiff not to mention the existence of the panties in her matter before the Equal Employment Opportunity Commission, ("EEOC"). In response to Rule 31 written deposition questions served by Elliot Management, however, Mr. Green denied under oath that he had ever seen the panties, was ever apprised of the panties evidence, or that he ever instructed Plaintiff not to disclose the panties evidence to the EEOC. Based upon the evidence presented by Elliot Management, the Court finds that Plaintiff's presentation of the panties as evidence in this case was entirely fabricated, and her supporting testimony utterly false.
On May 20, 1994, Plaintiff filed an Ex Parte Emergency Motion for Temporary Restraining Order and for Preliminary...
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