Employer may cross-examine employee at trial about lies

Where an employee lied about her education history on her resume and during her deposition, her former employer may cross-examine her about those falsehoods at trial. Although the employee argued the after-acquired evidence was moot because she did not seek reinstatement or front pay, the falsehoods were probative of her character for truthfulness.

Background

In March 2019, Joyce Flores began work as a dental hygienist at Virginia Department of Corrections, or VDOC’s, Augusta Correctional Center, or ACC. On July 17, 2019, Flores went through a standard security scan to enter ACC. The scan produced an “abnormal image” displaying an object visible in Flores’ lower body cavity. VDOC employees believed Flores might be smuggling contraband into the facility, but Flores contends that the object was a tampon.

Later, VDOC subjected Flores to a second scan, which did not show the same object. Flores explains that she had replaced her tampon with tissue paper after using the restroom. Flores then inserted a tampon and was scanned a third time. Approximately two weeks later, the warden of ACC terminated Flores’ employment.

Flores filed this suit against VDOC alleging unlawful termination under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. Before the court are motions in limine filed by both Flores and VDOC.

Flores’ motion

Flores moves to “exclude evidence on defendant’s after-acquired evidence affirmative defense,” which VDOC asserted in an amended answer after discovering that Flores “inaccurately stated her participation in a PhD program in her employment application materials” and during her first deposition in this case.

The after-acquired evidence defense will generally render reinstatement and front pay inappropriate and can cut off back-pay damages at the day of discovery of the evidence. Flores explains that she does not seek reinstatement or front pay, and the period she seeks back pay ends approximately eight months prior to the discovery date of this evidence. Therefore, the defense is likely moot.

However Flores’s material misrepresentation on her resume and in her deposition clearly fall within the purview of Rule 608(b). These falsehoods are probative of Flores’s character for truthfulness, and defense counsel is permitted to cross-examine Flores on them.

Finally, VDOC may introduce extrinsic evidence under Rule 608(b). However, the court notes there may be other bars to the introduction of this extrinsic evidence. Most notably, “[i]f the witness has admitted to the specific instances of conduct, documentary evidence is cumulative if it merely verifies what the witness has already conceded.” And, of course, Rule 403 can also be grounds for exclusion.

VDOC motions

In September 2018, VDOC issued a proposed policy memo advising that “offender visitors shall be notified that the use of tampons or menstrual cup products are no longer permitted to be worn during visitation.” In response to public backlash over the policy, VDOC made statements that “body scanners cannot differentiate between tampons/menstrual cups or other contraband in a body cavity.”

VDOC moves to exclude “any reference of the proposed policy and the related documents plaintiff identified [in her pretrial exhibit disclosures],” arguing the policy is irrelevant, or, alternatively, the danger of unfair prejudice, misleading the jury and confusing the issues substantially outweighs any probative value pursuant to Rule 403. VDOC also moves to exclude to exclude two letters and three newspaper articles related to the September 2018 policy banning visitors from wearing tampons.

The court finds that the statements by VDOC officials regarding the scanner technology are admissible, but the policy banning visitors from wearing tampons is not. The two letters and three newspaper articles that are the subject of VDOC’s second motion in limine are even more far afield. The court need not address concerns that these documents are hearsay because they are not relevant.

VDOC also moves to exclude a FOIA request made by Flores for copies of body scans of Flores, and the VDOC response that no such scans exist. Flores argues that the FOIA request and response provide a time marker to show that the scans did exist at some point. Flores argues that whether the FOIA request and response are used as a time mark or support a spoliation instruction, they are relevant and admissible.

The court agrees with Flores that the FOIA request and response are relevant and admissible. Further, the FOIA response is admissible as a statement by a party opponent.

Flores’ motion in limine denied. VDOC’s motions in limine granted in part, denied in part.

Flores v. Virginia Department of Corrections, Case No. 5:20-cv-00087, Aug. 11, 2022. WDVA at Harrisonburg (Dillon). VLW 022-3-338. 7 pp.