Tomasini v. United States Postal Serv.

Full title: ORLANDO GONZALEZ TOMASINI, Plaintiff, v. UNITED STATES POSTAL SERVICE, et…

Court: United States District Court, District of Puerto Rico

Date published: May 2, 2024

CIVIL 17-1552 (MEL) (D.P.R. May. 2, 2024)

Opinion

CIVIL 17-1552 (MEL)

05-02-2024

ORLANDO GONZALEZ TOMASINI, Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.

Marcos E. Lopez, U.S. Magistrate Judge

OPINION & ORDER

Marcos E. Lopez, U.S. Magistrate Judge

On December 17, 2018 Plaintiff Orlando Gonzalez Tomasini ("Plaintiff) filed an amended complaint against the United States Postal Service and its Postmaster General in his official capacity (collectively 'Defendants" or "USPS"). ECF No. 28. In his complaint, Plaintiff alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-c et seq. as amended by the Civil Rights Act of 1991, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Rehabilitation Act, 29 U.S.C. § 791 et seq., the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and tort under 31 L.P.R.A. §§5141, 5142 (collectively "the federal lawsuit" or "the federal case"). Various rulings on dispositive motions have trimmed down the remaining causes of action. See ECF Nos. 46, 159, 249. As it stands, Plaintiff alleges that his employer, USPS, subjected him hostile work environment disability discrimination under the Rehabilitation Act; to retaliation in violation of the Rehabilitation Act, ADEA, and FMLA; and interference with his FMLA substantive rights. Now pending before the court is a request by Defendants to dismiss Plaintiff's second amended complaint in its entirety for Plaintiff having committed a fraud upon the court. ECF Nos. 262, 295. Specifically, USPS claims that Plaintiff engaged in witness tampering during a phone call that transpired a week before trial which Plaintiff shared with his ex-wife Juliette Irizarry ("Ms. Irizarry") who is a defense witness in the above-captioned civil action. ECF Nos. 262, 295.

On July 19, 2022 the attorneys for the parties met with the court for a pretrial and settlement conference. ECF No. 267. During the pretrial and settlement conference, Defense counsel informed the court and Plaintiffs counsel that Ms. Irizarry would be traveling from Virginia to Puerto Rico to testify at trial. The pretrial and settlement conference began at 4:08 PM and concluded at 6:49 PM. ECF No. 267. The following day, on July 20, 2022, USPS filed a motion alleging that after Plaintiff heard from his attorney that Ms. Irizarry would travel to Puerto Rico to testify at the federal trial, Plaintiff had shared a phone call with Ms. Irizarry in which Plaintiff had "corruptly" attempted to persuade Ms. Irizarry not to come to testify in these federal proceedings. ECF No. 262 at 3. In support of their motion, USPS submitted a recording that Ms. Irizany made of the phone conversation and which includes recorded statements made by Plaintiff which Defendants argue amount to witness tampering. Defendants subsequently filed a transcript and certified translation of the phone call recording. ECF No. 266-1.

On the basis of the recording and transcript, the court ordered that the trial scheduled to begin on July 26,2022 be vacated and that an evidentiary hearing on this matter be held instead. ECF No. 275. The court also required that Ms. Irizarry, who resides in Virginia, testify in person at the hearing. ECF No. 275 at 4. The court held an evidentiary hearing on whether Plaintiff engaged in witness tampering on August 1 through August 3, 2022. ECF Nos. 285, 286, 289. Defendants called three witnesses who appeared in person and testified at the evidentiary hearing: Plaintiff Orlando Gonzalez Tomasini, Ms. Irizarry, and social worker Angelica Alvira Velazquez ("Ms. Alvira"). ECF Nos. 285, 286, 289; ECF No. 301 at 12-13, 50. Plaintiff did not present any witnesses. At the conclusion of the evidentiary hearing, the court heard legal arguments and granted the parties leave to file supplemental briefs addressing various legal issues. ECF No. 302 at 172-73. Both parties accordingly filed supplemental briefs on August 17, 2022. ECF Nos. 295,296.

I. The Admissibility of the Recobded Telephone Conversation of July 19, 2022

It is not disputed that on July 19, 2022 Ms. Irizarry and Plaintiff had a telephone conversation, discussed in greater detail later in the opinion and order, in which Plaintiff began asking Ms. Irizarry whether she was going to testify in the federal case. ECF No. 300 at 52. After Plaintiff asked that question, it is undisputed that Ms. Irizarry began recording the telephone conversation without notifying him that she was recording their conversation, and thus, without Plaintiffs consent. ECF No. 300 at 151; ECF No. 301 at 706. The recording of the phone call on July 19, 2022 was introduced at the hearing that began on July 26, 2022 as evidence of the statements which were made during that phone call. As a threshold matter, Plaintiff argues that the phone recording is inadmissible as evidence because the recording violated the Constitution and laws of Puerto Rico. ECF No. 296 at 12. The court therefore turns to whether the recording and the evidence which arose from the recording is admissible as evidence.

The Federal Wiretap Act, known officially as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C §§ 2510-2522, operates to "(1) protect[ ] the privacy of wire and oral communications, and (2) delineat[e] on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized." In re HIPAA Subpoena. 961 F.3d 59, 64-65 (1st Cir. 2020) (citing United States v. Cartagena. 593 F.3d 104, 108 n.1 (1st Cir. 2010); Gelbard v. United States, 408 U.S. 41, 48 (1972)). To "intercept" a communication under the Federal Wiretap Act "means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4). This definition applies to telephone conversations. Stewart v. City of Oklahoma City, 47 F.4th 1125, 1134-35 (10th Cir. 2022).

The Federal Wiretap Act, 18 U.S .C. § 2511 (2)(d) authorizes one-party consent to record a conversation "where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception" except when the "communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." 18 U.S.C. § 2511 (2) (d). When a communication was intercepted in violation of the Federal Wiretap Act, 18 U.S.C. §2515, provides:

no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court ... or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

18 U.S.C. § 2515; In re HIPAA Subpoena. 961 F.3d at 64-65 ("Title m further prohibits the subsequent use or disclosure of unlawfully intercepted communications, as well as their use as evidence ...."). The party who seeks to use § 2515 to protect against the use in evidence of an allegedly unlawful intercepted communication bears the burden of proving that a particular communication was intercepted in violation of the Federal Wiretap Act. In re HIPAA Subpoena, 961 F.3dat65. Consistent with this court's prior pronouncements regarding recorded telephone conversations, Ms. Irizarry's recording need not be excluded from evidence under the Federal

Wiretap Act because Ms. Irizarry did not make the recording with the purpose of committing any crime or tort when she recorded her conversation with Plaintiff.

First, Ms. Irizarry's recording was clearly not made with the purpose of committing a crime or tort under Virginia State law because Virginia allows recordings with one party's consent. Virginia statutory law provides that "[i]t shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." VA Code Ann. § 19.2-62(B)2. The Virginia state statutes authorize "a civil cause of action" by a "person whose wire, electronic, or oral communication is intercepted, disclosed, or used in violation of this chapter[.]" VA Code Ann. § 19.2-69. In this case, Ms. Irizany was a party to the communication with the Plaintiff which she recorded, and her consent to the recording means that she did not incur in any violation of Virginia's statutory wiretap provisions.

Plaintiff, however, argues that Ms. Irizarry violated Puerto Rico law and violated his privacy rights under the Puerto Rico Constitution, and therefore the recording should be excluded from evidence. ECF No. 296 at 12. Plaintiff cites the Puerto Rico Penal Code, 33 L.P.R.A § 2160, which reads:

No party to a telephone communication, nor any other person foreign thereto, shall record any telephone communication by means of any mechanical procedure or device, or permit any other person to listen in on such communication by means of an extension phone or otherwise without the express consent of all parties to such telephone communication.

33 L.P.R.A. § 2160. However, even assuming that Ms. Irizarry's recording of the conversation at issue in this case had the effect of violating a provision of Puerto Rico law, the question of a recording's legality for purposes of the Federal Wiretap Act "is determined by the purpose for which the interception is made." Vazquez-Santos v. ElMundo Broad. Corp., 283 F.Supp.2d 561, 566 (D.P.R. 2003) (quoting United States v. Underbill. 813 F.2d 105, 110 (6th Cir. 1987)) (emphasis added). Accordingly, the legality of the use and disclosure of information gained through the interception depends on whether the person who intercepted the communication did it "for the purpose of committing a criminal or tortious act." Vazquez-Santos. 283 F.Supp.2d at 567. Consequently, the fact that a party "may have violated provisions in the Puerto Rico Constitution and Criminal Code which bar wiretapping or interception does not establish a criminal or tortious 'purpose' within the meaning of the federal [wiretap] statute." Id.

Indeed, courts recognize that a person may have several different purposes for recording a phone conversation without such purpose being criminal or tortious. For example, there is precedent which "has clearly established that 'when the purpose of an interception is to make or preserve an accurate record of a conversation in order to prevent future distortions by a participant, the interception is legal' ... even if 'you want to use the recording in evidence.'" Betancourt v. Nippy, Inc., 137 F.Supp.2d 27, 33 (D.P.R. 2001) (citing Underhill. 813 F.2d at 105; Moore v. Telfon Communications Corp., 589 F.2d 959, 965 (9th Cir.1978)). For example, in Betancourt v. Nippy, Inc., the defendants in Puerto Rico recorded the plaintiffs in New Jersey without the plaintiffs' knowledge or consent, but the court rested on the fact that the defendants made the recording only with the purpose "to prepare a potential lawsuit against Plaintiffs" and that the "institution of a routine lawsuit" was not an injurious or tortious act. Betancourt, 137 F.Supp.2d at 33-34.

In Meredith v. Gavin, 446 F.2d 794, 798 (8th Cir. 1971), the Eighth Circuit Court of Appeals examined a party's contention that the recording of a conversation for impeachment purposes was an "injurious act." The Eighth Circuit rejected that argument, reasoning that "[a] perfectly legitimate act may often be injurious. A judgment at law can be injurious to the losing party. ... But all parties have a right to proceed under the law and to protect their own rights." Id. at 799. Accordingly, in Meredith the court held that "[a] party to a conversation may testify to that conversation. He may protect himself and his credibility by recording the entire conversation, unless his purpose is evil- that is, to commit or attempt a criminal or tortious act or injure the unsuspecting participant in some vague but illegitimate fashion." Id.

The Ninth Circuit Court of Appeals, in interpreting the Federal Wiretap Act, has stated that:

we cannot believe that Congress intended [the meaning of "injurious act"] to be read to embrace every act which disadvantages the other party to this communication. Such a reading would nullify the exemption created by § 2511(2)(a)(d). Presumably there is some disadvantage in having any conversation intercepted in the absence of consent of all parties. Congress, we believe, intended to permit one party to record conversation with another when the recorder is acting 'out of a legitimate desire to protect himself.'"

Moore. 589 F.2d at 966. Therefore, the Ninth Circuit aligned itself with the Eighth Circuit's view in Meredith that "the conduct Congress intended to prohibit was the 'interception by a party to the conversation with an intent to use that interception against the non-consenting party in some harmful way and in a manner in which the offending party had no right to proceed.'" Id. (citing Meredith. 446 F.2d at 799).

Ms. Irizarry clearly intercepted a communication under the meaning of the Federal Wiretap Act because she used an electronic device-a cell phone-to acquire and record the contents of an oral telephone conversation that she had with Plaintiff. See 18 U.S.C. § 2510(4). However, the evidence convincingly shows, as discussed in further detail below, that Ms. Irizarry recorded the conversation with Plaintiff not with a criminal or tortious purpose, but from a desire to protect herself from Plaintiff s attempt to induce and pressure her to not testify in this federal lawsuit. Ms. Irizarry explained at the evidentiary hearing that she only decided to record Plaintiff during the phone call of July 19, 2022 when Plaintiff brought up the issue of whether she was going to testify in the federal lawsuit. ECF No. 301 at 30. Ms. Irizarry described how by the time she decided to record that conversation, Plaintiff had raised the issue of her not testifying on several prior occasions and that she "felt intimidated" and was fearful of the impact her testimony could have in her custody dispute regarding her son [Redacted] with Plaintiff. ECF No. 301 at 25, 28.

While it cannot be doubted that Plaintiff feels that this recording was injurious to him because he now faces potentially severe sanctions, his injury was not the result of criminal or tortious intent. The evidence indicates that Ms. Irizarry's act of recording this conversation was an attempt to protect herself from any reprisal that Plaintiff could employe in the custody dispute as a result of Ms. Irizarry testifying in this case. Furthermore, Ms. Irizarry explained in her testimony that she recorded the conversation so she would be able to "prove" Plaintiffs questions regarding her testimony at the federal trial. ECF No. 301 at 77. Her recording therefore served the valid function of preserving an accurate record of a conversation of which contents would be the subject of conflicting testimony and potential distortions by the participants. For the foregoing reasons, it is clear that Ms. Irizarry's recording of the phone call in question need not be excluded from evidence under the Federal Wiretap Act because the recording was not made with the purpose of committing any criminal or tortious act.

Finally, even if the recording were inadmissible, Plaintiff, Mr. Gonzalez Tomasini, admitted at the evidentiary hearing that he made the recorded statements at issue. Plaintiff does dispute whether the recording Ms. Irizarry made was recorded from the beginning of the conversation, and thus argues that it was incomplete. He also argues that those recorded statements fail to amount to witness tampering or an attempt to tamper with a witness. As such, the court may make the findings below and address the parties' arguments on the basis of testimony and other evidence introduced at the evidentiary hearing and need not rely on the recording itself.

II. Findings of Fact & Credibility Determinations

A. Background of Plaintiff & Ms. Irizarry's Relationship

Plaintiff and Ms. Irizarry were married in October of 2012 and began living together with Ms. Irizarry's two children shortly after the marriage. ECF No. 300 at 23, 163. Plaintiff and Ms. Irizarry had a son together named [Redacted] who was born in [Redacted] and was seven. years old at the time of the evidentiary hearing [Redacted] ECF No. 300 at 24, 39. When Hurricane Maria struck Puerto Rico in September 2017, Ms. Irizarry moved to Miami with [Redacted] to be with her parents and live separately from Plaintiff. ECF No. 300 at 26-27.

In April 2018, Ms. Irizarry filed for a protective order in Florida against Plaintiff following an "incident" which involved Ms. hizarry's [Redacted] Plaintiff s [Redacted] ECF No. 28. Plaintiff and Ms, Irizarry dispute the nature of the "incident." Plaintiff contends that a problem arose [Redacted] Puerto Rico and discovered that [Redacted] was "selling drugs and having sex with a friend," which he reported to Ms. Irizarry. ECFNo. 300 at 28. Plaintiff testified that upon hearing this information from him, Ms. Irizarry became upset and did not want to believe Plaintiff. ECF No. 300 at 120. Ms. Irizarry, however, testified that [Redacted] told her that Plaintiff "had been committing lascivious acts against [Redacted] since [Redacted] years old. ECF No. 300 at 200.

In April 2018, Plaintiff called the police in Miami, Florida, because he had not heard from Ms. Irizarry or his son for a week when Ms. Irizarry and [Redacted] were living in Florida. ECF No. 3 00 at 121. During that phone call, Plaintiff learned of a criminal complaint filed against him for lascivious conduct toward [Redacted] in Florida. ECF No. 300 at 28-29, 123. Around the same time that the allegations of lascivious acts arose in Florida during the Spring of 2018, Ms. Irizarry filed for divorce from Plaintiff. ECF No. 300 at 27. Plaintiff also testified that he filed for divorce in Puerto Rico against Ms. Irizarry in August 2018. ECF No. 300 at 124. Ajudgmentof divorce for Plaintiff and Ms. Irizarry was entered on January 2, 2019, ECF No. 3 00 at 27, 125. In May 2019, an incident report was also filed with the Puerto Rico Police Department against Plaintiff for lascivious acts against [Redacted] (Hereinafter "thePuerto Rico criminal case"). ECF No. 300 at 29-30; Exhibit I, ECF No. 290-7 at 3-4.

According to Plaintiff, as a result of a protective order which Ms. Irizarry obtained against Plaintiff in Florida, he was unable to speak to [Redacted] from May through August of 2018. ECF No. 300 at 124,203. Ms. Irizarry explained that after August 2018 she moved to Virginia, where she then obtained another protective order against Plaintiff which lasted for two years. ECF No. 300 at 203. Ms. Irizarry acknowledges that the protective orders kept Plaintiff from communicating with his son [Redacted] 2018 and 2019. ECF No. 301 at 144-45. Eventually, Plaintiff was only able to see [Redacted] under supervision for one hour, and he hired attorneys in Virginia for the custody matter and to attempt that the custody dispute be decided within the jurisdiction of Puerto Rico. ECF No. 300 at 134-135. Ms. Alvira, the social worker in Puerto Rico who was eventually assigned to Plaintiff and Ms. Irizarry's custody case, also confirmed that visits between Plaintiff and his son had ceased due to protective orders between 2018 and 2021 and until a court in Puerto Rico ordered that the visits resume through videoconference. ECF No. 301 at 169-70.

B. The Custody Litigation

Following their divorce, Plaintiff and Ms. Irizarry began a custody dispute in January 2019 over their son [Redacted], in which both Plaintiff and Ms. Irizarry sought full custody of the child. ECF No. 300 at 24, 26. The child custody case was filed by Plaintiff in 2019, and Plaintiff requested sole custody for [Redacted] because he alleged that Ms. Irizarry was neglecting the child. ECF No. 301 at 159-160. In 2020 and 2021, and at the time of the evidentiary hearing held in the case at bar in August 2022, the custody dispute had not been resolved, but Ms. Irizarry and Plaintiff had reached a "temporary child custody arrangement" for [Redacted] ECF No. 300 at 24, 136. The temporary child custody agreement permitted [Redacted] to live with Ms. Irizarry. ECF No. 300 at 125; ECF No. 301 at 169-70. As part of the temporary child custody agreement, Ms. Irizarry had to allow Plaintiff to have daily videoconference calls with his son, [Redacted] ECF No. 300 at 38, 135. Plaintiff and Ms. Irizarry were also required to communicate through WhatsApp and the temporary custody arrangement provided that the family court could request a copy of those WhatsApp communications should a controversy arise. ECF No. 301 at 170-71. At the time of the evidentiary hearing in August, 2022, Ms. Irizarry testified that she was still seeking sole custody of [Redacted] and that she likewise understood Plaintiff to be seeking "[t]he absolute custody of his son." ECF No. 301 at 145, 150.

On May 29,2021, Ms. Irizarry had her first meeting regarding the custody dispute with social worker Ms. Alvira. ECF No. 302 at 31-32; Exhibit S-2; ECF No. 292-1. Following her interview with Ms. Irizarry, Ms. Alvira also had an interview with Plaintiff during which Plaintiff informed Ms. Alvira that he had a "pending case regarding an issue with the Post Office[.]" ECF No. 302 at 36. Ms. Alvira told Plaintiff that the issue of child custody had "nothing to do with whatever matters he had in litigation.. . with the Post Office." ECF No. 302 at 36. Ms. Alvira characterized Plaintiff and Ms. Irizarry's relationship "at the beginning" as "conflictive and of little communication." ECF No. 301 at 32, 169. C. Negotiations for a Permanent Custody Agreement

On April 22, 2022, while visiting [Redacted] in Virginia, Plaintiff asked Ms. Irizarry if she was interested in reconciling their marriage. ECF No. 301 at 10. However, Ms. Irizarry testified that she only wanted a joint custody agreement because her "greatest fear is to have my child taken away from me." ECF No. 301 at 11. At some point during his visit, Plaintiff also raised the prospect with Ms. Irizarry of coming to an "agreement" regarding joint custody of [Redacted] and Ms. Irizarry agreed to work toward coming to a joint custody agreement. ECF No. 301 at 55. Such negotiations began at some point between April 22, 2022 and May 10, 2022.

On May 10, 2022, Plaintiff called social worker Ms. Alvira and informed her that he and Ms. Irizarry had spent time together for [Redacted]'s birthday, and Ms. Alvira noted that the communication between Plaintiff and Ms. Irizarry had "improved." ECF No. 302 at 44; Exhibit S-10, ECF No. 292-9 at 1. Plaintiff, however, told Ms. Alvira in the phone call that Ms. Irizarry would testify against him in his case against USPS. ECF No. 302 at 43-44; Exhibit S-10, ECF No. 292-9 at 1.

At the evidentiary hearing, Plaintiff testified that on various occasions Ms. Irizarry would interrupt his videoconference calls with his son in order to ask about and talk about the federal case. ECF No. 300 at 39-40. According to Plaintiff, Ms. Irizarry would interrupt the calls to tell him "that she was not going to come" for the federal case, and Plaintiff told her to "put it in writing" so he could consult with his attorney. ECF No. 3 00 at 151. Later in the evidentiary hearing, however, Plaintiff backpedaled and denied that he asked Ms. Irizarry to put her assurance in writing that she would not testify in the federal case. ECF No. 300 at 155.

Ms. Irizarry, on the other hand, testified that she never interrupted Plaintiffs videoconference sessions with [Redacted] to ask about the federal case. ECF No. 301 at 43. To the contrary, Ms. Irizarry testified that after April 22, 2022, when Plaintiff would be talking to [Redacted] via videoconference, Plaintiff would ask [Redacted] to "call you mom, I need to ask her a question" and thereafter would ask what Ms. Irizarry knew about developments in the federal case. ECF No. 301 at 42-43. Ms. Irizarry described how Plaintiff would take "the opportunity whenever I went into the room" with [Redacted] to ask whether she was coming to testify in the federal lawsuit. ECF No. 301 at 42-43. Ms. Irizarry said that she "avoided those questions" explaining that she believed that her answers could have an impact on her custody dispute with Plaintiff. ECF No. 301 at 44. Ms. Irizarry stated that she never reported these phone calls to the attorneys representing USPS because she didnot have contact with them until after she had been subpoenaed months later on June 27, 2022. ECF No. 3 01 at 46-47. However, even after she had been subpoenaed, Ms. Irizarry testified that Plaintiff continued to ask, albeit "not directly" whether she was coming to testify in the federal proceedings. ECF No. 301 at 47-48.

The testimony by both Plaintiff and Ms. Irizarry shows that they discussed the issue of Ms. Irizarry's testimony in the federal case against USPS over videoconference on various occasions in late April 2022 and during May 2022. However, Plaintiffs assertion that it was Ms. Irizarry who would purposefully interrupt Plaintiffs videoconference calls with his son to raise the issue of his federal suit is not credible. Ms. Irizarry had no reason to raise the subject of Plaintiffs lawsuit against USPS during Plaintiffs videoconference calls with his son. Ms. Irizarry is not a party in Plaintiffs case against USPS and she would have had little interest, if any, in raising the topic to Plaintiff. As Ms. Irizarry testified, for Ms. Irizarry to raise the issue of her testimony in the federal trial could have jeopardized the agreement that she and Plaintiff were negotiating because it could potentially upset Plaintiff. On the other hand, Plaintiff had a strong interest in discussing the federal case to Ms. Irizarry, particularly in an attempt to persuade her not to testify so as to prevent the introduction of damaging evidence against him in a trial where the Plaintiff hopes to recover a substantial sum in damages. See ECF No. 28 at 35. Furthermore, based on Plaintiffs testimony, it was during one of these videoconference conversations that Plaintiff first suggested that Ms. Irizarry not coming to testify be "put in writing" for him to confer with his attorneys. As such, in April and May 2022, Plaintiff was seeking assurances that Ms. Irizarry would not testify in his federal case in connection to the custody discussions between the couple. That this issue had already been raised and discussed in May 2022 is further confirmed in evidence from Plaintiff and Ms. Irizarry's WhatsApp conversation on May 26, 2022-discussed at length further below.

D. Ms. Irizarry's Assurances to Social Worker Ms. Alvira

This chain of events and Plaintiff and Ms. Irizarry's discussions about her testimony in the instant federal case were also confirmed by Ms. Irizarry's description of a virtual meeting which she held with social worker Ms. Alvira on May 24, 2022. ECF No. 301 at 12-13, 50. During that meeting, Ms. Irizarry told Ms. Alvira that she did not know anything about the status of Plaintiff s federal lawsuit because "nobody had communicated with me, and the truth of the matter was that I didn't have any interest in continuing having to do anything with the case." ECF No. 301 at 12-13, 50.¹ Ms. Irizarry explained that during that conversation on May 24, 2022 she told Ms. Alvira that she would not come to testify in Plaintiffs federal lawsuit. ECF No. 301 at 50. Ms. Irizarry also described how she informed Ms. Alvira that [Redacted] had decided not to proceed with the criminal case against Plaintiff after [Redacted] had consulted with a psychologist. ECF No. 301 at 13-14.

1 Ms. Mzany first testified that the meeting with Ms. Alvira where she made the above statement was on May 24, 2022. ECF No. 301 at 9. However, in response to a question by counsel for USPS, Ms. Irizarry appeared to agree that the meeting was on January 20, 2022. ECF No. 301 at 12-13. ("Q[D]id you have a virtual meeting with Ms. Angelica Alvira on January 20, 2022? A. That's correct, at 9:30 in the morning."). On cross examination, Ms. Irizarry later testified four times that the date of the meeting with Ms. Alvira in which she told Ms. Alvira that she did not want to testify in the federal proceedings was May 24, 2022. ECF No. 301 at 49, 50, 70, 73. As such, the court finds that the date of the virtual meeting was May 24, 2022 and not on January 20, 2022.

Ms. Alvira's notes, the admissibility of which was stipulated by the parties, and her testimony are consistent with Ms. Irizarry's recollection of the events. ECF No. 302 at 45; Exhibit S-4; ECF No. 292-3. Ms. Alvira testified and her notes reflect that during her virtual meeting with Ms. Irizarry on May 24, 2022, Ms. Irizarry told Ms. Alvira that "she is willing to reach agreements" and that "regarding the trial with the Post Office against the [Plaintiff], she will not attend. She will not testify against him. She went to an interview, and verbalized what she knew on the matter." ECF No. 302 at 46; Exhibit S -4; ECF No. 292-3 at 1.² Ms. Alvira also recalled that Ms. Mzarry had told her that she wished to desist with the Puerto Rico criminal case against Plaintiff. ECF No. 302 at 49. As a result of conversations which Ms. Alvira had with Ms. Mzarry, Ms. Alvira then communicated to Plaintiff that Ms. Irizarry was not going to come to testify in the federal case and that she was going to desist in the criminal case. ECF No. 302 at 102.

2 Presumably, the "interview" to which Ms. Irizarry alluded was a reference to her deposition on March 21, 2021. Ms. Irizarry later testified that because she had previously been deposed, she "believe[d] that with what I had declared back then over Zoom [videoconferencing software], I did not have to do anything else, I did not have to come back." ECF No. 301 at 49, 70.

In sum, as of May 2022 Ms, Irizarry did not want to testify in Plaintiff s federal proceedings and she believed that her role as a witness had concluded in the federal case. At that point, however, Ms. Irizarry had not yet been subpoenaed and had not been in contact with the attorneys for USPS in order to coordinate her testimony for trial. Second, Ms. Irizarry told Ms. Alvira on May 24,2022 that she and [Redacted] wished to desist from the criminal case in Puerto Rico against Plaintiff.

E. Plaintiffs WhatsApp Conversation with Ms. Irizarry on May 26, 2022

Two days later, on May 26, 2022, Plaintiff and Ms. Irizarry shared a conversation through the WhatsApp messaging application wherein they discussed a potential permanent custody agreement. In the string of messages from May 26, 2022, Ms. Irizarry tells Plaintiff that she "would like for us to talk to end the topic about [[Redacted]s] custody[.]" ECF No. 295-7 at 4. In responding to Ms. Irizarry, Plaintiff states, "I agree with you, but there are obstacles that prevent reaching some agreement" and he tells Ms. Irizarry that it was "up to [Ms. Irizarry] to solve them," Exhibit R, ECF No. 295-7 at 5. In response, Ms. Irizarry wrote "if you are referring to the police thing, we decided to leave that there [and] not continue and if you are referring to the federal thing, I already said what I knew[,] I have nothing more to do with it...." Exhibit R, ECF No. 295-7 at 5; see also Plaintiffs testimony at ECF No. 300 at 41, 102.

Ms. Irizarry identified the WhatsApp message exchange from May 26, 2022 as the message wherein Plaintiff told her that there were "obstacles" preventing them from reaching a joint custody agreement. ECF No. 301 at 20-21. Ms. Irizarry explained that she believed desisting from the criminal case against Plaintiff would positively affect her "custody case" for her son [Redacted] because Plaintiff had told her in a WhatsApp message that "there were still things that were pending that needed to be solved, because-before we could reach a custody agreement," ECF No. 301 at 20-21. Following Ms, Irizarry's meeting with the social worker on May 24, 2022 and after her WhatsApp conversation with Plaintiff on May 26, 2022, the psychologist for Ms. hizarry's [Redacted] prepared a written report on June 14, 2022 which was forwarded to the Puerto Rico Police. ECF No. 301 at 14, 20. Ms. Irizarry also testified that she referred to this report during the later phone call on July 19, 2022 with Plaintiff, informing Plaintiff that the report was sent and she called the Puerto Rico police so that the criminal case would be dropped. ECF No. 301 at 34, 73.

Ms. Irizarry also stated that after the May 26, 2022 WhatsApp conversation she "felt intimidated", and she believed that if she testified in the federal lawsuit, it would have "an effect in my custody case, because [Plaintiff] of course let me know clearly with his words that he did not want me to participate here [in federal court]." ECF No. 301 at 25. When pressed to explain when exactly Plaintiff had made it known to her that he did not want her to participate as a witness in his federal lawsuit, Ms. Irizarry stated that Plaintiff had told her through WhatsApp messages or through videoconference "over six times" between May 22, 2022 and July 19, 2022 that he did not want her to participate in the federal civil case at bar. ECF No. 301 at 26.

This WhatsApp message conversation, when combined with the evidence of Plaintiffs behavior before May 26, 2022, supports a finding by clear and convincing evidence that Plaintiff attempted to dissuade Ms. Irizarry from testifying in his federal lawsuit even before the recorded phone conversation of July 19, 2022. First, it confirms that Plaintiff knew about Ms. Irizarry's virtual meeting with Ms. Alvira on May 24, 2022 and that Ms. Alvira had communicated to him that Ms. Irizarry said she would not testify in the federal case and would desist from pursuing the criminal case. Second, it is evident that by May 26, 2022 Plaintiff already considered the Puerto Rico criminal complaint and Ms. Irizarry's role as a witness in the federal lawsuit as "obstacles" to Ms. Irizarry and Plaintiff "reaching some agreement" regarding [Redacted]'s custody. Third, Plaintiff conditioned arriving at a custody agreement on Ms. Irizarry acting to resolve both "obstacles" because "the custody lawyers cannot solve [them] since they have nothing to do with that[.]" ECF No. 295-7 at 5. Fourth, after the WhatsApp conversation of May 26, 2022, Ms. Irizarry took steps in June to persuade state prosecutors to drop Puerto Rico criminal case against Plaintiff and told Plaintiff that she did not want to come and testify in the federal proceedings. Therefore, the evidence is clear that at least by May 26, 2022, while Ms. Irizarry and Plaintiff were negotiating a custody agreement, Plaintiff had conditioned arriving at a custody agreement for [Redacted] on (1) Ms. Irizarry's ability to "solve" the pending Puerto Rico criminal matter and (2) Ms. Irizarry not testifying in the trial in the case at hand. Furthermore, Ms. Irizarry had already begun to conform to Plaintiffs demands by working to drop the criminal case and telling Plaintiff that she would not testify in the federal case.

F. [Redacted]'s Travel to Puerto Rico

Pursuant to the temporary custody arrangement then in place in 2022, a court of the Commonwealth of Puerto Rico ordered that Plaintiff be allowed to take [Redacted] from Virginia to Puerto Rico from June 15, 2022 through the middle of July, 2022. ECF No. 301 at 170. [Redacted] would be with Plaintiff in Puerto Rico during [Redacted]'s "summer recess," but Plaintiff was scheduled to return [Redacted] to Ms. Irizarry in Virginia on July 21, 2022, that is two days after the final pretrial conference and five days before the beginning of the trial in the federal case. ECF No. 300 at 154; ECF No. 301 at 29, 85.

G. Ms. Irizarry's Subpoena for the Federal Trial

On June 27, 2022, Ms. hrizarry received a subpoena at her home to testify in Plaintiffs federal civil case. ECF No. 301 at 26-27. As already discussed above, Ms. Irizarry explained that as late as May of 2022 she still had not heard anything about testifying in the federal trial by the lawyers for USPS. ECF No. 301 at 12. However, Ms. Irizarry had been called by USPS' attorneys on several occasions before receiving the subpoena on June 27, 2022, but she did not respond to those calls because she "was very afraid" and "fearful to come back to the case." ECF No. 301 at 28; She explained that her fear was "the reason why I would not answer the calls [from the attorneys]. That's the reason I was trying to avoid the issue every time [Plaintiff) brought it up, because I know that it has great weight. [Plaintiff] did not want me to be here [in federal court]." ECF No. 301 at 36. Ms. Irizarry feared that if she responded to the calls from the lawyers for USPS, Plaintiff would not reach a joint custody agreement with her, and because she and Plaintiff had already "taken so long" in progressing toward a custody agreement, she did not want to jeopardize the final stages of clinching an agreement. ECF No. 301 at 68-69. In Ms. Irizarry's words, "I was afraid of my testimony, and that that could go against my custody case. I felt very threatened by [Plaintiff]." ECF No. 301 at 28. As a result, Ms. Irizarry stated that she only resumed speaking with the attorneys for USPS after she was subpoenaed on June 27, 2022 and in preparation for testifying in the federal trial regarding Plaintiffs civil claims against USPS. ECF No. 301 at 28.

In sum, until she was subpoenaed on June 27,2022, Ms. Irizarry was not planning on testifying in the federal lawsuit against Plaintiff and would have readily avoided doing so to accede to Plaintiffs demands that she not testify in order to reach a joint custody agreement. It was only once she had been subpoenaed that Ms. Irizarry began preparing to testify in the federal case. Even so, Ms. Irizarry was fearful of testifying because she wanted to come to a joint custody agreement with Plaintiff. Ms. Irizarry therefore also had a motive to conceal from Plaintiff that she had been subpoenaed and would have to appear in the federal case. H. Plaintiffs Statements to Social Worker Ms. Alvira On the same day that Ms. Irizarry had been subpoenaed, June 27, 2022, Plaintiff and his son [Redacted] attended an "in-person follow-up interview" with social worker Ms. Alvira. ECF No. 302 at 57, 64; Exhibit S-9, ECFNo. 292-8 at 1; Exhibit S-l 1, ECFNo. 292-10 at 1. During that interview, Plaintiff told Ms. Alvira that "if an agreement is reached with the mother [Ms. Irizarry], it will be through the attorney and in writing. [Plaintiff] mentioned that the agreement must include that the mother [Ms. Irizarry] will not be a witness at the federal court and in the sexual abuse case." Exhibit S-6; ECF No. 292-5 at 2; Exhibit S-14, ECF No. 292-13 at 2; ECF No. 302 at 66. During that meeting Ms. Alvira also explained to Plaintiff the procedure that he would have to take to file a motion to dismiss with the court handling the custody matter if Plaintiff and Ms. Irizarry were able to come to an agreement. ECF No. 302 at 68. Plaintiff told Ms. Alvira that he needed to speak to his "legal representation" to get "orientation" on including "two clauses" in the custody agreement "that the mother would not be a witness in the federal case here, and also in the sexual abuse case." ECF No. 302 at 68. Ms. Alvira reiterated that Plaintiff "wanted those two points to be very clear." ECF No. 302 at 69. Ms. Alvira stated that to her knowledge no agreement had been reached yet between Plaintiff and Ms. Irizarry, but she was aware that Ms. Irizarry had desisted in pursuing the criminal case against Plaintiff. ECF No. 302 at 71.

On July 8, 2022, Ms. Alvira also conducted a "family dynamic observation" with Plaintiff and his son [Redacted] and recorded notes as to her observations which were admitted into evidence. ECF No. 302 at 78-79; Exhibit S-8, ECF No. 292-7. On that date, Ms. Alvira interviewed [Redacted] alone, and then she spoke with Plaintiff after the evaluation. ECF No. 302 at 80. Ms. Alvira's notes reflect that during that conversation Plaintiff informed her that he would be speaking to his attorney about a custody agreement with Ms. Irizarry, and once again, Plaintiff "indicated that it must be established that the mother [Ms. Irizarry] will not testify against him at the federal court and with respect to [the sexual abuse] case." ECFNo. 302 at 81; Exhibit S-8, ECF No. 292-7 at 4; Exhibit S-15, ECF No. 292-14 at 1.

Therefore, by the time of Plaintiff s meeting on June 27, 2022 with Ms. Alvira, Plaintiff made clear to Ms. Alvira that no custody arrangement would be reached unless Ms. Irizarry agreed to two clauses which provided that she would (1) desist from pursuing the criminal case against him and (2) that she would not testify in Plaintiffs federal case at bar. Plaintiff again told Ms. Alvira on July 8, 2022 that it was a requirement to reach a custody agreement that Ms. Irizarry not testify against him at his federal trial in this case. Plaintiff insisted on this matter, although Ms. Alvira had told Plaintiff on "several occasions" that the custody dispute was not related to his lawsuit against USPS. ECF No. 302 at 92.

I. The July 19,2022 Phone Call & Recording

On July 19, 2022, Plaintiff and Ms. Irizarry shared the phone call that led to the Defendants' instant motion for sanctions. It is undisputed that the phone call occurred on July 19, 2022 after the attorneys for the parties had met in chambers for a pretrial conference which began at 4:08 PM and concluded at 6:49 PM. ECF No. 267. It was Ms. Irizarry who first called Plaintiff in order to coordinate their son [Redacted]'s travel back to Virginia from Puerto Rico on July 21, 2022. ECF No. 300 at 50, 52; ECFNo. 301 at 29. Ms. Irizarry explained that on July 19, 2022, she had not heard anything from Plaintiff or her son [Redacted] since July 17, 2022, so she decided to call Plaintiff in the evening of My 19, 2022. ECF No. 301 at 29. Ms. Mzarry testified that she called and spoke to Plaintiff, asking him to have [Redacted] call her. ECF No. 301 at 30.

The recording of the phone call begins not at the inception of the conversation but with Plaintiff saying to Ms. Mzarry "I'm asking you, because since I, I mentioned it for the agreement." ECF No. 290-10 at 2. Ms. Irizarry responds by asking to what agreement Plaintiff refers. ECF No. 290-10 at 2. Plaintiff does not immediately respond to Ms. hizarry's question, instead explaining "Well, since you mentioned to the social worker that you weren't coming for the federal case, nor for the criminal case, then.... You had mentioned it to her [the social worker], hadn't you?" ECF No. 290-10 at 2. Ms. Irizarry responds that she only said that she "was going to call the prosecutor and all that, because the [criminal] case was still open. And that was already done." ECF No. 290-10 at 2. Plaintiff testified at the hearing that the case to which Ms. Irizarry refers is the criminal investigation regarding the alleged lascivious acts by Plaintiff with [Redacted], and that the prosecutor was going to dismiss the case. ECF No. 300 at 70. In the phone conversation, Plaintiff then tells Ms. Irizarry that the prosecutor had "already called my lawyer that they're going to close it [the criminal case]." ECF No. 290-10 at 2.

After addressing the criminal case, Plaintiff then raises Ms. Irizarry's involvement in the federal case, saying "but what's going on is that the social worker. .. [s]he told me . .. that you had mentioned to her, that you didn't... want to come for the federal case, and that you were going to leave the criminal case there." ECF No. 290-10 at 2. At this point in the phone call Ms. Irizarry admits "Yes, I told her that... she asked me and I told her. 'No, I don't want to continue with any of that. I'm not interested in any of that.'" ECF No. 290-10 at 3. Upon hearing Ms. Irizarry's response, Plaintiff reminds Ms. Irizarry that "you sent it to me once by text as well. So, well, I assumed, well, that's how it is, right?" ECF No. 290-10 at 3. Plaintiff then continued, telling Ms. Irizarry,

And, and I put it as part of our agreement which is going to be stipulated.... That's why I'm asking you, because right now, my attorney just came out of the judge's office. He ... was meeting with the lawyers from the post office and with ... the judge, and they assured him that you were coming next week.

ECF No. 290-10 at 3. Ms. Irizarry then replies by saying "No man. No. That hasn't been settled ... yet." ECF No. 290-10 at 3. Even so, Ms. Irizany then asks Plaintiff, "The part I don't understand is the ... agreement... about the child. What does that have to do with the other [thing]?" ECF No. 290-10 at 3. Plaintiff responds: "You know, what I wanted to know is if it was for sure that you weren't coming. Because if not, I have to talk to, to, to ... [Pause] Because, the thing is, they were going to put that as part of the deal. That's it." ECF No. 290-10 at 4.

Upon hearing that, Ms. Irizarry states that she will call the next day to see "what's going on", but she explained "there are things that... you know, don't depend on me, you know, because ..." ECF No. 290-10 at 4. Before Ms. Irizarry finishes her sentence, Plaintiff asks, "But did they give you a, a subpoena?" ECF No. 290-10 at 4. Ms. Irizany then asks Plaintiff what a subpoena is, to which Plaintiff explains that a subpoena is "a document that. .. even though you're not in the jurisdiction of Puerto Rico,... like 'You have to come here obligatorily'?" ECF No. 290-10 at 4. Ms. Irizarry expresses doubt on the call whether she had received a subpoena, telling Plaintiff that she "received a letter from them" to her "house[.]" ECF No. 290-10 at 4. Plaintiff then tells Ms. Irizany that she has to check the document that was sent her and "[w]hether you're required to come, or whether you're not required to come ... Because it all depends on what you have already told them, whether you accepted that you are going to come." ECF No. 290-10 at 5. Plaintiff then continues to explain how Ms. Irizarry can identify a subpoena before saying,

[A]nd you have to make sure [about] what you're going to say to these people, whether you're coming or not. Understand? . .. Because it's one thing if you hadn't answered it, but it's one thing if you answered them, and you came to an agreement with them. ... You have to see what your commitment with them is.

ECF No. 290-10 at 5. Finally, Ms. Irizarry tells Plaintiff that she will call the lawyers for the USPS "tomorrow, to see what's going on." ECF No. 290-10 at 5. Plaintiff and Ms. Irizarry then concluded the phone conversation. ECF No. 290-10 at 5-6.

III. Analysis

Defendants argue that the above evidence clearly and convincingly shows that Plaintiff obstructed Defendants' ability to mount a defense in the above captioned case by "offering Ms. Irizarry a permanent joint custody agreement that would resolve an acrimonious three-year long custody battle" in exchange for two unrelated acts by Ms. Irizarry. ECF No. 295 at 20. First, Ms. Hzarry would agree not to testify in Plaintiffs federal lawsuit against USPS and second, Ms. Irizarry would withdraw her support for "an open criminal investigation" into allegations of sexual misconduct of Plaintiff with [Redacted] . ECF No. 295 at 20. Defendants also argue that Plaintiff should be sanctioned for "presenting false testimony" when he took the stand and denied the alleged misconduct at issue in the evidentiary hearing. ECF No. 295 at 20-21. In contrast, Plaintiff argues that the evidence clearly and convincingly shows that Plaintiff did not knowingly or willfully intend to tamper with Ms. Irizarry's testimony, and that no harm was done because Ms. Irizarry will testify at the trial in the federal lawsuit and therefore "no testimony has been affected and no evidence has been lost." ECF No. 296 at 1.

A. Legal Standard

A party engages in a "fraud on the court" when that party has "set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Aoude v. Mobil Oil Corp.. 892F.2d 1115, 1118 (IstCir. 1989). A fraud on the court must be demonstrated by clear and convincing evidence. Id. Clear and convincing evidence "is an intermediate standard somewhere between a preponderance of the evidence and proof beyond a reasonable doubt," and has been interpreted to mean "highly probable or reasonably certain or both." United States v. Volungus, 730 F.3d 40, 46 (1st Cir. 2013) (citing Addington v. Texas, 441 U.S. 418, 425, (1979)) (internal quotations omitted); In re Sarafoglou. 345 B.R. 19, 24 (Bankr. D. Mass. 2006).

Many courts have held that witness tampering is a particularly egregious fraud on the court and an abuse of the judicial process. SurfCast, Inc. v. Microsoft Corp., 2014 WL 12726543, *2 (D. Me. Sept. 5, 2014) ("The alleged misconduct at issue here-witness tampering-is, if true, truly egregious and strikes at the heart of the integrity of this proceeding."); Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 782 (7th Cir. 2016) ("But witness tampering is among the most grave abuses of the judicial process, and as such it warrants a substantial sanction."); Torres v. Wells Fargo Bank, 2019 WL 8012686, at *5 (CD. Cal. Dec. 17, 2019) (citing Ramirez, 845 F.3d at 782). A party is culpable of tampering with a witness when it is shown by clear and convincing evidence that they engaged in actions or conduct that had "a reasonable tendency to influence" a witness. Helios Software GMBH v. Root Int'l Distribution Svs., Inc.. 1996 WL 162962, at *1 (N.D. Cal. Apr. 5, 1996). In analyzing whether witness tampering has occurred in a civil case, some district courts have also looked to federal criminal law, specifically citing to 18 U.S.C. § 1512(b) which makes it a crime to "use[ ] intimidation, threaten[ ], or corruptly persuade[ ] another person, or attempt[ ] to do so, or engage[ ] in misleading conduct toward another person, with intent to .. . influence, delay, or prevent the testimony of any person in an official proceeding[.]" See e.g. Torres, 2019 WL 8012686, at *5; Helios Software GMBH, 1996 WL 162962, at * 1; Riley v. City of New York, 2015 U.S. Dist. LEXIS 16025, at *22 (E.D.N.Y. Feb. 10, 2015) (all citing 18 U.S.C. § 1512(b)).³ Merely attempting to tamper with a witness is sanctionable and it is not necessary that the offending parly's effort was successful or had its intended effect. Torres, 2019 WL 8012686, at *4 ("Trying improperly to influence a witness is fraud on the court... .") (citing Ty Inc. v. Softbelly's. Inc.. 517 F.3d 494, 498 (7th Cir. 2008) (emphasis in original).

3 However, because 18 U.S.C. 1512(b) is a criminal statute and the Plaintiff is not on trial for having violated 18 U.S.C. 1512(b) in this case, it is notnecessary to rely on the specific elements of this statutory criminal definition in order to make a finding that the Plaintiff attempted to alter or prevent a witnesses' testimony.

Acts which pose a reasonable tendency to influence a witness may manifest themselves as a carrot, such as offering something of value to influence a witness, or as a stick-like promising to retaliate against a witness. Some of the most obvious forms of witness tampering involve a party attempting to bribe or pay money in order to influence a witness. For example, in Ramirez v. T&H Lemont. Inc., the Court of Appeals for the Seventh Circuit upheld a finding of witness tampering when the plaintiff offered a witness money in exchange for favorable testimony for the plaintiff in a discrimination lawsuit. Ramirez. 845 F.3d at 782. Likewise, in Young v. Off, of U.S. Senate Sergeant at Arms, the court found by clear and convincing evidence that a plaintiff tampered with witnesses in her lawsuit alleging sexual harassment when she attempted to bribe two witnesses in exchange for the witnesses providing false testimony. Young v. Off, of U.S. Senate Sergeant at Arms. 217 F.R.D. 61, 67-68 (D.D.C. 2003).

Exerting pressure in order to tamper with a witness is not limited to using threats of violence or fear of physical harm. See e.g. Riley. 2015 U.S. Dist. LEXIS 16025, at *22 ("This statute does not require physical force or threats to support a [finding] of tampering,.. . corrupt influence is sufficient" to show a violation.") (internal quotations omitted). For example, threats regarding employment or financial harm may constitute witness tampering. Torres, 2019 WL 8012686, at *5. In Torres v. Wells Fargo Bank, the plaintiff sent text messages to a witness suggesting that he would take steps to have the witness fired from his job if the witness offered unfavorable testimony in a deposition. Id. at *4. The Torres court concluded that the plaintiffs "undisputed threatening of a witness with financial and employment harm in retaliation for, and in response to, perceived unfavorable deposition testimony is sufficiently egregious sanctionable conduct that requires the dismissal of Torres' claims." Id. at *5. The court also noted that the Plaintiffs conduct, although occurring after the witnesses' deposition, was still wrongful because the threats "in theory, could also affect [the witness's] testimony at trial." Id.

B. Whether Plaintiff Engaged in Witness Tampering

Clear and convincing evidence shows that on multiple occasions Plaintiff engaged in witness tampering, or at a minimum in attempting to do so, by knowingly and willfully exerting pressure on Ms. Irizarry through conditioning a custody agreement for their minor son in exchange for Ms. Irizarry agreeing not to testify in Plaintiffs federal lawsuit against USPS. The evidence shows (1) that Plaintiff and Ms. Irizarry were negotiating a custody agreement; (2) Plaintiff insisted that Ms. Irizarry not testifying in the federal case was a condition of the custody agreement; (3) Ms. Irizarry was intimidated, influenced, and inclined not to testify in order to secure a custody agreement with Plaintiff.

1. Plaintiff Raised Ms. Irizarry's Testimony During the Phone Call

Plaintiff testified that he knew that the trial in his federal case was scheduled to begin on July 26, 2022 and he knew that his attorney was participating in a pretrial conference with the court on July 19, 2022. ECF No. 300 at 46, 47. Plaintiff also acknowledged that after the conclusion of the pretrial and settlement conference at 6:49 PM on July 19, 2022 he "learned that [Ms. Irizarry] was indeed coming for the federal case." ECF No. 300 at 49. Plaintiffs testimony is consistent with the transcript of the recorded phone conversation in which Plaintiff tells Ms. Irizarry that "right now, my attorney just came out of the judge's office. He ... was meeting with the lawyers from the post office and.. . with the judge, and they assured him that you were coming next week." ECF No. ECF No. 290-10 at 3. Plaintiff maintained that at the time of the phone call he was "in a state of confusion, because still here [Ms. Irizarry] was telling me that she was not coming, and my attorney was telling me that she was indeed coming. And I didn't know who to believe." ECF No. 300 at 75. Plaintiff complained at the hearing that Ms. Irizarry made him "believe that she was not coming" and therefore, during the call Ms. Irizarry was "trying to set a trap[.]" ECF No. 300 at 73, 76.

However, it was not Ms. Irizarry who "set a trap" during the call because both Plaintiff and Ms. Irizarry agree that it was Plaintiff who first brought up the issue of Ms. Irizarry testifying in the federal case during the phone call. ECF No. 300 at 52; ECF No. 301 at 67. Plaintiff admits that it was he who asked Ms. Irizarry, "are you sure that you're not coming to Puerto Rico[?]" before Ms. Irizarry began recording. ECF No. 300 at 50, 52. Likewise, Ms. Irizarry described how she only began recording once Plaintiff had asked about her testifying again, and that she did not plan on recording the conversation until Plaintiff brought up the issue of her testimony. ECF No. 301 at 67-68. Ms. Irizarry explained,

[Plaintiff] again asked me if I had received any information, if I had made any decision as to whether or not I was going to come here to testify today. When he- I saw that he was asking me again the question, that's when I decided to record using my corporate phone that was next to me.

ECF No. 301 at 30. Ms. Irizarry explained that she felt "tired again that [Plaintiff] would come again and try to intimidate me, ask me not to come to testify." ECF No. 301 at 30.

2. The Conditions To Reach a Custody "Agreement" or "Deal"

Plaintiff vehemently denies that he conditioned any custody agreement on Ms. Irizarry not testifying and dropping the criminal case, stating "I was not referring to that, because nobody's going to put that in a... At no point would I include that as part of the agreement." ECF No. 300 at 75. Instead, Plaintiff explains that he had sent Ms. Irizarry the "only agreement" that he wanted "via text message in the month of July." ECF No. 300 at 72. He testified that Ms. Irizarry had told him in June that she would talk to her attorney about an agreement and that Plaintiff sent a "proposed agreement" in writing in July after he did not hear from Ms. Irizarry. ECF No. 300 at 77, 78. This "proposed agreement" which Plaintiff allegedly sent in July was not introduced into evidence. However, Plaintiff testified that on July 13, 2022 he wrote a text message to Ms. Irizarry stating that he wanted joint custody of [Redacted] in Virginia and to change jurisdiction of the case to Virginia. ECF No. 300 at 141. Plaintiff testified he never heard from Ms. Irizarry after sending the text, and so "they did not have anything to negotiate, because she never told me what it was that she wanted." ECF No. 300 at 82. Ms. Irizarry conversely stated that she never received a proposed agreement from Plaintiff, and therefore, there was no discussion of terms and none to which Ms. Irizarry could agree. ECF No. 301 at 64-65. However, when asked to what Plaintiff referred in the July 19, 2022 phone call when he mentioned an "agreement" he testified that he was referring to Ms. Irizarry telling him that she "wasn't going to come for the federal case or the criminal case", but he maintained that he "never told her or suggested to her not to come." ECF No. 300 at 71. Plaintiff stated that the agreement about Ms. Irizarry not coming to testify at the federal case and dropping the criminal case was the result of what "she told me and made me believe through manipulation and sweet talk." ECF No. 300 at 71.

Plaintiffs contention that Ms. Irizarry not testifying in the federal case was not a condition to reach a joint custody agreement as to [Redacted], however, is in clear contradiction of the evidence. In the phone call on July 19, 2022, Ms, Irizarry and Plaintiff make at least seven . separate references to an "agreement", "deal", and "agreement. . . about the child" between Plaintiff and Ms. Irizarry. ECF No. 290-10 at 2-A. The evidence presented at the hearing clearly shows that Plaintiff and Ms. Irizarry were actively negotiating a joint custody agreement at the time of the phone call on July 19, 2022, which is the "agreement" or "deal" to which they refer in the phone call. The evidence demonstrates that Plaintiff and Ms. Irizarry had begun negotiations to come to a joint child custody agreement as early as April 22, 2022 and that Plaintiff had raised Ms. Irizarry's testimony in the federal case during conversations via videoconference and text message while the pair was trying to come to an agreement. On May 26, 2022 Plaintiff and Ms. Irizarry shared a WhatsApp conversation during which Plaintiff explicitly referred to "obstacles that prevent reaching some agreement" and Ms. Irizarry understood Plaintiff to be "referring to the police thing, ... to the federal thing .. . ." Exhibit R, ECF No. 295-7 at 5. Plaintiff also told Ms. Irizarry in the WhatsApp exchange from May 26, 2022 that it was "up to [Ms. Irizarry] to solve" the obstacles, and that "the custody lawyers cannot solve [them] since they have nothing to do with that[.]" Exhibit R, ECF No. 295-7 at 5. Even more, social worker Ms. Alvira's testimony revealed that on two separate dates-June 27, 2022 and July 8, 2022-Plaintiff made clear to Ms. Alvira that two conditions were necessary for Plaintiff and Ms. Irizarry to come to a custody agreement: (1) Ms. Irizarry had to desist from the Puerto Rico criminal matter; and (2) Ms. Irizarry would not testify in his federal lawsuit against USPS. This evidence gives clear meaning and context to Plaintiffs statements during the July 19, 2022 phone call where after asking Ms. Irizarry whether she would come to testify, Plaintiff says: (1) "I mentioned that as part of the agreement"; (2) "I put it as part of our agreement, which is going to be stipulated"; and (3) "what I wanted to know is if for sure that you weren't coming. Because if not, I have to talk, to, to, to .. . [Pause] Because the thing is, they were going to put that as part of the deal. That's it." ECF No. 290-10 at 3-4. Plaintiff was clearly alluding to the fact that Ms. Irizarry not testifying was going to be a part of the custody agreement that he and Ms. Wzarry had been negotiating, in accordance with what Plaintiff had been telling Ms. Wzarry and social worker Ms. Alvira for the past several months.

Plaintiff, however, maintains that Ms. Wzarry had deceived him before and during the phone call, making him believe that she would not testify in the federal case. After Plaintiff asked whether she was coming to testify in the phone call on July 19, 2022, Plaintiff stated that Ms. Wzarry had told him that she was not coming to Puerto Rico and instead wanted to spend the remainder of her vacation time with her children. ECF No. 300 at 56-57. Plaintiff also claims that during the phone call, Ms. Wzarry at first denied that she had told the social worker she would not come to testify but later "admitted that she had told the social worker [that she would not testify.]" ECF No. 300 at 75. Plaintiff further explains that because Ms. Wzarry had always told him that she was not coming to testify in the federal case, he "assumed she had not been subpoenaed." ECF No. 300 at 43-44. He adds: "I thought that she had been eliminated as a witness. That was the only reasonable explanation that I had. I was so stupid to believe what she was trying to make me believe, what she made me believe, that she was not coming[.]" ECF No. 300 at 85.

Ms. Wzarry denies that she ever told Plaintiff orally or put it in writing that she was not going to testify in the federal case. ECF No. 301 at 51. However, she admitted on cross examination that "of course I was not going to tell him, you know, during the call on July 19th, that I had received the subpoena, that I was going to come to testify, that I had met with the [attorneys] here in the federal case. I was not going to tell him that." ECF No. 301 at 70. Ms. Wzarry admits that after she had been subpoenaed, she still told Plaintiff during the phone call that she did not know yet whether she would testify. ECF No. 301 at 48. She explained "even in the call [of July 19, 2022], if you notice, I told him, let me see. I already had the subpoena with me. You have to remember that my son was in his hands, and I was fearful that he would not return him to me." ECF No. 301 at 48. Therefore, Ms. Irizarry acknowledges that she feigned ignorance about the subpoena which was already in her possession. However, Ms. Irizarry's approach during the phone call was understandable considering that her son was physically with Plaintiff and was due to be traveling back with Plaintiff to Virginia only two days later. Although she admitted that Plaintiff had never kept [Redacted] away from her, nor did she fear that Plaintiff would "hurt" [Redacted] Ms. Irizarry nevertheless explained that because of Plaintiffs insistence with the issue of her testimony at the federal trial, she feared that telling the truth "would carry some repercussions and carry problems for me with the child." ECF No. 301 at 48, 85-86.

Furthermore, when pressed by Plaintiffs counsel, Ms. Irizarry acknowledged that she was not being completely forthright with Plaintiff during the phone call but stated that "I didn't have to tell him that I was going to be here present. I am a witness. He has to respect the fact that I am a witness. That is no business of his." ECF No. 301 at 102; 105. In the end, Plaintiff had no reason to even raise the issue during the phone call on July 19, 2022 because his attorney informed him shortly after the pretrial and settlement conference on July 19, 2022 that Ms. Irizarry was indeed coming to testify. As explained below, clear and convincing evidence shows that the true reason for Plaintiff raising the custody agreement and Ms. Irizarry's testimony was an effort to pressure Ms. Irizarry not to testify in his federal trial by using the joint custody agreement as both a carrot and a stick.

3. Whether Plaintiff Used the Joint Custody Agreement to Influence & Pressure Ms. Irizarry

Plaintiff denied during his testimony at the evidentiary hearing that he was trying to keep Ms. Irizarry from coming to testify in his federal case. Plaintiff stated that "I never included, not even a hint, as we say, that she should not come to declare, testify. Never, never said it." ECF No. 300 at 78. Plaintiff denied that during the phone call he was "implying in any way for her to do anything" and that instead he was just repeating what she had been telling him that she was not coming to testify in the federal case and was going to drop the criminal case. ECF No. 300 at 73. Whenever Plaintiff was asked about his multiple statements inquiring whether Ms. Mzarry would testify, such as his statement of "what I wanted to know is if it was for sure that you weren't coming," Plaintiff responded evasively and kept repeating that he was only wanting to confirm what Ms. Mzarry had told him previously. ECFNo. 300 at 81, 83. Despite his burning desire to confirm what Ms. Irizarry had told him, Plaintiff contradictorily testified that, in fact, he was "indifferent... if she came to testify or no [sic]. That's not my obligation." ECF No. 300 at 74. In fact, Plaintiff also claimed that "at no time did I give her any instructions or told her what to do. I was just concerned." ECF No. 300 at 56-57, 75. Plaintiff maintained throughout the hearing that his motives were purely altruistic and out of concern for Ms. Irizarry's well-being. In explaining why he had asked Ms. Irizarry about whether she had been subpoenaed and whether she was in the jurisdiction of Puerto Rico, Plaintiff explained that "I was just trying for her to be sure about what she had to do." ECF No. 300 at 44. Plaintiff insisted that his questions were "out of concern" for her, "because she was telling me that she was not coming, that she was not coming, that she was not coming.... I was concerned that she was not com-that she was not going to be complying with a federal obligation." ECF No. 300 at 84. Plaintiff explained, "I told her, I want to know if you have a commitment to come,... because even though we are divorced and we had a custody battle, I still have a lot of affection for her. And I didn't want anything bad to happen to her." ECF No. 300 at 87.

Ms. Irizarry conversely testified that the implications of the telephone conversation with Plaintiff were clear. Ms. Irizarry summarized that she understood Plaintiff to be telling her "if you don't come, if you close the criminal case, then I agree to reach an agreement about custody, about reaching a final custody treaty or agreement." ECF No. 301 at 86. Ms. Irizarry explained that during the phone call she felt "very intimidated" by Plaintiff because Plaintiff had once again raised this "difficult" topic of her testimony which she had been trying to avoid. ECF No. 3 01 at 110. "When asked on cross examination, Ms. Irizarry stated that she understood that Plaintiff was "telling me in his own words" that he had put the condition that she not testify in the federal case "into one of the conditions of a custody agreement, which is something that is very serious, because it's the custody of a minor, something that has nothing to do with this federal case. And to me, that's completely illegal." ECF No. 301 at 78. Ms. Irizarry also related that she knew about a prior custody case where Plaintiff "took his son Kevin away from his mother. She lost her son's custody, and I don't want that to happen to me." ECF No. 301 at 83. Ms. Irizarry was afraid that Plaintiff would take "reprisals" against her, including by seeking to take [Redacted]s "custody away" when a final custody determination is made by the court handling the issue of [Redacted] custody. ECF No. 301 at 83.She explained "it seemed incredible to me, everything that I had heard, it seemed incredible to me the way in which [Plaintiff] had been manipulating me so-for so long over me [sic]-and I realized again what type of human being he is." ECF No. 301 at 111.

Ms. Mzarry's understanding of the conversation on July 19, 2022 was much more credible than Plaintiffs testimony. Plaintiffs claim that his "affection" and "concern" for Ms. Irizarry motivated his questions is hard to swallow. It is equally unbelievable that Plaintiff was actually indifferent to whether Ms. Irizarry came to testify in the federal proceedings. Ms. Irizarry gave evidence showing why Plaintiff would strongly wish to prevent her from testifying in the federal lawsuit. Ms. Irizarry testified that she was aware of the federal criminal prosecution in 2016 against Plaintiff which was related to his employment with the USPS. ECF No. 300 at 174-75. After the criminal prosecution concluded in October 2016, Ms. Irizarry described how she overheard the Plaintiff tell his brother that Plaintiff would not resume working for the USPS and instead he was going to "open a case, and that they would know who he was." ECF No. 300 at 177. If a jury were to believe this testimony, it could conclude that Plaintiff was not truly disabled, but rather that he chose to stop working to make a case against USPS.

Ms. Irizarry also recounted at the evidentiary hearing how she had traveled to Puerto Rico in April of 2018 and visited what had been their house when Ms. Irizarry and Plaintiff were married. ECF No. 300 at 180-81. In the bedroom closet, Ms. Irizarry found bags filled with medications that Plaintiff had stored. ECF No. 300 at 181. On that date in April 2018, Ms. Irizarry took a series of photographs depicting what appears to be full bottles of medicine. Exhibit F; ECF No. 290-1 at 1-4. Ms. Irizarry's testimony described how she removed the bottles from the bag and that they bore Plaintiffs name. ECF No. 300 at 192. Based on her training in order to work with Medicare Advantage patients, Ms. Irizarry testified that the medicine in the bottles were controlled medications, which she identified as Clonazepam, Citalopram, and Temazepam. ECF No. 300 at 193, 194, 197; Exhibits F-l, F-2, ECF No. 290-2, 290-3. Ms. Irizarry also identified vials of the medication Ketorolac and syringes in the bags of medicine. ECF No. 300 at 199; Exhibit F, ECF No. 290-1 at 4. Ms. Irizarry explained that she discovered that all of the bottles in the bags were new, never-opened bottles that were full of medication. ECF No. 300 at 196. One photo introduced into evidence depicted a bottle that was dated August 11, 2016. Exhibit F-2, ECF No. 290-3. Once again, the implication of this testimony if a jury were to believe it is that Plaintiff was not genuinely disabled, but rather pretending to be disabled by getting prescribedmedications that would exaggerate the extent of his physical and mental "condition".

On cross examination, Ms. Irizarry testified that during their marriage she would sometimes pick up medications for Plaintiff when she was returning from work but that she did not know whether Plaintiff was taking medications for depression in 2015, 2016, or 2017. ECF No. 301 at 113-14. She did, however, know that he had been prescribed medications by a psychiatrist and that a medication like Temazepam is prescribed to treat "mental problems" such as "anxiety." ECF No. 301 at 116. Ms. Irizarry explained that ever since she had heard the 2016 phone call between Plaintiff and his brother, she was "not in agreement" with the case Plaintiff was going to bring against USPS, and when she found the unused medications, it confirmed to her that Plaintiff was being "dishonest." ECF No. 301 at 119-20, 149. She also stated that Plaintiff listed her as a co-plaintiff against her wishes when the complaint was filed in the above-captioned federal case. ECF No. 301 at 124-25. Indeed, Ms. Irizarry had originally been a Plaintiff in the federal case, but on July 13, 2018, Plaintiff requested leave to file an amended complaint to remove Ms. Irizarry as a Plaintiff because Plaintiff had "initiated divorce proceedings against his wife in Bayamon Superior Court, Juliette Irizarry Miranda[,] who has moved to Florida and who was a previously named Plaintiff." ECF No. 24 at 2. Plaintiffs request to file an amended complaint removing Ms. Irizarry as a Plaintiff was granted on November 29, 2018. ECF No. 26. Hence, Ms. Irizarry is no longer a party pursuant to the amended complaint filed on December 17, 2018. ECF No. 28.

The above evidence illuminates Plaintiffs motivation to preclude Ms. Irizarry from testifying. A reasonable jury could take Ms. Irizarry's testimony to mean that his claim against USPS was fabricated and in retaliation for having been criminally prosecuted. Furthermore, a jury could conclude that Ms. Irizarry's discovery of the full bottles of medications indicates that Plaintiff had not suffered mental or emotional damages because Plaintiff was not taking the medications which he had been prescribed. Plaintiff understood the implications of Ms. Irizarry's testimony and even stated during the evidentiary hearing that he was present at Ms. Irizarry's deposition for this case where he discovered that she was going to testify that he was "faking injuries" related to his federal lawsuit. ECF No. 300 at 146. Despite that, Plaintiff emphasized that he was not upset with Ms. Irizarry and maintained that his relationship with her in 2022 was "excellent." ECF No. 300 at 146. However, Plaintiff admitted on cross examination, that at the time of the phone call on July 19, 2022 he had filed two motions to exclude Ms. Irizarry from testifying in the federal case. ECF No. 300 at 85.

In fact, Ms. Irizarry has long been a witness who Plaintiff has long tried to preclude from testifying. On November 27, 2019, USPS informed the court that it had "just disclosed [Ms. Irizarry] to Plaintiff as a witness for the United States" and requested an extension of the discovery deadline, in part to conduct a deposition of Ms. Irizarry. ECF No. 60 at 2. Plaintiff opposed any extension of the discovery deadline, arguing that the USPS had no basis good cause or excusable neglect given that USPS was aware of Ms. Irizarry at least since July 13, 2018 when Plaintiff informed USPS of his divorce with Ms. Irizarry. ECF No. 62 at 4. The court issued an order requiring USPS to "specify what discovery it wants to conduct with regard to Ms. Irizarry and why it was unable to contact her earlier." ECF No. 77 at 1. USPS filed a motion in compliance, informing that it wanted to conduct a deposition of Ms. Irizarry via videoconference and that

Defendant had difficulties locating [Ms. Irizarry] and assuring she was available to [b]e deposefd] because she is involved in a criminal process and a custody battle against Plaintiff. Given the circumstances of the legal processes mentioned above Mrs. Irizarry was afraid of testifying in this case. As soon as she indicated that she was available to be deposed, Counsel Sanchez was duly notified.

ECF No. 82 at 1-2. The court accordingly issued an order extending the deadline to conduct depositions until October 9, 2020, at which point the discovery phase of the case would be deemed closed. ECF No. 85. On September 18, 2020, Plaintiff filed a motion protesting that USPS had decided to no longer conduct a deposition of Ms. Irizarry and only so informed Plaintiff on September 9, 2020. ECF No. 87 at 2-3. Plaintiff accused USPS of conducting a "bait and switch strategy thus sandbagging Plaintiff for purposes of discovery particularly because "Plaintiff intended to file a motion in limine based on the deposition transcript" of Ms. Irizarry. ECF No. 87 at 2-3. Plaintiff therefore requested a sanction be imposed that "his former wife Juliette Irizarry not be allowed as a witness in this trial against the USPS." ECF No. 87 at 5. The court denied Plaintiff's sanction request, noting that it is not a requirement that a witness be deposed in order to testify at trial, and finding that USPS' notification to Plaintiff was made one month before the deadline to conduct depositions, which gave Plaintiff plenty of time to conduct his own deposition should he so wish. ECF No. 89 at 2-3. Plaintiff moved for reconsideration of the court's order and again asked that the court preclude Ms. Irizarry from testifying as a witness and in the alternative granting Plaintiff a discovery extension to conduct his own deposition of Ms. Irizarry. ECF No. 91 at 3-4. The court once again denied Plaintiff's request to exclude Ms. Irizarry from testifying at trial but granted Plaintiff an extension until April 9, 2021 to depose Ms. Irizarry himself. ECF No. 116. Plaintiff deposed Ms. Irizarry in this case on March 21, 2021. ECF No. 194-1 at 1.

USPS also announced its intent to call Ms. Irizarry as a witness in a joint proposed pretrial order filed by the parties on December 2, 2020. ECF No. 107. USPS expressed in that joint proposed pretrial order that they intended to have Ms. Irizarry testify "about her knowledge of Plaintiffs conditions, injuries, strategic planning, and allegations. About why she refused to be a Plaintiff in this case. Plaintiff [sic] mitigation of damages or lack off [sic], Plaintiffs credibility and wrong doings [sic] in and out of his employment." ECF No. 107 at 63. In the joint proposed pretrial order of December 2, 2020, Plaintiff also wrote that he "seeks to exclude the testimony of Juliette Irizarry" arguing that it is irrelevant, prejudicial, and violates the marital privilege. ECF No. 107 at 62. Plaintiff again expressed that he intended to file motions in limine to exclude Ms. Irizarry from testifying. ECF No. 107 at 64-65.

The parties filed a revised joint proposed pretrial order on June 8, 2022 after the court's disposition of USPS' motion for summary judgment. ECF No. 187. In the revised joint proposed pretrial order, Defendants declared their intent to call Ms. Irizarry as a fact witness, and anticipated that,

Ms. Irizarry will testify about her personal knowledge of Plaintiff Orlando Gonzalez-Tomasini, his work routine, performance, and interactions with personnel at the USPS Bayamon Branch Office. She will also testify about the nature and causation of Plaintiff s alleged work-related injuries and the treatment he sought or received regarding those conditions. Ms. Irizarry will also testify regarding personal knowledge about any alleged monetary or emotional damages suffered by Plaintiff due to his alleged work-related injuries and his experiences as a mail carrier at the USPS from 2013 through 2017. She will explain why she refused to be a plaintiff in this case and will address Plaintiffs mitigation of damages, or lack thereof.

ECF No. 187 at 102-03. Plaintiff thereafter filed the first motion in limine with regard to Ms. Irizarry, seeking to exclude Ms. Irizarry's testimony under the marital communications privilege. ECF No. 194. Plaintiff also filed two additional motions in limine regarding Ms. Irizarry following the filing of the parties' joint proposed pretrial order dated June 8, 2022. ECF Nos. 200, 201. In the second and third motions in limine regarding Ms. Irizarry, Plaintiff sought to exclude any evidence or testimony of criminal complaints made by Ms. Irizarry against Plaintiff for alleged "lascivious conduct" with [Redacted] and also sought to exclude any evidence or testimony regarding temporary protective orders which were sought or obtained by Ms. Irizarry against Plaintiff. ECF No. 200 at 2; ECF Nos. ECF No. 201 at 4.

The court ruled on all three of Plaintiff s motions in limine regarding Ms. Irizarry's testimony in a single order entered on July 19, 2022. ECF No. 255. In that order, the court permitted Ms. Irizarry to testify at the trial in this case but ordered that Ms. Irizarry's testimony not include communications protected by the marital communications privilege, that no mention be made of Ms. Irizarry's criminal complaints regarding Plaintiff, and that the protective orders pertaining to Ms. Irizarry only be mentioned if relevant to the cross-examination of Plaintiffs expert witness. ECF No. 255 at 17-18.⁴

4 The court's rulings still left the door open for Ms. Irizarry to testify about matters not beneficial to Plaintiff in the federal case. One particular portion of the court's Opinion and Order provides as follows: "Ms. Irizarry will be permitted to testify about statements made by Plaintiff to her in the presence of third parties, statements made by Plaintiff to third parties inherpresence, and as to her observations of Plaintiff s conduct or acts during their marriage which did not involve a communicative gesture. However, Ms. Irizarry must be precluded from testifying about any utterances, expressions, acts, or gestures by which Plaintiff or Ms. Irizarry conveyed a message to one another during their marriage in private. Therefore, Ms. Irizarry may testify about personal knowledge as to her observations of Plaintiffs 'lifestylethrough their more than six years of marriage, his home and workroutine' ECF No. 212 at 3. As explained further below, the marital privilege also does not bar Ms. Irizarry from testifying regarding 'what she saw Plaintiff do with medications prescribed to him, Plaintiffs manifested physical and mental capacities,' and what she herself did. ECF No. 212 at 5-6. Nevertheless, Ms. Irizarry will be precluded from testifying about Plaintiff s 'work and leave schedule', 'workperformance', 'interactions with personnel at the USPS Bayamon Branch Office', 'work-related injuries,... the treatment he sought or received', or 'mbnetaiy or emotional damages suffered by Plaintiff if Ms. Irizarry's basis for her knowledge is not based on her own observations and was only obtained through confidential communications with Plaintiff. She also would be precluded from testifying about statements made by co-workers and advisors to Plaintiff in her presence insofar as her testimony regarding those conversations constitutes hearsay. ECF No. 212 at 5-6." ECF No. 255, at 7-8.

Therefore, far from being "indifferent" as to Ms. Irizarry's testimony, by the time of the July 19, 2022 phone call, Plaintiff opposed Ms. Irizarry's participation as a witness in this case no less than seven times during the course of the litigation, including filing motions opposing extensions for deadlines to conduct discovery on Ms. Irizarry, attempting to block Ms. Irizarry from being deposed, requesting that she be precluded as a witness as a sanction for alleged misconduct by Defendants, and filing three motions in limine with regard to testimony and events related to Ms. Irizarry. Evidently, Plaintiff had a strong motive to pressure Ms. Irizarry not to testify, and when he realized that the multiple motions he filed in the federal case were unsuccessful in fully excluding her testimony at trial, he attempted to coerce her into staying away from the witness stand by using the joint custody agreement of her son as a bargaining chip.

The aforementioned evidence, combined with Plaintiffs statements during the phone call, leads to the inescapable conclusion that Plaintiff was attempting to prevent Ms. Irizarry from testifying in his federal lawsuit against the USPS. Plaintiff and Ms. Irizarry had been negotiating a joint custody agreement for several months before Plaintiffs federal civil trial was scheduled to begin. Plaintiff used the prospect of protracted custodial litigation to prevent Ms. Irizarry from testifying. Unlike in Ramirez or Young where the plaintiffs attempted to bribe witnesses with money in order to influence their testimony, Plaintiff did not offer money in exchange for Ms. Irizarry withholding her testimony from the federal trial. Instead, Plaintiff offered something of greater value to Ms. Irizarry than cash: an agreement to assure her that she would not lose custody of her son. The evidence clearly shows that this joint custody agreement was something of significance to Ms. Irizarry because Ms. Irizarry was fearful that if a custody determination was made by the Puerto Rico family court, she would lose custody of her son. Ms. Irizarry testified that she preferred to come to a joint custody agreement with Plaintiff rather than lose custody of [Redacted] Plaintiff, however, clearly communicated that in order for Plaintiff to agree to a joint custody arrangement, Ms. Irizarry would have to resolve two matters: (1) she had to desist in the Puerto Rico criminal case against Plaintiff and (2) she had to agree not to testify in Plaintiffs federal lawsuit against USPS. Plaintiff's demand that Ms, Irizarry not testify in his federal lawsuit was clearly wrongfulbecause Ms. Irizarry's testimony in the federal case had nothing to do with the custody dispute regarding their son [Redacted] While Plaintiff was free to negotiate the terms related to his son's custody situation, it was improper to make Ms. Irizarry's testimony in the federal lawsuit a condition to arriving at a custody arrangement. Indeed, Plaintiff was told on multiple occasions by Ms. Alvira that his custody agreement had nothing to do with his federal lawsuit, but Plaintiff nevertheless insisted that Ms. Irizarry not testify as a condition to a custody agreement.

Furthermore, up until Ms. Irizarry was subpoenaed on June 27, 2022, Ms. Irizarry tried to comply with Plaintiffs demands. The evidence is clear that Ms. Irizarry took affirmative actions in May and June 2022 to comply with Plaintiff's demand that she drop the Puerto Rico criminal case against Plaintiff. Additionally, as already discussed at length, Ms. Irizarry believed that her role in Plaintiffs federal case was concluded, and so she represented to Plaintiff that she was not interested in testifying against him in the federal trial. The evidence indicates that Ms. Irizarry even avoided phone calls from counsel for USPS in order to placate Plaintiffs demands. It was only when she was subpoenaed that Ms. Irizarry felt compelled to conceal from Plaintiff her participation as a witness in order to preserve the viability of a prospective joint custody agreement. It is thus evident by clear and convincing evidence that Ms. Irizarry was intimidated and pressured by the Plaintiff to not testify in the federal case.

When Plaintiff discovered on July 19, 2022 that Ms. Irizarry was indeed coming to testify despite Plaintiffs demands, Plaintiff tried to use the threat of cancelling any prospective custody agreement to convince Ms. Irizarry not to testify. During the phone call, Plaintiff reminded Ms. Irizarry three separate times that she not testifying was going to be "part of our agreement." ECF No. 290-10 at 2, 3, 4. Most tellingly, Plaintiff told Ms. Irizarry "Well then,... You know, what I wanted to know is if it was for sure that you weren't coming. Because if not, I have to talk to, to, to .. . [Pause] Because the thing is, they were going to put that as part of the deal. That's it." ECF No. 290-10 at 3-4. Plaintiff further stated "[b]ecause it depends on what you have already told them, whether you accepted that you are going to come." ECF No. ECF No. 290-10 at 3-4. Although Plaintiff never explicitly stated during the July 19, 2022 conversation that Ms. Irizarry should not come to testify or that if she testified there would be no custody agreement, Plaintiffs carefully chosen words clearly show that her testimony in the federal case would mean that there would be no custody deal. Indeed, evidence introduced at the evidentiary hearing tends to explain why Plaintiff was careful not to make any explicit statements to Ms. Irizarry. USPS introduced evidence which showed that Plaintiff had previously been prosecuted, but not convicted, for tampering with a witness in a federal criminal case in 2016. ECF No. 290 at 11 at 7-8; ECF No. 300 at 21-22. Plaintiff also acknowledged that he heard the jury instructions in those criminal proceedings regarding witness tampering. ECF No. 300 at 22. As such, Plaintiff was already well-aware of the wrongfulness of witness tampering, and he did his best to avoid any direct statements of threats or offers to Ms. Irizarry. Everything that Plaintiff said was done by underhand implication, but his meaning was clear.

In fact, Plaintiff followed through on his threat to cancel any prospective custody agreement once he discovered that Ms. Irizarry had recorded their July 19, 2022 telephone conversation. At 4:00 PM on July 21, 2022, social worker Ms. Alvira received a phone call from Plaintiff which lasted "approximately less than a minute." ECF No. 302 at 61, 92; Exhibit S-13, ECF No. 292-12 at 1. Plaintiff informed Ms. Alvira over the phone that he "was not going to reach an agreement" with Ms. Irizarry because "she had laid a trap for him, because she had recorded him." ECF No. 302 at 89-90. Ms. Alvira testified that she told Plaintiff that "I didn't know what he was talking about, that if he was mentioning the issue of the Post Office, that I had told him before that that was not related to the custody case." ECF No. 302 at 90. Ms. Alvira described Plaintiffs tone in the phone call as "[a] little bit worried, upset" and that he told her that Ms. Irizarry "had involved him in a mess, that she had recorded him, and that he-was not going to reach an agreement with that lady." ECF No. 302 at 92.

In sum, clear and convincing evidence shows that Plaintiff tried to use a prospective custody agreement for their son [Redacted] as a means to influence Ms. Irizarry to withhold her testimony in this federal lawsuit. Plaintiffs inducements-and later underhand threats-were conduct that placed significant pressure to dissuade Ms. Irizarry from testifying in this case. Therefore, Plaintiffs actions constitute witness tampering, even if his attempts are not ultimately successful and Ms. Irizarry eventually testifies in his federal trial. Torres, 2019 WL 8012686, at *4 (“Trying improperly to influence a witness is fraud on the court... ."). As such, clear and convincing evidence shows that Plaintiff committed a fraud on the court which merits the imposition of appropriate sanctions.

C. The Appropriate Sanctions Under the Circumstances

Upon a finding that a party engaged or attempted to engage in a fraud on the court, a federal district court possesses inherent authority to impose a range of sanctions as a consequence for abuse of judicial process. Young. 217 F.R.D. at 65; e.g., Helios Software GMBH, 1996 WL 162962, at *2 ("The court also has the power to shift attorneys fees' for lesser violations."); Young, 217 F.R.D. at 70-71 (The court may also make a finding of civil contempt, assess fines, issue a protective order, or impose "issue-related sanctions" such as "adverse evidentiary rulings and preclusion of specific claims, defenses or evidence, and taking certain facts as established."). If the circumstances so justify, the sanction imposed may result in the dismissal of an action in its entirety. Aoude. 892 F.2d at 1119 ("We find the caselaw fully consonant with the view that a federal district judge can order dismissal or default where a litigant has stooped to the level of fraud on the court."); SurfCast, Inc.. 2014 WL 12726543, at *2 ("[A] federal district court possesses the power to dismiss a case as a sanction for truly egregious litigation misconduct by one of the parties."); Torres. 2019 WL 8012686, at *5 ("[W]hile the Supreme Court has recognized that the outright dismissal of a lawsuit... is a particularly severe sanction, it confirmed that such a sanction is within the [district] court's discretion.") (citing Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991) (internal quotations omitted)).

Witness tampering is a particularly egregious fraud on the court as recognized in several jurisdictions; as such, dismissal is available as an appropriate sanction. SurfCast. Inc.. 2014 WL 12726543, at *2 ("The alleged misconduct at issue here-witness tampering-is, if true, truly egregious and strikes at the heart of the integrity of this proceeding."); Ramirez. 845 F.3d at 782 ("But witness tampering is among the most grave abuses of the judicial process, and as such it warrants a substantial sanction."); Torres, 2019 WL 8012686, at *5 ("Given that 'witness tampering is among the most grave abuses of the judicial process,' [dismissal] is appropriate here.") (citing Ramirez, 845 F.3d at 782).

When determining the appropriate sanction, the court's "inherent judicial power must be exercised with restraint and discretion." Young, 217 F.R.D. at 65. Because dismissal is a particularly severe sanction, it should also only be imposed after providing the offending party with an opportunity for a hearing. Fernandez v. Leonard, 963 F.2d 459 (1st Cir. 1992), modified (May 29, 1992) (citing Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 209 (1958)); Helios Software GMBH, 1996 WL 162962, at *2 ("However, such power is only to be exercised after the violating party receives an appropriate hearing."). A court that finds by clear and convincing evidence that fraud or bad faith misconduct has occurred must explain why lesser sanctions "would not sufficiently punish and deter the abusive conduct while allowing it a full and fair trial on the merits." Young, 217 F.R.D. at 65; Shepherd v. Am. Broad. Companies, Inc., 62 F.3d 1469, 1478 (D.C. Cir. 1995) ("the district court not only must find clear and convincing evidence of misconduct but also must provide a specific, reasoned explanation for rejecting lesser sanctions, such as fines, attorneys' fees, or adverse evidentiary rulings."). In addition to discussing why lesser sanctions would not sufficiently punish the misconduct at issue, the sanction of dismissal may be justified when,

(1) the other party has been so prejudiced by the misconduct that it would be unfair to require [the party] to proceed further in the case, (2) the party's misconduct has put an intolerable burden on the court by requiring the court to modify its own docket and operations in order to accommodate the delay, or (3) the court finds it necessary to sanction conduct that is disrespectful to the court and to deter similar misconduct in the future.

Young. 217 F.R.D. at 65-66, 69-70 (citing Webb v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998) (internal quotations omitted, emphasis in original).

An analysis of the circumstances in the case presently before the court leads to the conclusion that sanctions lesser than dismissal of all claims are inadequate to properly address the goals of punishment and deterrence. One possible sanction could be, for example, to dismiss all of Plaintiff s claims for emotional damages. Among other things, Ms. Irizarry's testimony raises the possibility that the Plaintiff was not truly experiencing any emotional distress as a result of any workplace situation. This possible sanction, however, would have no meaningful impact as the case currently stands. Plaintiff has presented a cause of action under the Age Discrimination in Employment Act ("ADEA"), 29U.S.C. § 621 et seq. However, "compensatory damages for pain and suffering are unequivocally not recoverable under the ADEA." Rivera-Almodovar v. Instituto Socioeconomico Comunitario. Inc.. 806 F.Supp.2d 503, 507 (D.P.R. 2011). Plaintiff also still has an outstanding claim Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Yet, "a plaintiff may not recover damages for emotional distress under the FMLA." Pagan-Col6n v. Walgreens of San Patricio. Inc.. 697 F.3d 1, 16 (1st Cir. 2012). Therefore, at least as to these two claims, a sanction precluding recovery of emotional damages is inconsequential. With respect to Plaintiffs claim under the Rehabilitation Act, 29 U.S.C. § 791 et seq., even if it were the case that Cummings v. Premier Rehab Keller. P.L.L.C, 142 S.Ct. 1562 (2022) which bars recovery for emotional distress damages in Rehabilitation Act cases brought under section 504 has no bearing Plaintiff's claim under section 501, a sanction precluding recovery for emotional damages would fall short of providing a proportional remedy because Ms. Lrizarry's testimony would have raised questions not only as to whether Plaintiff experienced any suffering due to discrimination, but more critically as to whether Plaintiff was even disabled in the first place. In other words, Plaintiffs attempt to dissuade Ms. Irizarry from testifying by conditioning a settlement on a litigation pertaining to the custody of [Redacted] was an effort to prevent a jury from being exposed to evidence that could have resulted in a finding that Plaintiff was simply feigning or exaggerating his disability. Therefore, a sanction barring recovery for emotional damages is insufficient to address Plaintiffs conduct.

Another possible sanction for Plaintiffs witness tampering could theoretically be monetary in nature. Plaintiff, however, has expressed that he is unable to pay any monetary sanction and even argues that any monetary sanction "would be the death knell of the case akin to a dismissal, as Plaintiff... does not have the means to pay a monetary sanction." ECF No. 296 at 7. Plaintiffs financial situation, when combined with the absence of other lesser sanctions that are adequate to address the conduct at issue, tilts the scales towards dismissal. See Quiroz v. Superior Bldg. Marat. Inc.. 2008 WL 3540599, at *9 (S.D. Fla. Aug. 12, 2008) ("Finally, [plaintiffs] inability to satisfy any monetary sanction, when compounded with the unavailability of any lesser sanction that would cure his breach and punish and deter future acts of impropriety, leave this Court with no alternative but to exercise its inherent authority and impose the ultimate sanction[.]").

Yet another potential sanction could be to allow the jury during the trial listen to Ms. Irizarry and Ms. Alvira testifying as to how Plaintiff was insistent on Mr. Irizarry not testifying in this case as a condition to sign off on a joint custody agreement, or perhaps even an adverse jury instruction allowing the jury to draw a negative inference from Plaintiffs communications with Ms. Irizarry. Nonetheless, such a proposition creates a trial-within-a-trial and poses a substantial risk of confusing the jury and the issues at hand. Additionally, the phone call of July 19, 2022 and previous communications of Plaintiff with Ms. Irizarry and Ms. Alvira would require, to place matters into context, information regarding the Puerto Rico criminal investigation involving allegations of sexual misconduct by Plaintiff against [Redacted] However, in ruling on a previously filed motion in limine, the court ordered that any reference to criminal complaints or investigations against Plaintiff as to any conduct with [Redacted] would be precluded from being introduced into evidence at trial because the potential probative value of such evidence is vastly outweighed by its potential to create unfair prejudice and inflame the passions of the jury. ECF No. 255 at 14-15.⁵ In the end, though, even if somehow the jury could listen to the witness tampering evidence without being exposed tc any evidence pertaining to criminal investigations against Plaintiff, the probability of causing confusion among the jurors by opting for this sanction is too great to make it viable.

5 The court nevertheless ruled that evidence regarding the criminal complaints or investigations regarding sexual misconduct by Plaintiff against his stepdaughter would be permitted at trial if Plaintiff opens the door on his own good moral character by testifying that he has never been investigated for a crime of any type. ECF No. 255 at 15.

Likewise, issuing a protective order prohibiting Plaintiff to contact Ms. Irizarry in this case is neither practical nor effective. Plaintiff and Ms. Wzarry must coordinate and communicate with regard to their minor son [Redacted] Furthermore, a protective order could impede the Plaintiff and Ms. Irizarry's ability to comply with matters ordered by the family court in Puerto Rico regarding their custody dispute. Finally, such a protective order does not remove the taint that Plaintiffs efforts have already had in pressuring Ms. Irizarry not to testify in the instant federal lawsuit. In sum, a protective order does not impose any punishment on Plaintiff for his witness tampering or attempt to commit witness tampering because the trial would be proceeding without adverse consequences for him despite his unlawful conduct. If anything, it would only complicate further any communications between Plaintiff and Ms. Irizarry with respect to their son [Redacted].

Weighing all of the above considerations, the proper and proportional sanction which will adequately punish and deter Plaintiffs witness tampering requires that Plaintiffs claims in this case be dismissed. In reaching this determination, the court is taking into account not only the unavailability of alternative sanctions that are less severe. Other factors are part of the equation. First, Plaintiff seems focused exclusively on the recorded conversation that transpired on July 19, 2022. He correctly points out that he was not the one who initiated the phone call, but this does not alter in any way the conclusion that he engaged in witness tampering. Ms. Irizarry initiated the phone call to confirm arrangements for [Redacted]'s return to Virginia; she did not take the initiative in bringing the subject of her testimony at trial. It was Plaintiff who raised the subject of her testimony first.⁶ Plaintiff also zeroes in on the argument that the recording of the July 19, 2022 conversation was illegal, but he admits that he in fact told Ms. Irizarry the substance of what was recorded. Thus, even if the recording werenot to be taken into account, Plaintiff's admission as to the substance of the statements stills bolsters a finding of witness tampering. Plaintiff also claims that the recording fails to capture the entire conversation on July 19, 2022 from the very beginning, but Ms. Irizarry explained that she only began recording when Plaintiff brought the subject of her testimony at trial in the federal case and Plaintiff has not proffered anything that was said prior to the recorded statements that would make a difference in the finding of witness tampering. There was absolutely no need whatsoever for Plaintiff to bring up the topic of Ms. Irizarry "s testimony when his own lawyer had already confirmed to him that, at the filial pretrial conference, the legal representation of USPS had unequivocally informed that Ms. Irizarry would be called by the Defendants to the witness stand. For Plaintiff to argue that he was simply concerned about making sure that Ms. Irizarry would comply with a subpoena rings hollow after all his multiple attempts, both in court and outside the court, to prevent her testimony at trial.⁷

6 Ms. Irizarry had no motive to initiate during the July 19, 2022 conversation the subject of her testimony in the federal case. To the contrary, she testified that she wanted to avoid the subject because she was afraid that if Plaintiff found out that she was going to testify in the federal case the negotiations to reach a joint custody agreement of would be derailed.

7 That Plaintiff never explicitly stated during the July 19, 2022 that there would be no consensus on the joint custody agreement unless she desisted from testifying in the federal case also fails to carry the day for Plaintiff. Prior to July 19, 2022, Plaintiffs demands had clearly been communicated to Ms. Irizarry and Mr. Alvira, and the fact that he reminded Ms. Irizarry about their "agreement" was nothing less than a veiled threat as to what was going to happen with the potential joint custody agreement if she remained as a witness in the federal case. Plaintiffs counsel's attempt to diminish the shrewdness of his client when he said "[w]ith all due respect to my client, what that tape shows, and I'll use the term he used, is somebody who's acting like an idiot..." (ECFNo. 302 at 154) is unpersuasive.

Another aggravating factor is that Plaintiffs witness tampering conduct is not limited to the conversation that took place on July 19, 2022. Ms. Irizarry herself testified as to how Plaintiff, prior to the conversation on July 19, 2022, had clearly communicated to her that there were some obstacles for them to reach a joint custody agreement on [Redacted] and one of those obstacles was her testimony in the federal case at bar. Ms. Alvira also testified that Plaintiff was adamant about the fact that to have a deal on the custody matter Ms. Irizarry would have to desist from testifying in the federal case. Even though Ms. Alvira explained to the Plaintiff that the custody dispute had nothing to do with the federal case, Plaintiff did not yield in his demands. Therefore, Plaintiffs witness tampering was not conduct limited to a single conversation on July 19, 2022, but was rather a persistent effort that only came to be discovered once the July 19, 2022 conversation was brought to the attention of the court by USPS' legal representation.

The court finds the testimonies of Ms. Irizarry and Ms. Alvira to be credible not only because they are consistent with each other, but also because it is not readily apparent what motive either of them would have to lie about Plaintiffs demand that Ms. Irizarry not testify in this case as a non-negotiable precondition for a joint custody agreement. Ms. Irizarry does not benefit financially if Plaintiff loses in this case. To the contrary, if Plaintiff wins, Plaintiff could potentially be in a better financial position to provide for the financial needs of [Redacted]. As to Ms. Alvira, she is a social worker that has nothing to gain or lose on the outcome of this case. Both Ms. Irizarry and Ms. Alvira have testified about Plaintiffs insistence that Ms. Irizarry's testimony in this case was an impediment for him to reach a joint custody agreement with Ms. Irizarry as to their son [Redacted].

Whether Plaintiff and Ms. Irizarry have, subsequent to the hearing held in August 1-3, 2022, reached a joint custody agreement as to their son [Redacted] is immaterial to the decision that the court is making today. The witness tampering has already occurred and the efforts by Plaintiff to coerce Ms. Irizarry into ignoring a subpoena in exchange for a joint custody agreement caused not only a trial to be vacated and postponed, but also a harm to the integrity of the judicial system. Furthermore, even if a joint custody agreement were already to exist, the possibility that Plaintiff might attempt to undo the same or raise further litigation as to [Redacted]s custody should Ms. Irizarry choose to testify in this case is not in the realm of speculation in light of the Plaintiffs past insistence on her absence as a witness in this case.

Witness tampering such as that committed by Plaintiff- regardless of whether it is ultimately successful - is an egregious abuse of judicial process that merits dismissal of the case. Plaintiffs actions after the final pretrial conference caused the court to vacate the trial of a case that has been pending in the court's docket since 2017 and which has endured multiple disputes both at the discovery phase and afterwards. In scheduling an evidentiary hearing regarding the witness tampering issue, Plaintiff was unambiguously put on notice that Defendants were seeking dismissal of the case with prejudice. ECF No. 275. Moreover, the court provided Plaintiff with a hearing wherein Plaintiff, Ms. Irizarry, and Ms. Alvira testified, Plaintiff had the opportunity to cross examine Defendants' witnesses, call his own witnesses, introduce written evidence, present oral legal arguments, and submit a post-hearing brief setting forth his legal arguments in writing.⁸

8 After USPS concluded the presentation of its evidence in support of the imposition of sanctions, Plaintiff¹ s counsel informed that he intended to call attorney Maria E. Juarbe as a witness, but that Ms. Juarbe was unavailable because she had a hearing before a different court. Plaintiffs counsel requested for Ms. Juarbe to testify by videoconference, but this request was denied for several reasons. First, more than a week prior to August 1, 2022, when the hearing tookplace, Plaintiff was put on notice of the scheduling of the same. At no moment did he file a motion in advance of the hearing alerting the court of a scheduling conflict with any of his witnesses. He could have also served a subpoena on the witness to come to testify, but there is no evidence that he did so. Second, if the court required Ms. Irizarry, who was a witness for the Defendants, to travel all the way from Virginia to Puerto Rico to testify in-person at this hearing, it was fair to require any witnesses that Plaintiff wanted to call that resided in Puerto Rico to show up in person to the courthouse. Third, the particular courtroom that was used for the hearing was not equipped to handle witnesses testifying via videoconference and granting Plaintiffs request would have entailed an 11th hour search for a different courtroom and setup of the videoconference connection, which would have caused further delay. Fourth, the court recessed for more than an hour after the Defendants rested with their presentation of the evidence to give Ms. Juarbe an opportunity to arrive to the courthouse. Eventually, Plaintiffs counsel informed that Ms. Juarbe would not come to testify at the hearing and declined to make any additional requests when given the chance to do so. ECF No. 289; ECF No. 302 at 123. Fifth, although it is unclear what role, if any, Ms. Juarbe had in the issues at hand or if she represents Plaintiff for purposes of divorce and custodial matters, even assuming arguendo that she was advising or representing Plaintiff in the drafting of a potential joint custody agreement with Ms. Irizarry, nothing in the evidence introduced suggests or even hints that she was a witness to the conversations or messages exchanged directly between Plaintiff and Ms, Irizarry which are subject of the allegations of witness tampering. Even if Ms. Juarbe were to testify that Plaintiff never told her to draft a joint custody agreement with a condition that Ms. Irizarry desist from testifying in the federal case, tbat still does not foreclose the fact he communicated that condition to both Ms. Irizarry and Ms. Alvira. Whether the demands that Plaintiff communicated to Ms. Irizarry and Ms. Alvira were a bluff or a real threat to the viability of a joint custody agreement is immaterial; what matters is the intended effect to dissuade Ms. Irizarry from testifying in the federal case. Finally, in his post-hearing memorandum, Plaintiff does not explain what difference, if any, Ms. Juarbe's testimony would have made. ECF No. 296.

What Plaintiff was attempting to exclude from trial by instilling in a witness fear of losing custody of her son was not going to be a minor footnote in the presentation of the evidence before the jury. Ms. Irizarry's potential testimony was not only going to question Plaintiffs attempt to make others believe that he had been discriminated against because of a disability or that he had endured much suffering due to discrimination, but more fundamentally Plaintiffs motives for filing the complaint in the first place as a means to get even with USPS for the criminal prosecution that he had previously faced which resulted in an acquittal. No witness should ever be placed in a position to have to choose between testifying in a case that has absolutely nothing to do with a divorce and having custody of a child.

IV. Conclusion

For the foregoing reasons, Defendants' request that Plaintiffs case be dismissed with prejudice is GRANTED. The evidence is clear and convincing that Plaintiff engaged in witness tampering and attempted to do so, thereby perpetrating a fraud upon the court and an abuse of the judicial process. Lesser sanctions would not do justice to the gravity of pressuring a witness to refrain from testifying with the threat of losing the custody of her son. Plaintiff's amended complaint and all causes of action contained therein are therefore DISMISSED WITH PREJUDICE.⁹

9 Nothing in this Opinion and Order should be construed as implying that Plaintiffs counsel, Carlos Sanchez La Costa, aided and abetted Plaintiff in the commission of witness tampering. No evidence has been brought to the attention of the court suggesting that Plaintiffs counsel was aware of his client's strategy to withhold the execution of a joint custody agreement as a mechanism to dissuade Ms. irizarry from testifying in this case.

IT IS SO ORDERED.