Alan Schorrs Employment Case of The Week ending August 9, 2013
Hill v. Tangherlini, — F.3d —-, 2013 WL 3942935 (7th Cir., August 1, 2013)
This weeks Case of the Week, Hill v. Tangherlini, addresses the issue of whether a plaintiffs own testimony and affidavits can be used to defeat summary judgment, or whether such testimony can be disregarded as self-serving. This has continued to be a problem in New Jersey and other Courts around the country. The 7th Circuit, however, has now ruled that a plaintiffs testimony and statements can never be disregarded as self-serving, and, in the process, expressly overruled 24 separate 7th Circuit cases where summary judgment was granted and upheld based upon the disregard of the plaintiffs testimony as self-serving.
The way this problem generally comes up is that the defendant files for summary judgment and includes among its Statement of Undisputed Facts all of the employers witnesses own testimony and reasons for taking action against the Plaintiff. The Plaintiff then opposes summary judgment, citing all of the material issues of fact, and using plaintiffs own testimony to rebut the alleged misrepresentations of the employers witnesses. Then, in their reply brief, which plaintiff cannot respond to, the defendant argues that the court should disregard the plaintiffs own testimony as self-serving. The court then, relying on numerous cases which have all incorrectly refused to consider the plaintiffs own testimony, declares the testimony self-serving and grants summary judgment. Our New Jersey appellate courts have continued to uphold such dismissal. See, most recently, Canale v. State, 2013 WL 3762470 (July 19, 2013), in which the New Jersey Appellate Division rejected, as self-serving a plaintiffs testimony, and only cited the Pressler rulebook as authority.
The New Jersey courts and other courts have been getting it wrong. Plaintiffs testimony is evidence. It is absurd to rule that a defendants testimony is gospel while the plaintiffs testimony can be disregarded as self-serving. The Third Circuit and U.S. Supreme Court recognized that self-serving testimony may be utilized by a party at summary judgment. Waldron v. SL Industries, Inc., 56 F.3d 491, 501 (3d Cir. (N.J.) 1995), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Yet, trial judges and appellate judges still occasionally disregard the plaintiffs testimony at summary judgment, even though often the plaintiffs testimony is not self-serving, it is the plaintiffs testimony of direct evidence against the defendant.
Anthony Hill had sued the U.S. General Services Administration alleging that his termination was racially motivated. The Government claimed that they terminated Hill because of three separate interactions in which they believed his temper was unacceptable. The 7th Circuit noted that the district court discredited Hill’s testimony about his interactions with coworkers because of its self-serving nature. The Court ruled:
This was error. Deposition testimony, affidavits, responses to interrogatories, and other written statements by their nature are self-serving. As we have repeatedly emphasized over the past decade, the term selfserving must not be used to denigrate perfectly admissible evidence through which a party tries to present its side of the story at summary judgment.
In its footnote, the court cited 24 recent 7th Circuit cases in which the plaintiffs testimony was disregarded and expressly overruled those cases.
Unfortunately, this excellent and well-reasoned ruling did not save the day for Mr. Hill. The court ultimately ruled that, although the trial erred in disregarding Hills testimony, that, even with his testimony there was insufficient evidence to rebut the employers stated reason for termination. Such are the difficulties of suing the federal government, but that is a topic for another future blog. In the meantime, this case can be cited to counteract an argument that plaintiffs own testimony is self-serving and therefore lacks credence.
I also want to say a few words about Judge Richard Allen Posner, who was on this appellate panel, and whom I greatly admire and consider to be the greatest jurist in America. Now 74 years old, Posner is the greatest judge to never serve on the Supreme Court. The Journal of Legal Studies has identified Posner as the most cited legal scholar of the 20th century. Robert S. Boynton has written in The Washington Post that he believes Posner will never sit on the Supreme Court because despite his “obvious brilliance,” he would be criticized for his occasionally “outrageous conclusions,” such as his contention “that the rule of law is an accidental and dispensable element of legal ideology,” his argument that buying and selling children on the free market would lead to better outcomes than the present situation, government-regulated adoption, and his support for the legalization of marijuana and LSD. Wikipedia. It is amazing that Judge Posner continues to see these issues so clearly and to refuse to accept incorrect doctrines that so many other judges take for granted.
Plaintiffs Counsel: H. Yvonne Coleman.
Defendants Counsel: Lashonda A. Hunt, Office of the United States Attorney.
Appellate Judges: Easterbrook, Chief Judge, and Posner and Williams, Circuit Judges.
Trial Court Judge: Virginia M. Kendall, U.S.D.J.