Alan Schorr’s Employment Case of The Week ending August 9, 2013

Hill v. Tangherlini, — F.3d —-, 2013 WL 3942935 (7th Cir., August 1, 2013)

This week’s Case of the Week, Hill v. Tangherlini, addresses the issue of whether a plaintiff’s 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 plaintiff’s 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 plaintiff’s 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 employer’s 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 plaintiff’s own testimony to rebut the alleged misrepresentations of the employer’s witnesses. Then, in their reply brief, which plaintiff cannot respond to, the defendant argues that the court should disregard the plaintiff’s own testimony as “self-serving”. The court then, relying on numerous cases which have all incorrectly refused to consider the plaintiff’s 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 plaintiff’s testimony, and only cited the Pressler rulebook as authority.

The New Jersey courts and other courts have been getting it wrong. Plaintiff’s testimony is evidence. It is absurd to rule that a defendant’s testimony is gospel while the plaintiff’s 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 plaintiff’s testimony at summary judgment, even though often the plaintiff’s testimony is not self-serving, it is the plaintiff’s 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 plaintiff’s 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 Hill’s testimony, that, even with his testimony there was insufficient evidence to rebut the employer’s 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 plaintiff’s 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.

Plaintiff’s 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.