Employment Law Daily Coworkers’ unsworn, unattested statements about N-word use of no value on summary judgment
Monday, July 18, 2016

Coworkers’ unsworn, unattested statements about N-word use of no value on summary judgment

By Dave Strausfeld, J.D. Because three witness statements offered by an African-American machinist to show that a white coworker called him the N-word were not properly sworn or attested, they were not competent summary judgment evidence, held the Eighth Circuit, affirming summary judgment for the employer on his racial harassment claims brought under federal and state law. While FRCP 56, as amended in 2010, no longer requires affidavits, any unsworn declarations that are used must still be certified as true and correct "under penalty of perjury." Because the witness statements here were not, they could not be considered on summary judgment, regardless of whether the machinist would be able to present admissible testimony from these same witnesses at trial (Banks v. John Deere and Co., July 14, 2016, Riley, W.). Witness statements said he was called N-word. Seeking to survive summary judgment on his racial harassment claim, the machinist submitted written statements from three fellow employees at a tractor manufacturing plant who allegedly heard a white coworker refer to him as "that n-gger." Although the machinist apparently characterized these witness statements as "sworn affidavits," the district court concluded they actually were nothing more than "unsworn statements and emails, constituting inadmissible hearsay." Because no admissible evidence of harassment could be located in the summary judgment record, the district court dismissed his harassment claim. Employee’s argument. On appeal, the machinist challenged the decision to reject his witness statements on summary judgment as inadmissible hearsay. If the case had gone to trial, he stressed, he would have called the three witnesses to testify that they had all heard the white coworker refer to him using the N-word. By jettisoning the three statements as inadmissible hearsay, he maintained, the district court failed to view the record in the light most favorable to him and to draw all reasonable inferences from his evidence. Argument rejected. This argument "misses the mark," the Eighth Circuit declared. Even if the machinist could present his witnesses’ evidence at trial in an admissible form, his witness statements nonetheless did not satisfy Rule 56—which meant, in this case, that his claim failed on summary judgment. Rule 56 says that affidavits and declarations "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." But there are also additional requirements not set forth explicitly in the rule itself. As the advisory committee’s note to the 2010 amendment clarifies, an unsworn declaration substituted for a sworn affidavit must meet important statutory requirements. In particular, under 28 U.S.C. Sec. 1746, an unsworn statement or declaration must be written, signed, dated, and certified as true and correct "under penalty of perjury." Here, the unsworn and unattested statements "purportedly from" the machinist’s fellow employees did not meet these standards. And the machinist was unable to explain why he could not have obtained sworn affidavits or written declarations "under penalty of perjury." In light of what the appeals court called his "reliance on incompetent and inadmissible evidence," his harassment claim was properly dismissed on summary judgment. Mixed motive. On a separate matter, the machinist challenged the grant of summary judgment on his mixed-motive discrimination claim. The basic issue on this claim was whether race was a motivating factor in the company’s decision to discipline him for "running scrap"—i.e., producing parts on his machine that were out of compliance with manufacturing specifications. Like the district court, the appeals court identified strong evidence in the record that the machinist’s discipline for failing to follow instructions and running scrap had nothing to do with his race. "Put simply," the machinist "speculates race was a motivating factor in his suspension, but has failed to show it." Accordingly, the company was properly granted summary judgment on this claim too, the appeals court held.

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