Employment Law Daily Employee’s deposition testimony no more self-serving than employer’s; discrimination claim revived
Tuesday, August 2, 2016

Employee’s deposition testimony no more self-serving than employer’s; discrimination claim revived

By Kathleen Kapusta, J.D. In reviving the state-law sex discrimination claim of a Carabin & Shaw (C&S) legal assistant who was fired while on maternity leave, the Fifth Circuit in an unpublished opinion found that a magistrate judge and district court erred in rejecting her deposition statements as self-serving while accepting those of the law firm’s employees. "Simply put," said the court, her "statements are no more and no less self-serving that those of the others. If we toss [her] deposition, we must also toss the depositions, affidavits, and declarations of the others for the same reason. To hold otherwise would signal that an employee’s account could never prevail over an employer’s. This would render an employee’s protections against discrimination meaningless." Accordingly, the court reversed the grant of summary judgment against her claim (Heinsohn v. Carabin & Shaw, P.C., July 26, 2016, Weiner, J.). Missed deadlines. When the employee, who was assigned to work exclusively on Social Security Administration cases, accepted a better paying positon with another employer, her supervising attorney, believing she was doing a good job, arranged for a pay raise. The following year, she left on maternity leave and her cases were assigned to another legal assistant who within days of the employee’s departure told the supervising attorney that deadlines had been missed in some of her cases and good cause letters had been sent on his behalf. Fired. Instead of asking the employee for an explanation, the attorney contacted an HR assistant about the missed deadlines and she in turn informed the firm’s managing partner, who fired the employee without giving her an opportunity to explain or giving her a reason for her termination. Lower court proceedings. The employee sued in state court, asserting claims under the FMLA and the Texas Commission on Human Rights Act. C&S removed the case to federal court based on the FMLA claim and moved for summary judgment. Withdrawing her FMLA claim, the employee acknowledged that C&S did not have enough employees to be covered by the FMLA. C&S then moved to strike various portions of her deposition. Recommending that summary judgment be granted, the magistrate granted much of the motion to strike. The district court adopted the recommendations and dismissed the employee’s claims. As an initial matter, the Fifth Circuit found that the employee’s TCHRA claim was part of the same case or controversy as her dismissed FMLA claim so supplemental jurisdiction existed. It also found that the district court abused its discretion in striking the employee’s deposition testimony that the HR assistant wanted a guaranteed return date because it was purportedly refuted by an email exchange she had with HR assistant. The magistrate judge improperly considered the veracity of the evidence, rather than its admissibility, the court explained. TCHRA claim. At issue in the employee’s TCHRA claim was whether she presented sufficient evidence to refute C&S’s stated reason for her termination provided by the managing partner in his deposition—she had missed deadlines and had attempted to conceal this by failing to inform her supervising attorney and sending good cause letters without his knowledge. As a preliminary observation, the court found little for the employee to refute as C&S’s only contemporaneous evidence of its reason for terminating her was a letter in which it stated: "Based on a review of your work, it has been decided that your employment with [C&S] has been terminated as of October 19, 2012." As to C&S’s post hoc evidence of its reason, while the managing partner said that according to the employee’s notes in the case management system "files were discovered" indicating that "deadlines were missed," he did not reference any specific file on which h based the termination decision, did not remember asking either the supervising attorney or the HR assistant any questions about what had occurred, and did not ask the employee any questions. Further, there was a fact issue as to whether he was the employee’s supervisor and whether he was responsible for terminating her as the supervising attorney and another legal assistant were the only ones who reviewed her work and were her direct supervisors. The employee also asserted that she never had any reason to communicate with the managing partner, who was not in the SSA section. Thus, said the court, if the supervising attorney was her supervisor it might have been improper for the managing attorney to terminate her for following her supervisor’s instructions. Notes. There was also a fact issue as to whether her notes constituted evidence of what the employee did or did not do as it was not clear exactly what C&S required her to record. There was also evidence indicating that she was not closely supervised and she asserted that SSA cases proceeded almost entirely without the supervising attorney. Nor did C&S produced evidence of any written policy dictating exactly what she was required to include in her notes; only that she was orally instructed to maintain them. Thus, it was not clear whether the notes she maintained should amount to exhaustive evidence of what she did or did not do. Even if the notes were authentic and complete, there was a fact issue as to whether they indicated that she violated C&S’s policies. Although they might be a legitimate, nondiscriminatory reason for terminating her if she did, in fact, fail to meet deadlines and attempt to conceal that failure, the court found fact issues as to both. Failure to meet deadlines. While the managing attorney stated it was his policy that employees who missed a deadline needed to see him immediately, there was a question as to whether this policy, even if she was aware of it, applied to the employee. Significantly, the notes indicated that although deadlines were missed, they were not missed by the employee. Rather, in the cases at issue, the SSA did not copy her on the event triggering the deadline and thus the deadlines were not missed by her. The notes also indicated that once the employee received notice of missed deadlines, she immediately prepared and sent good-cause letters to the SSA and contacted the clients. Thus, a fact issue existed as to whether she violated C&S’s policy by failing to adequately follow up. There was also evidence that rather than "hiding the ball," she contemporaneously recorded the circumstances of each of the missed deadlines in her notes, which were immediately accessible to her supervising attorney. Further, there was no evidence that, in addition to informing her supervising attorney of the missed deadlines by maintaining the notes in the case management system, she was also required to inform him through other means. There was also evidence that the employee was allowed to function somewhat autonomously and that she was not required to obtain her supervising attorney’s authorization before sending the good cause letters. Finding that fact issues precluded summary judgment, the court observed that to determine whether C&S’s nondiscriminatory reason for terminating the employee was pretextual, a factfinder must weigh the evidence. At bottom, said the court, the magistrate judge and district court erred in rejecting the employee’s statements as self-serving and accepting the statements of the law firm’s employees as such an approach is inconsistent with fundamental rules governing summary judgment.

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