Sham affidavits doom plaintiff's sexual harassment case

Not all factual disputes get you a trial. Sometimes, the plaintiff's many testimonial inconsistencies will convince the court that the plaintiff does not a deserve a trial. The Second Circuit first developed this approach to summary judgment in Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), a police misconduct case. This time around, the Court of Appeals does this in an employment discrimination case.

The case is Rojas v. The Roman Catholic Diocese of Rochester, decided on October 4. This is a sexual harassment case. Plaintiff says she was harassed by Pastor Enyan-Boadu and that she told management about it, which did not remedy the hostile work environment. Except that her testimony on both whether Enyan-Boadu was her supervisor and whether she told management about the harassment was all over the place.

While plaintiff's summary judgment affidavit and deposition testimony said that the harasser, Enyan-Boadu, was her supervisor and that management knew or should have known about the harassment, the lawsuit itself and her sworn interrogatories said that Enyan-Boadu was only a co-worker. (If he was the harassser, she has a stronger case). Similarly, the EEOC charge and lawsuit (as well as the interrogatories) did not quite allege that she told management about the harassment, but "Rojas's story changed when she was deposed by the Diocese's attorney" when "for the first time, she stated that she complained to [another manager] during her annual performance evaluation ... that Enyan-Boadu was 'touching her.'" Also during deposition, she testified that she told this manager on a different occasion that Enyan-Boadu was "touching me and kissing me." On the other hand, the Second Circuit says, the Diocese sought summary judgment on the basis of affidavits and contemporaneous emails and meeting notes that "strongly suggest[ed] that it had no knowledge of the alleged harassment until after Rojas's employment ended."

So, we have a problem here. Rojas tries to repel summary judgment through an affidavit and deposition testimony that would support her claim. But other documents in the case, including the complaint itself, does not support this sworn testimony. The case is dismissed. Although witness credibility is for the jury, the Court of Appeals has previously held:

in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether ‘the jury could reasonably find for the plaintiff,’ ... and thus whether there are any ‘genuine’ issues of material fact, without making some assessment of the plaintiff’s account.

Does this rule make sense? It might. The courts might be doing plaintiffs' attorneys a favor in adopting this rule. With these kinds of inconsistencies, the plaintiff would get destroyed on cross-examination if the case ever went to trial. The Supreme Court has not adopted this approach to summary judgment, but it probably would if given the opportunity. Courts are sensitive to back-door efforts to force a trial through inconsistent summary judgment affidavits.

The serious inconsistencies between plaintiff's summary judgment submissions and her prior sworn statements and judicial admissions allow the Court of Appeals (Cabranes, Hall and Miner) to affirm the grant of summary judgment. The Court reminds us that district courts should not "routinely engage in searching, skeptical analyses of parties 'testimony' in opposition to summary judgment," particularly if there is a plausible reason for the inconsistencies. But in certain extraordinary cases, the trial court may dismiss the case if it thinks the summary judgment affidavits are sham. Otherwise, those affidavits "would license the mendacious to seek windfalls in the litigation lottery." As plaintiff in this case did not explain the discrepancies, summary judgment was proper.