EEOC charge is admissible evidence on summary judgment motion

The Second Circuit has revived a racial discrimination claim against the Village of Southampton, ruling that the plaintiff survives summary judgment, in part, through his EEOC affidavit which lays out the facts needed to show that he was denied a promotion because he is white.

The case is Broich v. Incorporated Village of Southampton, a summary order decided on February 15. The EEOC charge initiates the litigation, and by the time the case reaches the summary judgment stage, it may very well have been forgotten, hiding in the EEOC/administrative folder at the bottom of a very large pile. But since the charge is signed under oath, its contents are admissible evidence just as an affidavit is admissible. The Court of Appeals (Cabranes, Straub and Livingston) reminds us of that in this case. This may be the first time the Second Circuit has said that an EEOC charge is admissible evidence on a summary judgment motion; the case it cites for the admissibility of Broich's EEOC charge is a non-employment civil rights case filed by an inmate who submitted an affidavit in opposition to summary judgment.

The district court overlooked the EEOC charge, but the Court of Appeals says that it helps to make out plaintiff's prima facie case, i.e., that he was denied a promotion under circumstances creating an inference of discrimination. The Court of Appeals says:

Broich alleged in his sworn EEOC charge that he was white, that he sought and was qualified for a promotion to detective sergeant, and that the promotion went to an African-American detective in the Southampton Village Police Department (Herman Lamison) who had less time in rank and less supervisory experience than Broich. Broich also alleged that Lamison was promoted to provide political advantage to one of the candidates in the upcoming Southampton mayoral election, in which race was the salient issue.

While defendant notes that the EEOC charge also suggests that other factors played a role in denying plaintiff the position, the Court of Appeals notes that defendants are "merely point[ing] out opposing inferences that could be drawn from Broich's sworn statement. It is not for us to choose inferences ... and determine which inference is most likely." This is nice language for plaintiffs trying to avoid summary judgment, but since this is a summary order, it's not binding on any other court (although it reflects a true interpretation of Rule 56).