Contradictory summary judgment affidavit dooms disability discrimination claim

In this disability discrimination case, the plaintiff sued the County of Westchester after he was terminated from his position as Director of Fiscal Affairs for the Board of Legislators. The district court granted summary judgment, finding the jury cannot find in plaintiff's favor because there is no evidence that the decisionmaker held an discriminatory intent. The Court of Appeals affirms, and the case is over.

The case is Daly v. Westchester County Board of Legislators, a summary order issued on July 2. Plaintiff's disability was his back injury. The supervisor who fired plaintiff was Benjamin Boykin, Chairman of the Legislature. While plaintiff never spoke with Boykin about his disability, the Court looks for circumstantial evidence that Boykin knew about it. 

The best evidence to show that Boykin knew about plaintiff's disability was plaintiff's summary judgment affidavit, in which he claimed to overhear Boykin tell another employee, "Dante is disabled." Dante is the plaintiff. Plaintiff also stated in his affidavit that Boykin and another supervisor, Power, pressured plaintiff to say he was unable to perform his job duties because of his disability. That sounds like great evidence that would support any claim for disability discrimination. But we have a problem.

As the Second Circuit sees it, the problem is that, when defendant's attorney took plaintiff's deposition, he was "asked if any reference was ever made by Boykin and Power about his disability, and he responded, 'No, not at all.'" What do we do about this contradiction? The Second Circuit has held that you cannot create an issue of fact on a motion for summary judgment with an affidavit that contradicts the sworn deposition testimony. The reason for this is the Court does not want people to "clean up" their cases when the motion is on the table when they had a chance to give clear testimony at deposition on a critical issue in the case. When that happens, such an affidavit looks suspicious.

You could argue that the contradiction was an illusion and plaintiff's testimony can be reconciled. More broadly, you could argue the contradictory affidavit creates a true issue of fact for trial and that it simply creates a credibility issue for the jury to sort out. I have no doubt that some juries may overlook the deposition testimony and instead credit the version of events set forth in the affidavit. My guess is, in addition to the Court's concern that parties will "create" an issue for trial at the last minute, the Court probably thinks the plaintiff will be beaten up on cross examination at trial to such an extent that the jury will disregard anything the plaintiff says in the case on any issue. Imagine a skilled civil defense lawyer impeaching the plaintiff at trial with contradictory sworn accounts.