In Kenney v. Swift Transportation, Inc. (8th Cir. 10/17/03), the 8th Circuit reversed summary judgment for the employer on a claim of race discrimination in hiring because the district court had disregarded the plaintiff’s affidavit and had thereby made a credibility determination impermissible on summary judgment.
The dispute concerned whether a representative of the employer had told the plaintiff not to bother filling out the entire 10-year employment history called for on the application. The plaintiff attested to this in his affidavit; the employer denied it and said it refused to hire the plaintiff because of the incompleteness of his application.
If the plaintiff’s version was correct, it would have been evidence the employer’s stated reason for not hiring him — failure to fully complete the application — was a pretext. It also would have directly contradicted the instructions on the application, which warned: “ANSWER ALL QUESTIONS. . . THIS APPLICATION WILL NOT BE CONSIDERED UNLESS COMPLETE.”
The court said: “While there is no other evidence supporting his version of the conversation, and his assertion is contrary to the statement in the application saying the ten years’ employment history was required, [the plaintiff’s] testimony is sufficient for a jury to find that [the employer’s] proffered nondiscriminatory reason for not hiring him is pretextual.”
Employers and their attorneys must try to use more ingenuity in rebutting such self-serving assertions by plaintiffs.
At some point, courts should (and do) in effect weigh the evidence in ruling on summary judgment. While the Supreme Court has said that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when she or] he is ruling on a motion for summary judgment. . . .” Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 255 (1986), it has also said that summary judgment is proper if a reasonable jury could not find in favor of the non-moving party. If the evidence is overwhelmingly against the non-moving party, such that his or her self-serving testimony is only a “scintilla” of evidence against a mountain of contrary proof, the motion should be granted.
In a case like this, an effort could be made to present more evidence in favor of the employer’s position. For example, it would have been helpful if there was evidence the individual who allegedly said the application did not have to be complete had rejected other applicants for failure to provide complete employment histories.
Another approach is side-stepping the factual dispute by arguing it is not material because other evidence is determinative.
For example, perhaps that person did not make the decision, or it could be said that even if the application had been complete (or its incompleteness disregarded), the plaintiff would not have been hired because of his felony conviction (which was why he didn’t want to give 10 years’ history — he spent 6 of them in prison for receiving stolen property, a crime not entirely irrelevant to hiring a trucker).
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