A new decision from the U.S. Court of Appeals for the 7th Circuit provides a stark reminder to employers of the ease with which a former employee can get a lawsuit before a jury. Berry v. Chicago Transit Auth., Case No. 07-2288 (7th Cir. Aug. 23, 2010). Cynthia Berry alleged that a coworker sexually harassed her on a single occasion. She complained to a supervisor and then to a CTA EEO investigator. She also called the police. In addition to the harasser, there were three witnesses to the alleged harassment. None supported Berry’s version of events. The police concluded that Berry had been the aggressor. The CTA investigator reached the same conclusion and also concluded that Berry had not been sexually harassed.
Berry sued. The CTA moved for summary judgment, arguing that the court should enter judgment in its favor because there was insufficient evidence for a jury to enter a verdict for Berry. The trial court found that Berry’s uncorroborated assertions were not sufficient to create a genuine issue as to material facts, and entered judgment for the CTA. But on appeal, the 7th Circuit rejected “the misconception that uncorroborated testimony from the non-movant cannot prevent summary judgment because it is ‘self-serving.’ If based on personal knowledge or firsthand experience, such testimony can be evidence of disputed material facts. It is not for courts at summary judgment to weigh evidence or determine the credibility of such testimony; we leave those tasks to factfinders.” Berry at 6 (citations omitted). Because (at least according to Berry) her account was based on firsthand experience, the 7th Circuit held that it was sufficient to create a genuine issue as to the material facts and, thus, to avoid summary judgment.
This case illustrates the importance of discovery in the litigation process. Defendants’ counsel should be able to tailor deposition questions in such a manner as to uncover the truth and to avoid creating disputed issues of material fact. Of course, despite defense counsels’ best efforts, an occasional plaintiff who is willing to lie under oath during a deposition may succeed in getting his or her case to a jury just by saying the right things, but that plaintiff’s credibility easily can be attacked at trial.