Can a district judge, while considering a motion for summary judgment, provide an explanation and/or rationale for the changing testimony of one of the defendant's managing agents? Well, actually, that's not the question, because the answer is known to be yes. The real qusetion is can they do it and always get away with it? The answer is "no" it appears from the Fifth Circuit's recent opinion in Burton v. Freescale Semiconductor.
Burton was a disability discrimination and retaliation case. The employer was granted summary judgment by District Judge David A. Ezra of the Western District of Texas. Judge Ezra was particularly solicitous of the employer's management, going so far as to offer on his own a rationale and explanation for the changing testimony of one of the employer's management personnel.
Here's what happened: Bruce Akroyd, the employer's decision-maker, explained that he elected in part to terminate Burton because Burton's supervisor, Patricia Alvarez, had told him that Burton had used the Internet at work without authorization. So, naturally, Alvarez was asked at her deposition about what she had told Akroyd about Burton's Internet use. The Fifth Circuit summarized her deposition testimony as follows:
Alvarez, however, testified she never talked to Akroyd about Burton's performance. She also testified she did not know who made the recommendation to terminate Burton and did not participate in any conversation about terminating Burton's assignment. Following a break in the deposition, Alvarez then changed her testimony to say she in fact recommended Burton's termination -- but that she believed she did so "slightly before" the ... Internet incident, and it was not to Akroyd at all but rather to one "Shawn Stroud," her "section manager."
So, after a break in her deposition during which time Alvarez' had an epiphany, was counseled by defense counsel as to the unhelpfulness of her testimony or something else perhaps happened, the employer's agent came up with something very different and much more helpful to the employer.
Supposedly the whys and wherefores in such changes to a witness's testimony are for a jury to figure out. Too often, though, trial court judges take the task upon themself, as did U.S. District Judge David A. Ezra in this case as the Fifth Circuit explained:
The district court [leapt to the defense of the company's witnesses], reasoning that "a person cannot be expected to be able to recall every single detail from two-and-one-half years prior" and rejecting Burton's "attempts to pick apart each person's deposition testimony line by line." Similarly, the district court reconciled Alvarez's changing testimony by concluding that she changed it because "she wanted her testimony to reflect the correct answer."
Perhaps doubly disappointing is that Judge Ezra, while supplying the company with what he regarded as a winning explanation, did not bother or see the need to characterize Alvarez's evolving testimony as reaching ultimately the true answer, as opposed to the merely correct. Perhaps Judge Ezra had read Stanley Fish's blog posting for the New York Times a while back, The True Answer and the Right Answer, and was taken particularly by this observation by Mr. Fish: "The right answer is the answer a system invested in its own machinery will recognize no matter what the true facts may be." Judge Ezra invested as he appeared to be granted summary judgment to Freescale.
That, however, was the most basic of errors as the Fifth Circuit explained in reversing Judge Ezra:
This approach is inconsistent with fundamental rules governing summary judgment. By choosing which testimony to credit and which to discard, "the court improperly weighed the evidence and resolved disputed issues in favor of the nonmoving party.
Judge Ezra was appointed to the U.S. District Court in 1988 by President Reagan. He surely knows better than this. Any yet found himself so invested in the summary judgment machinery to which the U.S. district courts have devolved that he could not wait for resolution of the true facts.For a further discussion on the decline of the nation's federal district courts: Arthur Miller, Simplified Pleading, Meaningful Days in Court and Trials on the Merits: The Deformation of Federal Civil Procedure in the New York University Law Review.
Robert L. Abell
www.RobertAbellLaw.com
