Seventh Circuit Criticizes Court for Disregarding Uncorroborated EvidenceBy Tiffany M. Williams, Litigation News Associate Editor – October 22, 2010
In a recent opinion, the U.S. Court of Appeals for the Seventh Circuit pointedly reminded district courts and employment litigators that even “uncorroborated” testimony of workplace harassment will still prevent summary judgment. Berry v. Chicago Transit Authority. In Berry [PDF], the court criticized the district court for mistakenly disregarding the plaintiff’s uncorroborated version of the facts supporting her hostile work environment claim.
Berry, a female carpenter, filed a hostile work environment claim against the Chicago Transit Authority alleging that a male coworker, Carmichael, attempted to remove her forcibly from a card game during a rest break. According to the opinion, Berry claimed that Carmichael sexually harassed her when he “grabbed her breasts, lifted her, and rubbed her body against his.”
Berry reported the incident to her supervisor, Gorman, who allegedly called her “a pain in the butt,” and predicted that she would lose her job if she filed charges. Gorman allegedly claimed, “he was going to do whatever it takes to protect the CTA.” The internal investigation, based on eyewitness interviews, concluded that Berry was the aggressor and had sat on Carmichael’s lap.
The district court determined that Carmichael’s actions were sufficient to establish a hostile work environment, but still granted summary judgment in favor of the CTA. Despite Berry’s assertions that the internal investigation was sabotaged by Gorman, the district court found the CTA had taken “prompt and reasonable steps to discover and rectify the sexual harassment.”
The Seventh Circuit disagreed with the district court and reversed. The appellate court reaffirmed its earlier decisions holding that a single act of harassment may be severe enough to create a hostile work environment. It noted that assertions, like Berry’s, of unwanted physical contact with intimate body parts are “among the most severe types of sexual harassment,” and “qualify undeniably as unwelcome sexual conduct that established a hostile environment.”
The Seventh Circuit’s opinion criticized the district court for “mistakenly disregard[ing]” Berry’s “uncorroborated” testimony that her supervisor, Gorman, made dismissive comments evidencing his intent to sabotage the internal investigation. According to the appellate court, Berry’s testimony alone could allow a reasonable factfinder to conclude that Gorman “thwarted any legitimate investigation” and the “CTA was therefore negligent or worse in responding to her report of harassment.”
The court specifically noted: “[i]t is worth pointing out here that we long ago buried—or at least tried to bury—the misconception that uncorroborated testimony from the non-movant cannot prevent summary judgment because it is ‘self-serving.’”
Reactions to Berry: Let the Jury Decide
Experienced employment litigators are not surprised by the Berrydecision. “The law is clear that one act can be severe enough to satisfy the requirement,” observes Wayne J. Positan, Roseland, NJ, former cochair of the ABA Section of Litigation’s Employment and Labor Relations Committee. “As long as sworn testimony [from Berry] was produced . . . [supporting her version of the facts], I don’t know how a court could avoid saying there is an issue of fact even if the supervisor denies the statements,” says Positan.
Geoffrey J. Vitt, Hanover, NH, cochair of the Section of Litigation’s Pro Bono and Public Interest Committee, believes the Seventh Circuit reached the right result in Berry. “This was the classic case of ‘he said’ versus ‘she said,’ and the fact that the plaintiff’s version was uncorroborated should not take it out of the hands of the jury,” notes Vitt.
Is Summary Judgment Still an Effective Tool?
Summary judgment in hostile work environment cases remains viable and the Berrydecision does not dilute its effectiveness, says McCray S. Pettway, Boston, cochair of the Diversity Subcommittee of the Section’s Pro Bono and Public Interest Committee. Pettway advises her Fortune 500 corporate client on harassment cases as its chief employment attorney. She notes that, “[even] partial summary judgment narrows the issues and may help the parties resolve a matter quickly prior to trial or even at trial.”
In litigating harassment cases, Positan and Pettway offer the following advice.
- Command a solid understanding of the events.
- Assess witness credibility early.
- Use depositions to get the full story in the deponent’s words.
- View motions to dismiss and summary judgment as tools to potentially narrow the case and educate the judge.
- Reassess the case at each material development to determine whether to continue to litigate or seek another way to resolve the case.
Keywords: litigation, Seventh Circuit, summary judgment
- » Lapka v. Chertoff, 517 F.3d 974, 983 (7th Cir. 2008).
- » Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000) (“even one act of harassment will suffice if it is egregious.”).
- » Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir. 2006).
- » Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001).
- » Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.1995).
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