The D.C. Circuit dismisses an interlocutory appeal of a disability discrimination case under the Congressional Accountability Act (“CAA”) on appellate jurisdiction grounds. The First Circuit concludes that Reeves v. Sanderson Plumbing Products Co. could not possibly mean what it says — that, at the summary judgment stage, a court must disregard all evidence favorable to the moving party that the jury is not required to believe.
Oscarson v. Office of the Senate Sergeant at Arms, No. 07-5391 (D.C. Cir. Dec. 12, 2008): The CAA, the one progressive plank in the GOP “Contract With America” circa 1994, imposes on Congress liability under a variety of labor-protective laws, including (for purposes relevant here) the ADA. But the CAA provides its own reporting and investigation commands, such as that a request for counseling be filed with the Senate’s Office of Compliance within 180 days of an alleged violation. 2 U.S.C. § 1402. The issue presented in this appeal is whether the 180-day requirement is jurisdictional. The defendant appealed denial of a motion to dismiss, reasoning that the 180-day requirement is jurisdictional.
The panel dismisses the appeal. It holds that even assuming that denial of federal sovereign immunity is immediately appealable (there is circuit split on this issue), the fact-bound nature of the 180-day requirement defies interlocutory review:
“Whether a CAA plaintiff timely requested counseling depends on the date of the alleged violation, which in turn depends on what constitutes a violation and on pinpointing the time of its occurrence. Here the SAA suggests that Oscarson knew or should have known of the injury underlying her claim when she ‘reasonably should have suspected that her rights were violated,’ Appellant’s Br. at 31, raising a question that can only be answered by considering at what point the alleged delay might be thought to amount to a violation. In a case of delayed accommodation, such as the present one, merits and timeliness of request for counseling are tightly meshed.”
Thus, the case returns for further adjudication of the merits.
Dennis v. Osram Sylvania, Inc., No. 07-2670 (1st Cir. Dec. 10, 2008): This is a retaliation case brought under New Hampshire state law. The employee, Dennis, alleged that he was dismissed for giving testimony in a sex harassment investigation involving a woman named Green. Dennis had been the EEO investigator. According to the opinion
“Dennis cites to several instances in his deposition where he was critical of Sylvania’s response to Green’s claims, such as the company’s ‘soft punishment’ of the alleged harassers and the slow pace with which it conducted the investigation of her claim. . . . [fn. 1] Dennis further noted in his deposition that Sylvania’s employees perceived that the alleged harassers ‘could do what they wanted because they were friends with [the manager]’; that there was a justified perception that it would be futile to file complaints against the manager’s friends; that it was inappropriate for Sylvania to have a public team meeting on the Green matter; that Green was ‘justified in being upset’ by Sylvania’s handling of her complaint; and that Sylvania’s issuance of a warning letter to Green in response to her reaction at the team meeting was ‘the stupidest thing [Dennis] heard.’ ”
Understandably, according to Dennis, this testimony put him on bad paper with the company’s attorneys:
“For example, Dennis claims that Paul Beckwith, Sylvania’s legal counsel, was ‘hostile’ to him during the deposition. Dennis also alleges that Beckwith raised his voice in response to Dennis’ inquiries about the strength of the Green case, exclaiming that he ‘doesn’t have time for this shit.’ Dennis further claims that during a break, when he sought guidance from Beckwith regarding whether he had to reveal his knowledge of a company manager’s romantic involvement with a subordinate, Beckwith, ‘in a forceful manner, ordered him to answer ‘yes,’ ‘no,’ or ‘I don’t recall.'”
Thereafter, Dennis found himself accused by the company of unprofessional behavior with a job applicant, named Molina. Dennis allegedly asked about (and disclosed to others) private marital and tax matters during the interview. When Dennis refused to sign an acknowledgement that his behavior was unprofessional, the company fired him. The decision makers denied knowing anything about the Dennis deposition, but Dennis perceived them as “looking away” during the critical meeting.
Dennis appealed from summary judgment. One of his key arguments was that the decision makers’ testimony about the foreknowledge of Dennis’ deposition ought not be credited, because under Reeves it constituted self-interested testimony that the jury need not believe. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000) (“the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses”). But the First Circuit, in so many words, declines to give this passage from Reeves its literal meaning:
“At summary judgment we need not exclude all interested testimony, specifically testimony that is uncontradicted by the nonmovant. See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 271-72 (3d Cir. 2007) (‘We cannot believe that the law precludes a party from presenting his own testimony on a summary judgment motion . . . . The fact is that in considering a motion for summary judgment the court should believe uncontradicted testimony unless it is inherently implausible even if the testimony is that of an interested witness.’). Indeed, the exclusion of interested testimony would make it difficult for an employer to present a legitimate nondiscriminatory reason when defending against a retaliation claim.”
Apart from blatantly avoiding a 9-0 Supreme Court holding, the analysis of the First Circuit also posits a false choice. An employer can meet its burden of proffering a legitimate, non-discriminatory reason with any admissible evidence, including (presumably) defendant’s own testimony. But when the court is presented with the question of discrimination or retaliation vel non, in the final stage of the burden-shifting method of proof, the uncorroborated testimony of the company’s witnesses about their own state of mind need and should not be credited on summary judgment. Reeves holds that it is left to the jury to evaluate the witness’s credibility.