The U.S. Supreme Court issued its decision Tolan v. Cotton, 572 US __, 134 S.Ct. 1861, 188 L.Ed.2d 895  a year ago. But, many courts still do not appreciate its holding. I wrote about the decision in Tolan v. Cotton here. The decision in Tolan essentially fusses at lower courts for not reviewing motions for summary judgment properly. The lower courts should credit the testimony of the plaintiff employee in discrimination cases. Often, lower courts have essentially applied a standard requiring something more than just the plaintiff’s testimony. They have required some corroboration of the plantiff employee. The challenge in every discrimination case is that discrimination rarely occurs in the open. Discriminatory conduct typically takes place quietly behind closed doors. The reality is there often is no direct corroboration of the plaintiff’s testimony.  Tolan sought to address that reality.

The majority opinion in the Fifth Circuit’s recent decision ignored Tolan. The dissent in Valderaz v. Lubbock County Hospital District, No. 14-10761, 2015 WL 3877788 (5th Cir. 6/24/2015), cited Tolan, but the majority opinion affirmed the grant of summary judgment. In Valderaz, the parties disputed what occurred at a meeting between management and the plaintiff. The defendant, and ultimately the court, claimed that the employee said he intended to leave his job no matter what happened at that that meeting. But, Mr. Valderaz claimed he thought management had agreed to transfer him at that meeting.

The plaintiff had complained about perceived discrimination. He was a male nurse and complained that the female nurses stereotyped him in his unit. They made his job difficult. He asked for a meeting with management. He wanted a transfer. At the meeting, management claimed he agreed to leave his old job, knowing he would have to apply for new positions within the hospital system. The plaintiff, however, claimed he thought the hospital was offering him a transfer to any department. He claimed to have no idea he would have to re-apply for a new job.

The majority opinion found the plaintiff to not be credible because his affidavit said he thought there would be a transfer, while his deposition testimony indicated that he insisted he would leave his job no matter what – indicating he was quitting. Based on that supposed inconsistency, the majority opinion finds there is no evidence to support Plaintiff’s claim that he was terminated after that meeting. The hospital required Mr. Valderaz to apply for a new job within the hospital. No such jobs were available. So, the plaintiff said he was effectively fired after the meeting. The majority opinion disregarded Plaintiff’s own testimony and that of his wife (who also attended the meeting).

The dissent points out that Plaintiff’s deposition testimony was more nuanced than a simple statement that he was leaving no matter what. Indeed, it was the questions posed by the hospital’s lawyer that actually suggested he would leave that unit regardless of any transfer:

Q: And you made that determination that you were not going back into that [unit where he was being harassed]?

A: That unless the situation, that the unsafe situation was resolved, in an effective manner for me to practice in a safe environment, that is correct.

Q: Oaky. So your decision on April 11th not to go back was not dependent upon any promise that you be transferred someplace else, it was based on your feeling that that was not a place that you could thrive and not a place that you could be safe and not a place that you were going to take the risk of going back to, correct?

A: Unless the situation was — the hostile work environment situation was resolved.

The employer’s lawyer argued this chain of questions showed the employee was resolved not go back to the department no matter what. But, as the dissent pointed out, no he was saying he would go back to that department if the situation was resolved. It is the questions that suggest he was prepared to leave no matter what, not the answers. In fact, immediately after this chain of questions, he was asked if he believed he was promised that he would be transferred. “Absolutely, ” he replied. The majority opinion did not construe the plaintiff’s deposition testimony in his favor. It ignored the testimony of his wife, who also attended the same meeting. The majority opinion ignored the holding in Tolan.

The Supreme Court reversed the lower court’s decision in Tolan, because the appellate court’s opinion reflected a “clear misapprehension of summary judgment standards.” Tolan, 134 S.Ct. at 1868. That lower court was the Fifth Circuit. Not much has changed…..

See the unpublished decision here.