There are a number of institutional obstacles placed in the way of plaintiffs in employment lawsuits. One of those obstacles is the "self-serving" affidavit principle. Numerous cases have held that a plaintiff must have more than a "self-serving" affidavit on which to base his claim . . . as though there was such a thing as affidavits which were not "self-serving." Actually, there are affidavits by impartial witnesses in all cases, but such witnesses are rare. Third party witnesses are especially rare in employment actions, because any current employee who testifies in support of a plaintiff does so at the risk of his/her job.
In a motion for summary judgment, the plaintiff’s affidavit is often the only affidavit supporting the plaintiff. While, the employer will have an affidavit from the alleged wrong-doer and perhaps one or two other employees. Any current employee who testifies for the plaintiff does so at the risk of his/her job. So, very few come forward. Yet, the alleged wrong-doer, always a supervisor, has as much to lose as a terminated employee. So, is not his affidavit just as "self-serving" as the terminated employee’s?
The Seventh Circuit has recognized this disparity. In Hill v. Tangherlini, No. 12-3447 (7th Cir. 8/1/13), the court expressly overruled precedent that found against a plaintiff who relied on his/her own affidavit to tell his side of the story in a motion for summary judgment. The plaintiff still lost his appeal. But, the court went to some length to clear up this area of law that did no make sense.
See the court’s opinion.