The Fifth Circuit issued an interesting decision reversing summary judgment. In Heinsohn v. Carabin and Shaw, No. 15-50300, 2016 WL 4011160 (5th Cir. 7/26/2017), the higher court found the employer did not have policies in place to support its claim that it fired a Legal Assistant for missing an appeal deadline and for allegedly trying to cover up the missed deadlines. In Heinsohn, the lower court granted summary judgment, finding that the plaintiff failed to show genuine issue of material fact regarding the reasons for her firing.
According to the Fifth Circuit, the law firm failed in showing it had a practice of requiring a Legal Assistant to take any particular action in response to a missed deadline. The plaintiff claimed she did not miss any deadline. But, noted the court, even if she did, the law firm did not present evidence indicating it had a policy requiring the plaintiff to report a missed deadline. For example, the senior partner testified he would “expect” any employee to report a missed deadline or come to the attorney and ask for guidance. The court asked what does “expect” mean? Does that mean “assume,” or does it mean “require”? Heinsohn, at p. 24 (slip opinion). There was no written policy and the senior partner’s explanation was ambiguous.
The challenge for the employer was that the actual supervising attorney testified he did not really have a problem with the Legal Assistant supposedly missing a deadline. He seemed satisfied that the two missed deadlines were not her fault. As many lawyers have advised employers, employers need to have written policies in place. Without clear policies, the employee will be able to show genuine issue of material fact regarding performance issues.
The higher court also addressed the allegation that Mrs. Heinsohn was fired for being out on pregnancy leave. The plaintiff testified via an affidavit that the law firm wanted a guaranteed, specific date by which she would return to work. She said that was the employer’s true concern, that she could not specify a date when she would return from pregnancy leave. The lower court struck that portion of the plaintiff’s testimony saying it contradicted her email exchange with the law firm. But, the Fifth Circuit disagreed, noting that Fed.R.Ev. Rule 1002 does not require a witness to provide the best evidence in her power. Heinsohn at p. 10. That is, her testimony in an affidavit was sufficient to create a factual issue, even if one interpretation of her email would indicate something to the contrary. As the court noted, when the magistrate judge discounted one source of testimony in favor of another, it was assessing credibility.
The court also relied on Tolan v. Cotton, 134 S.Ct. 1861 (2014) and Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015), in finding that that Mrs. Heinsohn’s testimony should not be disregarded simply because it is “self-serving.” If all such testimony was so discounted, then the testimony of the employer and its employees should be similarly disregarded. Heinsohn, at p. 29. See opinion here.
It is unfortunate that some lower courts still appear to not understand the ruling in Tolan v. Cotton.