by Timothy K. Baldwin
The U.S. Court of Appeals for the 1st Circuit (whose rulings apply to all Rhode Island employers) recently affirmed summary judgment (dismissal without a trial) in favor of Amtrak on an employee’s claim of race discrimination. Critical to the 1st Circuit’s holding was its finding that the employee submitted no admissible evidence in support of his claims besides an affidavit in which he claimed race discrimination. The court disregarded the employee’s self-serving affidavit because he spoke in generalities and without personal knowledge of any actual discrimination.
1st Circuit relies on CBA between Amtrak and union
Gregory Garmon worked for many years as an Amtrak lineman. His duties included construction and maintenance of the rail service’s overhead wire system. According to Garmon, Amtrak changed its system for awarding overtime in 2012 to afford white employees more overtime opportunities than African-American employees. He contended that after the change, he received less overtime than before compared to his white coworkers. His case eventually reached the 1st Circuit.
The court of appeals began its analysis with an overview of the requirements for establishing a prima facie, or minimally sufficient, case of discrimination based on disparate treatment under federal law. To make such a case, an employee must show that he is a member of a protected class, he is qualified for his job, he suffered an adverse employment action, and there is a causal connection between his membership in the protected class and the adverse employment action. The court noted that Garmon is African-American, and it assumed that he is qualified for his job. As a result, it focused its analysis on whether his proffered evidence supported the existence of an adverse employment action.
The court observed that an adverse employment action typically involves a discrete change in employment status (e.g., hiring, firing, failure to promote, or reassignment with different responsibilities) or a decision that causes a significant change in benefits. Here, Garmon’s adverse employment action was based on the less tangible change of being denied overtime opportunities and suffering the associated loss of income.
The 1st Circuit noted that it has never addressed whether a reduction in overtime could amount to an adverse employment action, but it opined that the allegation could suffice in some circumstances. The court emphasized that such a determination is objective and should be made on a case-by-case inquiry, recognizing that workplaces aren’t idyllic retreats and an employee’s displeasure at work doesn’t elevate every act or omission by his employer to an adverse employment action.
Although it acknowledged that the denial of overtime could result in an adverse employment action, the 1st Circuit was skeptical of Garmon’s claim because a collective bargaining agreement (CBA) between his union and Amtrak set the ground rules for overtime assignments. Under the CBA, an Amtrak supervisor determined overtime needs by taking into account the weather, operational budgeting, and special projects. The supervisor then communicated Amtrak’s overtime needs to a union representative, who distributed overtime assignments among union members in accordance with a collaborative process set forth in the CBA.
The 1st Circuit observed that because the CBA governed the assignment of overtime, there was no evidence that Amtrak changed its overtime policies as Garmon had alleged. In the court’s view, the CBA also undercut his claim that Amtrak had a discriminatory intent because the union was deeply involved in overtime assignments.
1st Circuit disregards employee’s self-serving affidavit
The CBA put Garmon’s case on the ropes, but his affidavit, which the 1st Circuit observed was the only evidence he offered in support of his discrimination claims, was the death knell. The court took a dim view of the affidavit, finding it contained “unsupported, speculative assertions about the way overtime was determined and administered at Amtrak.”
The court applied its general rule that affidavits can have evidentiary value (even if they are self-serving) when they are based on personal knowledge, but they have no value when they “merely reiterate allegations made in the complaint, without providing specific factual knowledge made on the basis of personal knowledge.” In this case, the 1st Circuit found that Garmon’s ruminations about Amtrak’s overtime decision-making process were based on pure speculation and lacked personal knowledge. As a result, the court disregarded those allegations in the affidavit.
According to the 1st Circuit, the only allegation in the affidavit that might be based on personal knowledge was Garmon’s averment that his overtime opportunities were reduced by one-third. However, the court found that general statement wasn’t enough to constitute evidence to support his discrimination claim because it was based on his own “say-so” rather than “evidence of [an] actual reduction in overtime opportunities.”
The court noted that Garmon offered no evidence of his overtime opportunities before or after Amtrak instituted the allegedly discriminatory policy, nor did he provide evidence about the overtime opportunities available to his white coworkers. Because his say-so amounted to a bald assertion, the court granted summary judgment to Amtrak on his race discrimination claim. Garmon v. Amtrak, 844 F.3d 307 (1st Cir. 2016).
What this means for you
Many employers have faced discrimination claims when grievances primarily existed in employees’ minds. It’s easy for employees to make allegations of discrimination in their complaints at the outset of a case, but they must produce actual evidence of discrimination to survive a motion for summary judgment or win at trial. Some employees attempt to meet that requirement through self-serving affidavits. This case serves as a stark reminder that workplaces are not idyllic, not every grievance amounts to discrimination, and employees’ affidavits must be based on specific facts and personal knowledge.
Just like when they lay out their factual allegations in complaints, employees often make sweeping statements in their affidavits in support of discrimination cases. Employers should watch for self-serving affidavits to ensure that courts don’t afford them any evidentiary value.
To discuss this topic with Tim Baldwin, you can reach him by email at tbaldwin@whelancorrente.com or by calling him directly at 401-270-0330.