Thursday, August 10, 2006

Seventh Circuit Considers Admissibility of Oral Evidence in Establishing Genuine Issue of Material Fact

Per Randolph v. Indiana Regional Council of Carpenters and Millwrights, 453 F.3d 413 (7th Cir. June 28, 2006):

…[A] a party cannot get summary judgment simply by pointing out infirmities in evidence used by its opponent to bolster the opponent's testimony. Wilson v. Williams, 997 F.2d 348, 349-50 (7th Cir.1993); McGinest v. GTE Service Corp., 360 F.3d 1103, 1113 n. 5 (9th Cir.2004). Oral testimony if admissible will normally suffice to establish a genuine issue of material fact, though the qualification "if admissible" is important, particularly in discrimination cases; a plaintiff cannot get to the jury merely by testifying that she thought the employer or other alleged discriminator had a discriminatory purpose. Murray v. Chicago Transit Authority, 252 F.3d 880, 888 (7th Cir.2001); Stagman v. Ryan, 176 F.3d 986, 996 (7th Cir.1999); Filippo v. Northern Indiana Public Service Corp., 141 F.3d 744, 750 (7th Cir.1998); Quinones v. Buick, 436 F.3d 284, 290 (1st Cir.2006). Plaintiffs cannot qualify as mind readers. But a plaintiff can testify, as the plaintiff in this case did, that she made a phone call and said thus-and-so in the ensuing conversation, or left a message on an answering machine (the union had an answering machine) that said thus-and-so. That is testimony to a statement she made, not, as the union would have it, testimony "to her own subjective beliefs of discriminatory conduct."The grant of summary judgment to the union was therefore erroneous.


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