In a recent decision, Heinsohn v. Carabin & Shaw, the Fifth Circuit found that an employee’s “self-serving” testimony created a material fact question. The Court also included language that should be of concern for employers when seeking summary judgement.

In Heinsohn, the Court reversed summary judgment in a pregnancy discrimination case in which the employer fired a legal assistant for making mistakes on the job that she denied making. The Fifth Circuit found that an employee’s “self-serving” deposition testimony created genuine issues of fact as to the employer’s alleged legitimate, nondiscriminatory reasons for terminating Heinsohn.

The employer terminated Heinsohn two weeks into her maternity leave for allegedly missing deadlines and trying to cover up the same. The employer discovered the missed deadlines while Heinsohn was on maternity leave, but never contacted her for an explanation. Instead, the employer wrote Heinsohn a letter stating it was terminating her employment, but failed to provide any underlying reasons.

Relying on the McDonnell Douglas framework, the Fifth Circuit reviewed the employer’s motion for summary judgment. The Court explained “in the context of a garden variety motion for summary judgment,” once an employee meets “her burden of producing or relying on evidence that refutes or contests the employer’s evidence of a legitimate, nondiscriminatory reason, there is often a genuine issue of material fact as to the veracity of that reason,” which “precludes summary judgment.”

The Fifth Circuit held that the district court erred in striking portions of Heinsohn’s deposition testimony, because it was improperly assessing credibility at the summary judgment stage. Notably, the Fifth Circuit added that the district court erred by rejecting Heinsohn’s deposition statements as “self-serving” while accepting those of the employer.

“Simply put,” said the Court, “Heinsohn’s statements are no more and no less self-serving than those of the others. If we toss Heinsohn’s deposition, we must also toss the depositions, affidavits, and declarations of the others for the same reason. To hold otherwise would signal that an employee’s account could never prevail over an employer’s. This would render an employee’s protections against discrimination meaningless.”

In wording that should concern employers, the Court added that, “When, as here, a motion for summary judgment is premised almost entirely on the basis of depositions, declarations, and affidavits, a court must resist the urge to resolve the dispute—especially when, as here, it does not even have the complete depositions. Instead, the finder of fact should resolve the dispute at trial.”

Frequently employers rely on summary judgement, or the threat of summary judgement, to resolve cases without having to go to trial. The above language indicates that it may be easier now for plaintiffs to defeat summary judgment motions through deposition testimony and affidavits. Undoubtedly, the Heinsohn language will appear in almost every plaintiff’s brief in opposition to motions for summary judgement. As they consider settlement, employers must factor in the Fifth Circuit’s direction to lower courts in Heinsohn when reviewing motions for summary judgment.