by John Gause, Esq.
April 7, 2005, Maine LAWYERS REVIEW
In a recent Whistleblowers’ Protection Act claim decided by a divided Law Court,Stanley v. Hancock County Commissioners, plaintiff tried a somewhat different approach when responding to defendants’ motion for summary judgment. Instead of citing record authority to deny some of the defendants’ statements of material facts, plaintiff claimed that the statements should be disregarded because the affidavits they were based on were made by interested parties, and, as such, they could not establish facts as a matter of law. The Law Court disagreed, and it granted summary judgment for defendants because of plaintiff’s failure to expressly deny the statements and support the denials with record citations. In so doing, the Court bypassed a rule that juries must be allowed to assess the testimony of interested witnesses at trial, even if the testimony is uncontradicted by other evidence.
Ronald Stanley had worked in Hancock County’s maintenance department for six years when he was fired in March 2001. Starting in 1997 he repeatedly complained to the County Commissioners and later to his supervisor that he was being told to illegally perform electrical work without a license. In 2000 the Commissioners told Stanley’s supervisor to find a reason to fire Stanley. On January 19, 2001, the supervisor wrote a memo to the Commissioners recommending Stanley’s termination with one of the reasons being that Stanley failed to comply with directions. At his termination hearing, Stanley told the Commissioners that he had recently once again been ordered to perform electrical work illegally, and he showed them several electrical work orders that his supervisor wanted him to complete. The Commissioners voted to terminate Stanley’s employment after the hearing.
Stanley brought a Whistleblowers’ Protection Act claim in state court against the Commissioners. After the close of discovery, the Commissioners moved for summary judgment. In support of their statement of material facts, the Commissioners each submitted an affidavit stating that they terminated Stanley’s employment because he abused break and lunch policies, came in late and left early without permission, poorly performed his work, and was rude and argumentative. They also claimed that Stanley’s complaints about having to perform electrical work were irrelevant to their decision.
Stanley responded to most of these statements as follows:
Plaintiff admits that this is what is contained in [the] affidavit, but notes that, to the extent this statement reflects the affiant’s state of mind or opinion, the Judge is free to completely disregard this self-serving statement, as it is not from a disinterested witness. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, [150-51, 120 S.Ct. 2097] (2000) (citations omitted).
In addition, in support of his objection to the Commissioners’ motion, Stanley offered his own statement of forty-nine additional facts, which set forth the basis for his claim, including the frequency and timing of his protected complaints and the statement by his supervisor that he was told to find a reason to fire Stanley.
The Law Court held that Stanley had established a prima-facie case of Whistleblower discrimination in that he was fired shortly after complaining of illegal activity. Nevertheless, the Court held that Stanley did not properly controvert the Commissioners’ asserted facts about their reason for firing him, and, as such, Stanley had admitted those facts. Accordingly, summary judgment was entered for the Commissioners because the Court held that Stanley had admitted that he had been fired for nondiscriminatory reasons and that his protected Whistleblower activity did not factor into the termination decision.
With respect to Stanley’s argument that the affidavits should be disregarded because they were made by interested witnesses, the Court made the following observation:
The rules permit parties to rely on the affidavits of interested witnesses, including themselves, to establish or dispute material facts. A cornerstone of the rationale for having a summary judgment process is that a trial is not warranted if a party cannot identify admissible evidence that establishes an actual factual dispute. If we were to interpret the Rule as Stanley suggests, Rule 56 would be rendered a nullity. As applied here, Stanley’s approach would compel us to disregard the facts he asserted in his additional statement of material facts because the statement is based on his own affidavit and deposition, both of which can be characterized as self-serving statement by a witness who is not disinterested. We reject this approach.
But the rule Stanley cited stands for something different. It does not suggest that testimony by interested witnesses cannot be considered at summary judgment. A court certainly can do that, and such testimony can be used to create a factual dispute. Rather, the authority holds that such evidence, even if uncontradicted by other evidence, cannot be used to establish a fact without resort to a credibility determination at trial. This is because an interested witness has a motive to lie, and the existence of that motive alone justifies having a jury assess the witness’s credibility on the stand.
Stanley cited the United States Supreme Court case of Reeves v. Sanderson Plumbing, where the Court stated that, when deciding a motion for judgment as a matter of law, a court must disregard all evidence favorable to the moving party that the jury was not required to believe. According to Reeves, “the court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’” (quoting WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE)
Wright & Miller tells us that the inverse of the final caveat is also true, namely, a movant often cannot rely on the testimony of an interested witness to establish a fact as a matter of law. One of the cases cited by Wright & Miller is the 1899 Supreme Court decision, Sonnentheil v. Christian Moerlein Brewing Co. At issue was whether certain preferred creditors were aware that a deed of trust had been fraudulently made at the time of their acceptance of the deed. If they had been aware, they would have lost the property that passed to them under the deed. They testified that they had not been aware of a fraud. The Court held that, despite plaintiff’s claim that the testimony was uncontradicted, it was nevertheless proper to submit the issue to the jury because “while the jury had no right to arbitrarily disregard the positive testimony of unimpeached and uncontradicted witnesses, the very courts that lay down this rule qualify it by saying the mere fact that the witness is interested in the result of the suit is deemed sufficient to require the credibility of his testimony to be submitted to the jury as a question of fact.”
Not all evidence based on an interested witness is subject to this rule. Wright & Miller recognizes that there are circumstances in which the uncontradicted testimony of even interested witnesses must be believed. The Supreme Court has held that the mere fact that the witness is employed by defendant is insufficient, standing alone, to prevent her uncontradicted testimony from establishing a fact as a matter of law. The First Circuit Court of Appeals has held in one case that the testimony of a retained expert witness is sufficiently tainted by interest to require a jury determination, but it reached the opposite conclusion in a different case.
Where the witness is a person who has a clear financial interest in the outcome of the case, however, and the subject of the testimony is an amorphous concept such as intent, most courts hold that such person’s testimony must be submitted to the jury even if it is not rebutted by other evidence.
It makes sense that we have this rule. It is the jury’s job to determine whether a witness is telling the truth. One factor the jury can consider in making this determination, if available, is other evidence that contradicts the witness’s testimony. Another factor is the witness’s motive to lie. If the motive to lie is strong enough, the jury is permitted to consider that factor alone in deciding to disbelieve the witness. And the jury is aided in reaching its final decision by observing the witness on the stand.
In AEtna Life Insurance Co. v. Ward, decided in 1891, the Supreme Court discussed the jury’s role in assessing credibility as follows: “There are many things sometimes in the conduct of a witness upon the stand, and sometimes in the mode in which his answers are drawn from him through the questioning of counsel, by which a jury are to be guided in determining the weight and credibility of his testimony. That part of every case belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.” Similarly, Second Circuit Judge Jerome N. Frank made the following observation in 1949: “[T]he demeanor of an orally-testifying witness is always assumed to be in evidence. It is wordless language. The liar’s story may seem uncontradicted to one who merely reads it, yet it may be contradicted in the trial court by his manner, his intonations, his grimaces, his features, and the like. . . .”
Thus, in every case that a jury would be permitted to disbelieve a witness’s testimony based solely on her motive to lie and the manner in which she answers questions on the stand, that witness’s testimony cannot establish facts as a matter of law. To rule otherwise would be to usurp the constitutional right to a jury trial.
That is not to say that every case will go to the jury. Plaintiff still has to prove her case. Here, however, Stanley did point to circumstantial evidence that showed that his termination was motivated by his protected activity. He showed that his complaints of being forced to illegally perform electrical work came shortly before his termination and that the Commissions had instructed his boss to find a reason to fire him. The Court recognized that this established a prima-facie case of Whistleblower discrimination because “proof of conduct protected by the WPA followed in close proximity by an adverse employment action, gives rise to an inference that a causal connection is established.” The Court faulted Stanley, however, for not offering evidence in response to the statements of fact that were supported by the Commissioners’ affidavits.
Yet according to the rule enunciated by the Supreme Court in Sonnentheil, those affidavits, which came from opposing parties who had a clear interest in the outcome of the case, should not have been used to establish facts as a matter of law. Although they may have created a factual issue for trial, they did not eliminate the need for trial. A jury still had to evaluate the Commissioners’ testimony in light of their motive lie. As Stanley pointed out in his opposing statement of fact, the statements could be disregarded because the affidavits addressed issues of state of mind and the witnesses were not disinterested. No additional showing should have been necessary.