I have to admit that I generally love it when a federal court judge begins an opinion with a flourish like this: “December 20, 2011, was defining day for Appellant Angela Powell-Pickett.” Almost made me think of Dickens’ “It was the best of times, it was the worst of times…” (OK, maybe not quite.) But I knew from that first line in the court’s opinion in would be a good one. And I wasn’t disappointed.
You see, on December 20, 2011, as the court points out, Ms. Powell-Pickett finally had her deposition taken in her lawsuit against her former employer after she had “(apparently) fainted during the first and had not shown up to the second.” The third time definitely was not the charm for Ms. Powell-Pickett, however, because her answer to virtually every question asked of her was some variation on the theme of “I don’t recall.” As the court noted, “[s]he simply refused to testify about her own case.”
Not surprisingly, AK Steel filed for summary judgment at the district court level. Also, not surprisingly, Ms. Powell-Pickett responded with what appears to have been a detailed affidavit in which she provided examples of alleged mistreatment at the hands of her employer, but which “offered no explanation for the return of her memory.” AK Steel moved to strike the affidavit because it contradicted her sworn deposition testimony. The district court granted the motion and then granted the company’s summary judgment motion on her claims of harassment, discrimination, retaliation, and interference with her FMLA rights presumably based almost entirely on evidence presented by the company and the lack of any factual opposition from Ms. Powell-Pickett.
On her appeal, the Sixth Circuit rejected Ms. Powell-Pickett’s argument that the district court erred in striking her affidavit because her affidavit did not contradict, but merely “clarified” what she claimed was self-contradictory deposition testimony. Responding to this argument, the court stated that her deposition testimony was not conflicting because, in fact, on only one occasion did she even “come close” to discussing her claims against the company. On that occasion, she was asked what problems she had had with her supervisor and she responded, “harassment, discrimination, retaliation” due to her EEOC charge. The court stated, however, that this “oblique response does not conflict with the direct answer, ‘I don’t recall,’ that Powell-Pickett habitually gave when asked, again and again, to say what AK Steel had done to her.”
Ms. Pickett-Powell’s attorney also argued on appeal that the “hard questioning” by AK Steel’s counsel would cause “any person uneducated in the law to become forgetful or silent.” But the court dismissed this claim as well, noting that the questioning was not particularly harsh: “Although at times she plainly withdrew, she did so mainly when presented with her own apparent lies or inconsistencies. Under the circumstances, her lack of memory about the alleged wrongs she suffered was too complete to appear unintended. No one suppressed or hoodwinked her. She made no disguise of the fact that in support of her case, she just had nothing to say.”
Takeaway: The most important part of any employment litigation is going to be the plaintiff’s deposition. Here, the plaintiff made it easy for defense counsel by feigning a lack of recollection of facts that he could not revive via affidavit. But it also appears that the attorney also was aided by the fact that the employer had armed him or her with documentary evidence that highlighted inconsistencies with the plaintiff’s allegations. Document, document, document.