In Saborit v. Harlem Hospital Center Auxiliary, Inc., et al, 19-cv-4686, 2021 WL 1063241 (S.D.N.Y. March 19, 2021), the U.S. District Court for the Southern District of New York (in an opinion authored by Judge Lewis Liman) denied defendants’ motion for summary judgment on plaintiff’s disability discrimination claims asserted under the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law.
Plaintiff, who worked for defendant as an assistant personnel director in Harlem Hospital’s HR division, asserted that he informed defendant’s human resources director (Nedd) that he was HIV-positive and requested several reasonable accommodations necessitated by side effects of his HIV medications, and that after he disclosed his HIV status, defendants began to discriminate and retaliate against him.
The court summarized plaintiff’s evidence (which it viewed, as it must on a motion for summary judgment, in the light most favorable to the non-moving party), as follows:
Plaintiff informed Nedd of his disability in mid-December 2018. Prior to informing Nedd of his disability, Plaintiff had received favorable (albeit, limited) feedback on his work performance. After he informed Nedd of his disability, he was moved out of his private office, required to travel to a different floor to use the restroom (and to inform co-employees of his frequent bathroom breaks), reduced in his supervisory responsibilities, and ultimately terminated from employment. His evidence consists primarily of his own deposition testimony but it is also supported by a prior consistent statement made to his sister who has submitted a declaration, see Fed. R. Evid. 801(d)(1), and testimony from a co-worker to his favorable performance and that others engaged in similar conduct as Plaintiff without being terminated.
In response to defendants’ argument that “plaintiff’s self-serving testimony is insufficient to create a disputed issue of fact,” the court noted that the Second Circuit authority upon which they relied – including Deebs v. Alstom Transportation, Inc., 346 F. App’x 654 (2d Cir. 2009) and Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985) – “does not support such a broad proposition.”
Unlike in those cases, the court explained:
Plaintiff has opposed summary judgment here with testimony of concrete particulars and with testimony that is not subjective. For example, he has testified with specifics as to when he told Nedd of his disability and what he said, the specifics of the adverse actions taken against him, and the basis on which he claims that the asserted reasons for those actions are pretextual. Each element of Plaintiff’s testimony is hotly disputed by testimony from Defendants. But that does not eliminate the need for a trial; it creates the need for a trial. For example, Defendants’ denials that Plaintiff told Nedd of his disability is no less self-serving than Plaintiff’s claim that he reported the disability. On the record before the Court, each party has an interest in the outcome of the case and no party’s testimony should be assumed to be more self-serving than another’s. [Emphasis added.]
This decision teaches, among other things, that the status of testimony and evidence as “self-serving” – which, in our adversarial system, is of course going to be the case – does not necessarily warrant a pre-trial dismissal as a matter of law.