Whitaker v. Wisconsin Department of Health Services, 849 F.3d 681 (7th Cir. 2017), recently served up a refresher on the role of self-serving affidavits in summary judgment proceedings. In Whitaker, the plaintiff alleged that she was fired by a state agency as a result of intentional discrimination based upon her disability. Whitaker suffered from chronic back pain and was granted repeated and consecutive leaves over the course of several months. After the third consecutive request for leave, her employer granted another leave, provided a date to return to work, and informed the plaintiff her leave was otherwise exhausted for the year. After Whitaker failed to return to work on the designated date, the agency fired her.
Whitaker brought suit under the federal Rehabilitation Act, claiming she was illegally terminated due to her disability. The Wisconsin Department of Health Services sought summary judgment on multiple, independent grounds. The district court granted summary judgment for the agency, finding that Whitaker failed to provide evidence that she could perform the essential functions of her position, a pre-requisite of a valid claim.
On appeal, the Seventh Circuit affirmed. The court explained that while Whitaker was disabled within the meaning of the statute, regular attendance was an “essential function” of her employment and she failed to provide evidence regarding the effectiveness of her course of treatment or the medical likelihood of her recovery. Because the medical notes provided by Whitaker stated nothing other than “medical leave,” Whitaker needed to rely upon her own affidavit to survive summary judgment on this issue.
Here, the Seventh Circuit reiterated that “self-serving” statements like a party affidavit can and will be used as “perfectly admissible evidence through which a party tries to present its side of the story at summary judgment.” Id. at 686. Thus, Whitaker’s affidavit declaring she would have been able to return to work if only granted additional leave before her termination could have been a “legitimate method” to challenge summary judgment. Id. at 685. However, the Seventh Circuit found Whitaker’s affidavit failed to provide a sufficient evidentiary foundation for this statement—namely, evidence that medication improved her condition, or the medical likelihood that she would be able to return to work on a regular basis.
The take-away? Self-serving assertions on the ultimate issue in a case can be acceptable, but must include an evidentiary basis for those assertions.