In class actions there is always a named plaintiff (or two or three, etc). That person acts as the class representative and is the “flagship” for the entire case. When that individual does something to jeopardize their status as such a “representative,” the entire case might go away. That is precisely what happened in a recent class case for alleged unpaid overtime where the named plaintiff contradicted her deposition testimony, tried to change it to better bolster her case and failed. The case is entitled Tam et al. vs. Federal Management Co. Inc. et al. and issued from the Massachusetts Appeals Court.
The plaintiff here tried to, through the “abundant” use of the errata sheet, used to correct ostensible errors in a deposition, to make wholesale changes in that deposition testimony, where she admitted that she may have been exempt from overtime, in diametric opposition to her claims and theory of the case. Thus, her tactic came under the sham affidavit rule, which precludes a party from undermining their own deposition testimony so as to manufacture a factual dispute that would preclude summary judgment.
As the Judge aptly stated, “she admitted to subsidiary facts that contradicted her earlier statements and then ultimately had to acknowledge the opposite of what she initially had asserted.” The Judge then added that “given that the sham affidavit rule applies, Tam’s admissions about the nature of her job stand uncontradicted. There is, therefore, no genuine dispute as to the material fact that her job qualified as an exempt administrative position.”
The plaintiff, a property manager, submitted a 32-page errata, far after the due date for such a submission. She claimed her deposition was paused, not completed, which made her submission timely. The Court knocked down that argument quickly. On the merits, the Court noted that the plaintiff changed “no” answers from her deposition to “yes” and other answers from “yes” to “no” more than more than 60 times. As to fifty of the changes, the plaintiff claimed she either misunderstood a question or found it confusing. The Court shot that down as well, stating that “nothing in the deposition transcript suggests that the relevant questions were posed to Tam in a manner that overbore her will or that even could be characterized as intimidating, that the questions themselves were unclear, or that she failed to understand them.”
What the plaintiff was trying to reverse was her admission that she was exempt from overtime based upon her job description. The defendant’s brief labeled what she was trying to do as a “troublesome tactic” that would “undercut the very purpose of civil discovery and summary judgment.” They were right. This case serves as an object lesson for plaintiffs and lawyers when undertaking lawsuits on exemption issues.
Take heed plaintiffs (and their lawyers)…