Friday, November 11, 2011

Affidavits of Defendant’s Current Employees May Be Subject to Bias

            In Lopez v. Asmar’s Mediterranean Food, Inc., 2011 U.S. Dist. LEXIS 2262 (E.D. Va. Jan. 10, 2011), Judge Cacheris in a FLSA case where defendant had interviewed all of the employees whom plaintiff had identified as “similarly situated”, and had submitted affidavits from each of those employees contradicting plaintiff’s assertion that she worked overtime, denied summary judgment to the employer, stating that “because these affidavits are of Defendant’s current employees, they may be subject to bias.”  Lopez, 2011 U.S. Dist. LEXIS 2262 at *6.  The court stated that such current employee affidavits must be discounted, as discovery is not yet complete, and plaintiff has not had the opportunity to depose these witnesses.  See, e.g., Francis v. A & E Stores, Inc., No. 06 Civ. 1638, 2008 U.S. Dist. LEXIS 83369, 2008 WL 4619858, at *3 (S.D.N.Y. Oct. 16, 2008) (discounting affidavits of defendant's employees); Vaughan v. Mrtg. Source LLC, No. CV 08-4737, 2010 U.S. Dist. LEXIS 36615, 2010 WL 1528521, at *7 (E.D.N.Y. April 14, 2010) (“[C]ourts may assign the weight they think appropriate to affidavits from current employees because of the risk of bias and coercion.”)(citation and internal quotation marks omitted); Damassia v. Duane Reade, Inc., No. 04 Civ. 8819, 2006 U.S. Dist. LEXIS 73090, 2006 WL 2853971, at *4 (S.D.N.Y. Oct. 5, 2006) (declining to consider affidavits where plaintiffs had not yet had the opportunity to depose affiants); Morden v. T-Mobile USA, Inc., No. C05-2112, 2006 U.S. Dist. LEXIS 68696, 2006 WL 2620320, at *3 (W.D. Wash. Sept. 12, 2006) (discounting current employees’ declarations “because of the risk of bias and coercion inherent in that testimony”)

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