In reading a recent Fifth Circuit opinion affirming the dismissal of a employee’s claim of racial harassment involving the display of a noose, I am reminded of Mark Twain’s quote, "If you tell the truth, you don’t have to remember anything."  Its good advice to live by and even better advice for deponents and witnesses.

Nickey Brown brought a Title VII racial harassment claim against his employer, Oil States Skagit Smatco, alleging that his co-workers made racially derogatory remarks about him, subjected him to offensive racial graffiti and displayed a noose in his workplace.  These allegations often have EEOC Cause Finding and large financial settlement written all over them.  However, in this case, the district court dismissed Brown’s claims.  Why?  Brown provided materially inconsistent explanations for why he left his employment with his employer.

Not only was Brown a party to his Title VII action against his employer, he was also a party in a personal injury lawsuit.  In a deposition for his personal injury lawsuit he testified that he left employment because he was in pain all the time due to the injuries sustained in the automobile accident.  However, in this racial harassment case he testified that he left his job because of the severe harassment he endured.  Because of the directly inconsistent testimony, the trial court sanctioned Brown with dismissal of his lawsuit.  The Fifth Circuit upheld this decision.  You can read a full copy of the opinion here.

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