How Courts Treat Inconsistent Statements In Employment Law Cases
You’re an employee sitting in a deposition in the middle of a race or wrongful termination case. A lawyer is asking questions. You’re under oath. You’re nervous. You’re trying to recall dates, conversations, who said what—and it’s not coming out the way you expected.
The opposing attorney’s questions feel strange. Leading. Twisted in a way that makes you pause. You start second-guessing yourself. You answer, then immediately wonder if you said it wrong. You try to clarify, but it only seems to get messier.
You walk out thinking: I should have said that differently.
Or worse: Oh, sht, that’s not what happened—why did I say that?
For an employee asserting any type of employment discrimination—gender, national origin, religious, or disability discrimination, that moment carries real weight. Deposition testimony is not just part of the case—it often becomes the version of events the court relies on.
That is exactly what happened in Rys v. Davis, No. 25-857, 2026 U.S. App. LEXIS 9552 (2d Cir. Apr. 2, 2026). Rys alleged race and constructive discharge, but after giving deposition testimony, she submitted a declaration that changed key details of her claims.
The United States Court of Appeals for the Second Circuit rejected it.
The Second Circuit Court of Appeals held that a party cannot create a factual dispute by submitting a later statement that contradicts prior deposition testimony. When those contradictions are “unequivocal[,] inescapable, [and] unexplained,” the court treats the new statement as a sham affidavit and disregards it.
That ruling ended the case.
Once the revised testimony was set aside, there was not enough evidence left to support the claims. Summary judgment for the employer.
This is where many employees misunderstand how employment law works. You cannot reshape your testimony after the fact to fix problems. Courts expect consistency, not revision.
This blog explains why. First, what a deposition actually is. Then, whether testimony can be changed. And finally, how courts determine when a statement crosses the line into a “sham.”
Legal Takeaway
Best Race Discrimination Lawyer Blogs on Point:
What Is A Deposition And Why Does It Matter In Employment Cases?
A deposition is part of the discovery phase of a lawsuit. In employment cases—whether involving race or wrongful termination—both the employee and the employer have the right to gather evidence before trial.
That process typically begins with written discovery: document requests and written questions. It then progresses to depositions.
A deposition is a formal, recorded question-and-answer session conducted under oath. Attorneys for both sides are present, and a court reporter transcribes every word. The result is a written transcript that becomes part of the official record.
That record carries significant weight.
Deposition testimony is routinely used in motions—especially summary judgment—where a judge decides whether a case proceeds or ends. In many instances, what an employee says during a deposition becomes the foundation of the case going forward.
It is not a draft. It is not flexible. And it is not something that can be casually revised.
For employees, this is often the first time their account is formally locked in under oath. That is why depositions play such a central role in employment litigation. Strong claims can weaken quickly if testimony is inconsistent, unclear, or incomplete.
Practical Tip: If you are an employee preparing for a deposition in a race or wrongful termination case, meet with your employment lawyer in advance to review the key issues and understand how your answers should be framed.
Best Wrongful Termination Attorney Blogs on Point:
Can An Employee Change Their Deposition Testimony After The Fact?
In most situations, no—not in a way that improves the case.
There is a limited ability to correct minor errors or clarify unclear testimony. But that is very different from replacing sworn answers with a new version of events.
Courts are firm on this point.
Under the “sham affidavit” doctrine, a party cannot create a factual dispute by submitting a later statement that contradicts prior deposition testimony. If the two versions conflict, the court may disregard the later statement altogether.
This rule preserves the integrity of the process. Without it, any employee or employer could avoid dismissal simply by rewriting testimony after seeing weaknesses in their case.
There is a narrow exception. If earlier testimony was genuinely confusing or incomplete, a later clarification may be allowed. But courts look for consistency. They do not permit strategic revisions that fix prior answers.
That distinction is critical.
Once deposition testimony is given, it becomes the anchor for the case. If a later statement directly contradicts it, the court may ignore the new version and rely solely on what was said under oath.
That alone can determine whether a case survives.
Practical Tip: If you believe you made a mistake during your deposition, do not try to correct it on your own. Speak with an employment lawyer immediately to assess whether clarification is possible without creating harmful contradictions.
How Do Courts Decide Whether Testimony Is A “Sham”?
That question was front and center in Rys v. Davis.
Rys brought claims for race and wrongful termination, but the outcome turned on her testimony—not just the underlying facts. After her deposition, she submitted a declaration that altered key details about her workload and alleged incidents.
The Second Circuit Court of Appeals held that courts may disregard later statements that contradict prior testimony, particularly where the inconsistencies are “unequivocal[,] inescapable, [and] unexplained.”
And the court found exactly that.
Rys initially testified that she did not know how her workload compared to other employees. Later, she claimed she had more assignments than her peers. The court rejected that shift. She also described one racially charged incident in her deposition but added another later. Because she had already been asked about such incidents, the court declined to consider the new allegation.
In another instance, her declaration conflicted with earlier testimony about a specific event, and she offered no explanation for the difference. That statement was disregarded as well.
Taken together, the court concluded that her declaration “merely contradict[s] [her] prior testimony” and treated it as a sham affidavit.
Once those contradictions were removed, the remaining evidence could not support her claims. The employer prevailed.
This is the key point: courts do not try to reconcile conflicting stories. When contradictions are clear, they often eliminate the later version entirely.
Practical Tip: If you know something but cannot recall details during a deposition because of nerves, say so. It is better to explain that you cannot recall at the moment or would need to review documents than to give a definitive answer that may later conflict with the record.
Best Employment Law Firm Blogs on Point:
Why Real Litigation Experience Matters In A Race Or Wrongful Termination Case
When dealing with race or wrongful termination, hiring an attorney who “handles employment law” is not enough. That phrase is easy to say and easy to advertise. It does not tell you whether the attorney has real litigation experience.
And that experience matters most during moments like a deposition.
An employee can have legitimate claims and still lose ground if testimony is not handled properly. Preparation is not a formality. It involves reviewing facts, identifying vulnerabilities, and understanding how opposing counsel will frame questions to create inconsistencies.
But preparation alone is not enough.
During the deposition, the attorney must actively protect the record. That includes objecting to misleading questions, preventing confusion from being turned into admissions, and recognizing when the employee needs a break to regain focus.
Nerves are normal. Pressure is expected. But those factors cannot be allowed to produce testimony that undermines the case.
This is where Spitz, The Employee’s Law Firm stands apart.
Spitz focuses on employee rights and brings real litigation experience to race and wrongful termination cases. The firm prepares employees thoroughly, anticipates employer tactics, and protects clients in real time during testimony.
Because once a deposition creates a bad record, there is very little room to correct it.
FAQ: Depositions, Testimony, And Employee Rights
What is a deposition in an employment law case?
A deposition is sworn testimony given under oath during discovery, recorded by a court reporter and used as evidence in the case.
Can an employee change deposition testimony after the fact?
Generally no. Courts do not allow contradictory statements that conflict with prior sworn testimony.
What is a sham affidavit?
A sham affidavit is a later statement that contradicts deposition testimony and may be disregarded entirely by the court.
Can deposition testimony affect a wrongful termination case?
Yes. Deposition testimony is often used to decide summary judgment and can determine whether a case proceeds.
What should an employee do if they are nervous during a deposition?
Be honest about not recalling details rather than guessing or giving inaccurate answers that may later create contradictions.
Employment Lawyer Disclaimer
This employee’s rights and employment law blog provides general information about race, wrongful termination, depositions, and workplace legal issues. It is not legal advice. Every employee’s situation is different, and you should consult with a qualified employment lawyer or attorney for advice specific to your circumstances. No promises are being made. This blog is a legal advertisement. Reading this blog does not create an attorney-client relationship.