Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

One of the most common things I hear during consultations is a worker telling me that they “do not have any evidence” of to support their story. They go on to elaborate that they have no documents, emails, or anything tangible to further their claim. While having documentation to support a claim is helpful, it is not the end all be all in a lawsuit. Indeed, a recent Fifth Circuit opinion outlines how a plaintiff’s own affidavit may be sufficient to get a case in front of a jury.

A week does not go by in which I am in a consultation and the potential client goes through all the facts of their case. They hit every possible element in a claim and then some. They bare their story, often with great emotion, only to end it all with a statement that goes along the lines of, “but I do not have any evidence to support any of this.” This is due to the common and nefarious misconception that only hard, tangible, documented evidence can be presented. Sometimes they even make the more distressing statement that makes it seem that they are under the impression that if their employer admitted to breaking the law they cannot win. These statements are incorrect.

On November 10, 2021, Fifth Circuit penned an opinion that goes a long way to establish that a plaintiff’s own words in the form of an affidavit may be sufficient to allow a plaintiff to get their case in front of a jury. In Guzman v. Allstate Assurance Co., the trial court dismissed a plaintiff’s case because in large part the plaintiff’s case relied on self-serving affidavits that were not supported by the record. In overturning this decision, the Fifth Circuit held that an affidavit written by the plaintiff, regardless of if it was self-serving, should not be discounted outright. Specifically, the court held that “affidavits and depositions may create fact issues even if not supported by the rest of the record.” While Guzman was not an employment case, the proposition of law for which it stands can easily be applied in the employment law context.

In fact, in Fracalossi v. Moneygram Pension Plan; Viad Corp.; & Moneygram International, Inc., the Northern District of Texas recently applied Guzman in the employment law context. Fracalossi, is a case that involved an employee’s cause of action against his employer under the Employee Retirement Income Security Act of 1974 (ERISA). In that case, the defendant argued that the court should grant summary judgment in its favor because the employee had failed to create a fact issue as it relates to actual harm. The court refuse to grant summary judgment because part of the calculation came in the form of that employee’s affidavit. Relying on the precedent set forth in Guzman, the court stated that “[t]he Court finds that the part of Fracalossi’s declaration addressing damages meets [the requirements set forth in Guzman] and is sufficiently non-conclusory to create a genuine dispute of material fact on the issue of actual harm.” As stated above, this shows courts’ willingness to expand upon the context in which Guzman found itself.

While it would be a bit premature to argue that Guzman is ushering a new era of how worker’s affidavits will be examined. Yet, it undeniably does provide a powerful tool for workers to bring forth their claims against employers. This is important because many times employees are at an informational disadvantage when compared to their employers. Often, they are shut out of their emails as soon as they are terminated. Many employers go through great lengths to paper that employees’ files with dubious claims and reports.

At the end of the day know that what you experienced at the workplace matters. What you saw and what you felt matters. For far too long have employers instilled this idea that unless there is a piece of paper that outlines exactly what you need you do not have claim. Yet, despite this new trend, much work still needs to be done to overturn this age-old misconception.

At the end of the day, to prevail there will need to be workers who are willing to speak up. Moreover, it will require attorneys that understand the law and are willing to fight for your rights. That is why it is it is imperative to seek out an attorney that specializes in employment law to assist you if you feel you have been wronged at the workplace. At Wiley Walsh, P.C. we specialize in employment, and we are more than happy to go over your situation so that we can assess what we are able to do for you. Feel free to contact us to schedule an appointment with one of our attorneys.


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Photo of Jairo N. Castellanos Jairo N. Castellanos

We asked Jairo N. Castellanos, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Mr. Castellanos

We asked Jairo N. Castellanos, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Mr. Castellanos carries.

1. Why did you start practicing labor and employment law?

I think labor and employment law is a fascinating part of the law that impacts everyone. Most people spend nearly as much time at work as they do with their family.

2. Who is your favorite Supreme Court Justice?

My favorite sitting justice is Justice Sonia Sotomayor.

3. What skills do you value as an employment attorney?

I think an important skill to have as an employment attorney is the ability to tell people’s stories. It is important to be able to effectively convey entirety of the case beyond the legal aspects of it.

4. What do you do when you’re not practicing law?

I like to read fiction and spend time with my daughter.

5. What’s your favorite legal movie

That is a toss-up between A Civil Action and My Cousin Vinny.

6. What’s your favorite legal TV show

Always Sunny in Philadelphia when they are discussing bird law.

7. Have you ever learned something from one of your clients?

I’ve learned that there is no one size fits all solution to dealing with issues. Much like there is no one size fits all way of approaching a problem.

8. If you could argue any case in history, what would it be?

Brown v. Board of Education of Topeka.

9. What do you most want your clients to know about you?

That in me they can find someone that will fight his hardest for them regardless of the outcome.

10. Who’s your favorite judge?

Former Chief Justice John Marshall

Jairo N. Castellanos is a Trial Attorney in the Austin office of Wiley Walsh, P.C.  He graduated from The University of Nevada in Las Vegas with a bachelor’s degree in 2009.  Mr. Castellanos then graduated from The University of Texas School of Law in 2015. Mr. Castellanos is fluent in English and Spanish.