Moll v. Telesector Resources Group, In

Filing

OPINION, the district court s 2005 decision granting Appellee s motion to dismiss Appellant s hostile work environment claims, the district court s 2010 ruling on Appellant s motion to compel Request Nos. 5 and 21, and the district court s 2012 decision granting in part Appellee s motion for summary judgment are VACATED. The matter is remanded, by JMW, JAC, BDP, FILED.[1278156] [12-4688, 13-918]

Case: 12-4688

Document: 124-1

Page: 1

07/24/2014

1278156

12-4688-cv; 13-0918-cv
Moll v. Telesector Resources Group, Inc.
1
2

In the

3

United States Court of Appeals

4

For the Second Circuit

5

________

6
7

AUGUST TERM, 2013

8
9
10

ARGUED: OCTOBER 29, 2013
DECIDED: JULY 24, 2014

11
12

Nos. 12-4688-cv, 13-0918-cv

13
14
15

CINDY MOLL,
Plaintiff-Counter-Defendant-Appellant,

16
17

v.

18
19
20
21
22

TELESECTOR RESOURCES GROUP, INC., DBA VERIZON SERVICES GROUP,
AKA VERIZON NEW YORK INC.,
Defendant-Counter-Claimant-Appellee.
________

23
24
25

Before: WALKER, CABRANES, and PARKER, Circuit Judges.
________

26
27

Cindy Moll (‚Moll‛) appeals from the decisions of the United

28

States District Court for the Western District of New York, William

29

M. Skretny, J., granting in part Verizon’s motion to dismiss and

30

motion for summary judgment, and denying Moll’s motion to

31

compel production of documents.

21

Case: 12-4688

2

Document: 124-1

Page: 2

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

Moll alleges that Verizon discriminated against her, subjected

2

her to a sexually hostile work environment, retaliated against her for

3

complaints of discrimination and harassment and paid her less than

4

her male colleagues for equal work. The district court concluded that

5

Moll premised her hostile work environment claim on only the

6

allegations that were sexually offensive. And because Moll did not

7

allege any ‚sexually offensive acts‛ within the applicable statute of

8

limitations, it dismissed her hostile work environment claims. The

9

district court erred when it refused to consider all allegations in the

10

Complaint in their totality, including those that were not sexually

11

offensive in nature. Sex-based hostile work environment claims may

12

be supported by facially sex-neutral incidents and ‚sexually

13

offensive‛ acts may be facially sex-neutral. See Alfano v. Costello, 294

14

F.3d 365, 375 (2d Cir. 2002). We therefore VACATE the judgment of

15

the district court insofar as it granted in part Verizon’s motion to

16

dismiss.

17

We also find that the district court erred when it denied Moll’s

18

motion to compel documents related to Verizon’s Reduction in Force

19

events and, therefore, order the district court to compel production

20

of such documents. Accordingly, we VACATE the judgment of the

21

Case: 12-4688

Document: 124-1

Page: 3

3

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

district court insofar as it granted in part Verizon’s motion for

2

summary judgment.

3

In addition, we conclude that the district court erred when it

4

disregarded a witness’s affidavit because it contradicted the

5

witness’s prior deposition testimony. Although a party cannot create

6

a material issue of fact to defeat a motion for summary judgment

7

simply contradicting his earlier testimony, the ‚sham issue of fact‛

8

doctrine does not mandate that the court disregard a non-party

9

witness’s subsequent testimony when it conflicts with the non-party

10

witness’s prior statement. We thus VACATE the judgment of the

11

district court insofar as it granted in part Verizon’s motion for

12

summary judgment.

13
14
15

We remand for further proceedings consistent with this
opinion.
________

16
17
18
19
20
21
22
23

JOSEPHINE A. GRECO (Duane D. Schoonmaker, on
the brief), Greco Trapp, PLLC, Buffalo, NY, for
Plaintiff-Appellant.
JAMES S. URBAN, Jones Day, Pittsburgh, PA, for
Defendant-Appellee.
________

21

Case: 12-4688

Document: 124-1

Page: 4

4
1

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

JOHN M. WALKER, JR., Circuit Judge:

2

Cindy Moll (‚Moll‛) appeals from the decisions of the United

3

States District Court for the Western District of New York, William

4

M. Skretny, J., granting in part Verizon’s motion to dismiss and

5

motion for summary judgment, and denying Moll’s motion to

6

compel production of documents.

7

Moll alleges that Verizon discriminated against her, subjected

8

her to a sexually hostile work environment, retaliated against her for

9

complaints of discrimination and harassment, and paid her less than

10

her male colleagues for equal work. The district court concluded that

11

Moll premised her hostile work environment claim on only the

12

allegations that were sexually offensive. And because Moll did not

13

allege any ‚sexually offensive acts‛ within the applicable statute of

14

limitations, it dismissed her hostile work environment claims. The

15

district court erred when it refused to consider all allegations in the

16

Complaint in their totality, including those that were not sexually

17

offensive in nature. Sex-based hostile work environment claims may

18

be supported by facially sex-neutral incidents and ‚sexually

19

offensive‛ acts may be facially sex-neutral. See Alfano v. Costello, 294

20

F.3d 365, 375 (2d Cir. 2002). We therefore VACATE the judgment of

21

Case: 12-4688

Document: 124-1

5

Page: 5

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

the district court insofar as it granted in part Verizon’s motion to

2

dismiss.

3

We also find that the district court abused its discretion when

4

it denied Moll’s motion to compel documents related to Verizon’s

5

Reduction in Force events and, therefore, order the district court to

6

compel production of such documents. Accordingly, we VACATE

7

the judgment of the district court insofar as it granted in part

8

Verizon’s motion for summary judgment.

9

In addition, we conclude that the district court erred when it

10

refused to consider a witness’s statements in an affidavit that

11

contradicted prior deposition testimony. Although a party cannot

12

create a material issue of fact to defeat a motion for summary

13

judgment by simply contradicting his earlier testimony, the ‚sham

14

issue of fact‛ doctrine does not mandate that the court disregard a

15

non-party witness’s subsequent testimony when it conflicts with the

16

non-party witness’s prior statement. We thus VACATE the

17

judgment of the district court insofar as it granted in part Verizon’s

18

motion for summary judgment.

19
20

We remand for further proceedings consistent with this
opinion.

21

Case: 12-4688

6

Document: 124-1

Page: 6

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv
BACKGROUND

1
2

Moll’s story begins in 1997 when Telesector Resources Group,

3

Inc.1 (‚Verizon‛) promoted her from clerical employee to System

4

Analyst/Sales Engineer in its Buffalo, New York office. Moll alleges

5

that beginning in 1998 she was subjected to sex-based disparate

6

treatment, a hostile work environment, and retaliation.

7

Moll alleges that in 1998 and 1999, Daniel Irving, a Senior

8

Systems Analyst, left Moll three inappropriate notes. And in 1999,

9

while they were on a business trip, Irving called her hotel room

10

repeatedly and asked her to come to his hotel room. After Irving

11

became her direct supervisor in March 2001, Moll alleges that he left

12

her a note that said he thought about her when he was taking a

13

shower. Moll also claims that Irving would not permit her to

14

communicate with him by email or telephone; she had to see him in

15

person. And Moll claims that throughout his tenure as her

16

supervisor, Irving refused to have her assessed for a promotion

17

claiming that there was a promotion freeze. However, two male

18

colleagues were promoted during this time period.
Telesector Resources Group, Inc. is owned 50/50 by Verizon New
York Inc. and Verizon New England Inc., each of which is a wholly owned
subsidiary of NYNEX Corporation. NYNEX Corporation is a wholly
owned subsidiary of Verizon Communications Inc.
1

21

Case: 12-4688

Document: 124-1

Page: 7

7

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

In March 2002, Irving placed Moll on a counseling plan based

2

on her job performance. That year Moll was the lowest paid Sales

3

Engineer in the Buffalo office. Moll occasionally worked at home,

4

usually when one of her children was sick. In May 2002, however,

5

Irving informed Moll that she could no longer work at home even

6

though, according to Moll, her male counterparts continued to do so.

7

Moll was denied a request to take vacation on July 5, 2002. Yet, Moll

8

alleges, male colleagues with less tenure were granted the same

9

vacation request. Moll also claims that she and other women in the

10

office were excluded from work-related social events, including

11

attending professional hockey games.

12
13

In January 2003, Christopher Gaglione became her supervisor.
In July 2003, Gaglione promoted Moll to Sales Engineer II.

14

On September 19, 2003, Moll filed a Charge of Discrimination

15

with the Equal Employment Opportunity Commission (‚EEOC‛)

16

alleging that she had been ‚subjected to different terms and

17

conditions of employment than similarly situated male employees‛

18

and a ‚hostile work environment.‛ J.A. 67. Moll also complained

19

that she had been promoted ‚to a lower level position than similarly

20

situated males‛ and generally alleged retaliation after complaining

21

Case: 12-4688

Document: 124-1

8

Page: 8

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

to Verizon management of sexual discrimination and harassment. Id.

2

The EEOC issued a Notice of Right to Sue dated August 9, 2004.

3

On October 5, 2004, Moll filed a complaint with the district

4

court, alleging that she had been (i) subjected to gender-disparate

5

treatment; (ii) subjected to a sexually hostile work environment;

6

(iii) retaliated against; and (iv) paid less than male employees, in

7

violation of Title VII of the Civil Rights Act of 1964, § 102(a) of the

8

Civil Rights Act of 1991, the New York State Human Rights Law

9

(‚NYSHRL‛), and the Equal Pay Act (‚EPA‛).

10

In December 2004, Verizon transferred the Sales Engineers in

11

the Buffalo office to the Syracuse office, purportedly because the

12

company wanted all of the Sales Engineers to work out of the same

13

office as their supervisors.

Moll alleged that this transfer was

14

retaliation for her lawsuit.

Verizon offered Moll three options:

15

(1) transfer to Syracuse; (2) find a new job at Verizon; or (3) take a

16

severance package. Moll claims she had no choice but to transfer to

17

Syracuse because she could not find another job at Verizon and

18

Verizon refused to give her details regarding her severance package.

19

Moll was told that she must report to the Syracuse office when she

20

was not in customer meetings and that she could not work from

21

Case: 12-4688

9

Document: 124-1

Page: 9

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

home. Moll eventually took disability leave because of the

2

‚overwhelming stress and anxiety‛ she experienced.

3

On December 20, 2004, Verizon filed a motion to dismiss the

4

complaint under Federal Rule of Civil Procedure 12(b)(6), except for

5

a single purported incident of disparate treatment. In September

6

2005, the district court issued an order granting, in part, and

7

denying, in part, the motion. The district court, inter alia, dismissed

8

Moll’s claims of hostile work environment in violation of Title VII

9

and the NYSHRL on the basis that Moll failed to allege that any

10

sexually offensive conduct occurred within the applicable statute of

11

limitations and that therefore her hostile work environment claims

12

were time-barred. Moll v. Telesector Res. Grp., Inc., No. 04-cv-805S,

13

2005 WL 2405999, at *7, 12 (W.D.N.Y. Sept. 29, 2005).

14

In February 2006, Moll’s job was transferred to Buffalo and

15

Moll returned to work from disability leave. In February 2007,

16

Moll’s supervisor told her that there would be a Reduction in Force

17

(‚RIF‛) and that she would be terminated because her performance

18

was below the performance of her peers. Moll claims that no

19

documents or other evidence was offered to support her

20

supervisor’s conclusion that her performance was below par. On

21

Case: 12-4688

10

Document: 124-1

Page: 10

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

February 7, 2007, Moll was officially terminated. On April 17, 2008,

2

Moll filed an Amended Complaint in the district court adding the

3

allegations that her termination and her transfer to Syracuse were

4

retaliatory.

5

On August 13, 2010, Moll filed a motion to compel the

6

production of documents relating to her retaliation claim. One

7

request (No. 20) sought, among other things, ‚all documents of or

8

concerning a reduction in force on or about February of 2007.‛

9

Verizon represented that it ‚performed a reasonable search and has

10

already produced all responsive documents, or has in its possession

11

no responsive documents.‛ The magistrate judge relied on this

12

representation and denied Moll’s request. Moll v. Telesector Res. Grp.,

13

Inc., No. 04-cv-805S, 2010 WL 4642931, at *7 (W.D.N.Y. 2010).

14

A second request (No. 21), sought ‚all documents of or

15

concerning any position, including but not limited to sales engineer

16

a/k/a solutions engineer eliminated as a result of a reduction in force

17

in the Buffalo, Rochester, Syracuse, or Albany offices during the

18

period of January 2004 through the present.‛ The magistrate judge

19

denied this request on the basis that it was ‚irrelevant whether the

20

criteria utilized for a reduction in force preceding or following the

21

Case: 12-4688

Document: 124-1

11

Page: 11

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

reduction in force which terminated plaintiff was similar or distinct‛

2

and denied the motion. Id.

3

A third request (No. 5), sought all personnel files of

4

employees who held the position of Sales Engineer in Buffalo,

5

Rochester, or Syracuse, which she argued may be used to support

6

her claim of sex discrimination as possible comparators. The

7

magistrate judge denied Moll’s request, finding ‚no basis for the

8

disclosure of confidential personnel records of employees in other

9

offices. Id. at *4. Following Moll’s objections, the district court

10

upheld this determination.

11

In September 2011, Verizon moved for summary judgment.

12

On May 30, 2012, the district court granted, in part, Verizon’s

13

motion for summary judgment and dismissed all claims except that

14

her promotion

15

discriminatorily delayed. Moll v. Telesector Res. Grp., Inc., No. 04-cv-

16

805S, 2012 WL 1935087 (W.D.N.Y. May 30, 2012). Moll and Verizon

17

settled the discrete promotion-delay claim and entered into a

18

Stipulation of Dismissal. Moll appealed the district court’s 2005

19

ruling on Verizon’s motion to dismiss, its 2010 ruling on her motion

to the position of Sales Engineer

II was

21

Case: 12-4688

Document: 124-1

12

Page: 12

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

to compel, and its 2012 ruling on Verizon’s motion for summary

2

judgment.
DISCUSSION

3
4

I.

Motion to Dismiss: Hostile Work Environment Claims

5

We review a district court’s grant of a motion to dismiss de

6

novo. Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009). The

7

district court dismissed Moll’s hostile work environment claims

8

under Title VII and the NYSHRL, finding that Moll failed to allege

9

facts to support a claim within the applicable statute of limitations.

10

Moll argues that the district court improperly calculated the

11

NYSHRL statute of limitations. Moll also argues that events which

12

occurred prior to the statute of limitations are actionable under the

13

continuing violation exception. Finally, Moll argues that the district

14

court erred when it failed to consider acts that were not sexually

15

offensive in nature.

16

We conclude that the district court erred when it failed to

17

consider all allegations in the Complaint in their totality, including

18

those that were not sexually offensive in nature.

19

‚A hostile work environment exists under Title VII where ‚the

20

workplace is permeated with discriminatory intimidation, ridicule,

21

Case: 12-4688

Document: 124-1

Page: 13

13

07/24/2014

1278156

21

Nos. 12-4688-cv, 13-0918-cv

1

and insult, that is sufficiently severe or pervasive to alter the

2

conditions of the victim’s employment and create an abusive

3

working environment.‛ Mack v. Otis Elevator Co., 326 F.3d 116, 122

4

(2d Cir. 2003) (internal quotation marks and alteration omitted),

5

abrogated on other grounds by Vance v. Ball State Univ., 133 S. Ct. 2434

6

(2013). ‚To decide whether the threshold has been reached, courts

7

examine the case-specific circumstances in their totality and evaluate

8

the severity, frequency, and degree of the abuse.‛ Alfano, 294 F.3d at

9

374 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). ‚Facially

10

[sex-]neutral incidents may be included . . . among the ‘totality of the

11

circumstances’ that courts consider in any hostile work environment

12

claim, so long as a reasonable fact-finder could conclude that they

13

were, in fact, based on sex.‛ Id. at 378; see also Raniola v. Bratton 243

14

F.3d 610, 622-23 (2d Cir. 2001); Howley v. Town of Stratford, 217 F.3d

15

141, 155-56 (2d Cir. 2000).
Moll’s Complaint includes both sexually overt and facially

16
17

sex-neutral

18

environment. The district court should have considered all incidents

19

in

20

dismissed Moll’s hostile work environment claims for failure to

their

incidents

to

allege

totality—including

a

sex-based

sex-neutral

hostile

work

incidents—before

it

Case: 12-4688

Document: 124-1

14

Page: 14

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

allege an actionable incident within the applicable statute of

2

limitations.

3

On appeal, Verizon argues for the first time that Moll’s hostile

4

work environment claims also fail because her allegations are not

5

sufficiently pervasive or severe to support an actionable claim. ‚*I+t

6

is a well-established general rule that an appellate court will not

7

consider an issue raised for the first time on appeal.‛ Greene v. United

8

States, 13 F.3d 577, 586 (2d Cir. 1994). While the rule is not an

9

absolute bar, id., we choose not to address the merits of Verizon’s

10

argument.

11

Accordingly, we vacate the district court’s decision to dismiss

12

Moll’s Title VII and NYSHRL hostile work environment claims and

13

remand for further proceedings. We leave consideration of Moll’s

14

other arguments to the district court in the first instance and we

15

express no views on the merits of Moll’s hostile work environment

16

claims.

17

II.

Motion to Compel

18

We review a district court’s discovery rulings for abuse of

19

discretion. Wood v. FBI, 432 F.3d 78, 82 (2d Cir. 2005); see also In re

20

Sims, 534 F.3d 117, 132 (2d Cir. 2008) (explaining that the term of art

21

Case: 12-4688

Document: 124-1

15

Page: 15

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

‚abuse of discretion‛ includes errors of law, clearly erroneous

2

assessments of the evidence, or decisions ‚that cannot be located

3

within the range of permissible decisions‛ (internal quotation marks

4

omitted)). Moll argues that the relevance and materiality of her

5

request for documents relating to the February 2007 reduction in

6

force, previous and following reductions in force, and similarly-

7

situated Verizon employees is plain. We agree. The district court

8

erred by refusing to compel Verizon to provide the records Moll

9

requested in Request Nos. 5 and 21. While we are in no position to

10

second-guess Verizon’s representation that the documents Moll

11

sought in Request No. 20 do not exist, we note that the failure to

12

keep records of the reduction in force that resulted in Moll’s

13

termination may itself constitute evidence that the reduction in force

14

was pretextual.

15

‚Evidence relating to company-wide practices may reveal

16

patterns of discrimination against a group of employees, increasing

17

the likelihood that an employer’s offered explanation for an

18

employment decision regarding a particular individual masks a

19

discriminatory motive.‛ Hollander v. Am. Cyanamid Co. 895 F.2d 80,

20

84 (2d Cir. 1990). See also id. (concluding that discovery request that

21

Case: 12-4688

Document: 124-1

Page: 16

16

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

‚goes beyond the narrow confines of the [ ] facility in which

2

[plaintiff] worked . . . is relevant‛ to discrimination claim).

3

same evidence may be used to detect retaliatory motives and

4

unequal pay. The district court’s refusal to compel Verizon to

5

produce the requested documents deprived Moll of the opportunity

6

to find evidence that might support her argument that Verizon’s

7

reasons for firing her were pretextual, that she was discriminated

8

based on her sex, or that she was paid unequally.

This

9

Accordingly, we vacate the order insofar as it denied Moll’s

10

motion to compel Request Nos. 5 and 21. We remand the case to the

11

district court with directions to compel Verizon to produce such

12

documents.

13

III.

Motion for Summary Judgment

14

Because we reverse the district court’s order denying Moll’s

15

motion to compel, we vacate the summary judgment. If, following

16

discovery, Moll is unable to establish a genuine issue of material fact

17

suggesting Verizon discriminated or retaliated against her, the

18

district court is free to re-consider summary judgment for Verizon.

19

We note, however, that the district court erred when it

20

concluded that it ‚must disregard‛ Christopher Gaglione’s sworn

21

Case: 12-4688

Document: 124-1

17

Page: 17

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

statement that Moll’s transfer was motivated by retaliatory intent

2

because it contradicted his prior deposition testimony. Moll, 2012

3

WL 1935087, at *22. The district court was not required to disregard

4

Gaglione’s testimony.

5

In November 2005, when Gaglione was employed by Verizon,

6

he testified at his deposition that there was a valid reason for Moll’s

7

transfer to the Syracuse office—specifically, to centralize resources in

8

the office where Gaglione, their manager, was located. In November

9

2011, however, after Gaglione was fired from Verizon, he stated in a

10

declaration that ‚*t]he primary factor for [the] decision [to transfer

11

Moll] was an effort to retaliate against . . . [her] for [her] continuing

12

complaints of discrimination and retaliation.‛ He went on to say that

13

Verizon ‚justified this transfer with the pretext that all *System

14

Engineers+ . . . should work together.‛ The district court determined

15

that it ‚must disregard‛ Gaglione’s second statement ‚because it

16

contradicts his prior deposition testimony.‛ Id. We conclude that this

17

was error.

18

The ‚sham issue of fact‛ doctrine ‚prohibits a party from

19

defeating summary judgment simply by submitting an affidavit that

20

contradicts the party’s previous sworn testimony.‛ In re Fosamax

21

Case: 12-4688

18

Document: 124-1

Page: 18

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013) (per curiam)

2

(emphasis supplied). See also Brown v. Henderson, 257 F.3d 246, 252

3

(2d Cir. 2001) (‚[F]actual allegations that might otherwise defeat a

4

motion for summary judgment will not be permitted to do so when

5

they are made for the first time in the plaintiff’s affidavit opposing

6

summary judgment and that affidavit contradicts her own prior

7

deposition testimony.‛); Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614,

8

619 (2d Cir. 1996) (‚*A+ party may not create an issue of fact by

9

submitting an affidavit in opposition to a summary judgment

10

motion that, by omission or addition, contradicts the affiant’s

11

previous deposition testimony.‛). The purpose of the doctrine is

12

clear: ‚[i]f a party who has been examined at length on deposition

13

could raise an issue of fact simply by submitting an affidavit

14

contradicting his own prior testimony, this would greatly diminish

15

the utility of summary judgment as a procedure for screening out

16

sham issues of fact.‛ Perma Research & Dev. Co. v. Singer Co., 410 F.2d

17

572, 578 (2d Cir. 1969). Thus, factual issues that a party creates by

18

filing an affidavit crafted to oppose a summary judgment motion

19

that contradicts that party’s prior testimony are not ‚genuine‛ issues

20

for trial. Id.

21

Case: 12-4688

Document: 124-1

Page: 19

19

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

Here, however, Gaglione was not a party to the action, nor did

2

he have a familial or other close relationship with the plaintiff that

3

suggests Moll could influence Gaglione’s testimony. Moreover, there

4

is nothing in the record to suggest that Gaglione submitted the

5

declaration solely to create a genuine issue of fact. Therefore the

6

district court was not required to disregard Gaglione’s second sworn

7

statement.

8

In certain circumstance we have held that sham issue of fact

9

doctrine applies to third-party witnesses, particularly expert

10

witnesses. See Fosamax, 707 F.3d at 193 (holding that the sham

11

affidavit doctrine applies to stop a party from manufacturing a

12

factual dispute by submitting testimony from an expert whom she

13

tendered); AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626

14

F.3d 699, 736 (2d Cir. 2010) (holding that plaintiffs’ expert report that

15

contradicted plaintiff’s prior representations was insufficient to

16

defeat motion for summary judgment). But in doing so we explained

17

that a party cannot ‚manufactur*e+ a factual dispute by submitting

18

testimony from an expert whom she tendered‛ with contradictions

19

that

20

‚unexplained.‛ Fosamax, 707 F.3d at 194.

are,

inter

alia,

‚unequivocal

and

inescapable,‛

and

21

Case: 12-4688

Document: 124-1

20

Page: 20

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

Apart from not being a party to the action, Gaglione was not

2

an expert nor was he retained in any way by the plaintiff.2 Nor are

3

we convinced that his affidavit ‚inescapably and unequivocally‛

4

contradicted his earlier testimony without explanation. To the

5

contrary, there is a readily apparent, plausible explanation for any

6

inconsistency in his testimony: At the time of his earlier deposition

7

Gaglione was employed by Verizon; when he provided his

8

subsequent declaration Verizon had terminated him. The fact that

9

the later declaration was more favorable to Moll could be explained

10

in one of two ways: either he felt inhibited at the time of the first

11

deposition from portraying his employer in a bad light, or when he

12

issued his later declaration he wanted to get even with Verizon for

13

terminating him. Gaglione states in his later declaration that he

14

‚regret[s] that [he] failed to do more to complain about the

15

retaliatory nature of the plan‛ because he ‚was more concerned

16

about losing *his+ job.‛ It seems to us that the veracity of the witness

17

in these circumstances presents a quintessential question of fact for

18

the fact-finder.

Although the fact that Gaglione was a non-expert witness bears on
our decision here, we do not hold that non-expert third-party witnesses
can never be subject to the sham affidavit rule.
2

21

Case: 12-4688

Document: 124-1

21

Page: 21

07/24/2014

1278156

Nos. 12-4688-cv, 13-0918-cv

1

Ordinarily, when a district court is asked to consider

2

contradictory deposition testimony of a fact witness at summary

3

judgment, ‚a district court may not discredit a witness’s deposition

4

testimony . . . because the assessment of a witness’s credibility is a

5

function reserved for the jury.‛ Fincher v. Depository Trust & Clearing

6

Corp., 604 F.3d 712, 725 (2d Cir. 2010). It was error for the district

7

court to categorically refuse to consider Gaglione’s subsequent

8

declaration; the sham issue doctrine does not go so far. If defendant

9

files a second motion for summary judgment, we direct the district

10

court to consider Gaglione’s second sworn statement in his

11

declaration.

12

CONCLUSION

13

For the reasons set forth above, we (1) vacate the district

14

court’s 2005 decision granting Verizon’s motion to dismiss Moll’s

15

hostile work environment claims; (2) vacate the district court’s 2010

16

ruling on Moll’s motion to compel Request Nos. 5 and 21; and (3)

17

vacate the district court’s 2012 decision granting in part Verizon’s

18

motion for summary judgment. We remand for further proceedings

19

consistent with this opinion.

21