Court of Appeals reinstates sexual harassment case (with some interesting evidentiary twists)

The Court of Appeals has reversed summary judgment in a sexual harassment case because a male supervisor could not control himself and the female subordinate had the wherewithal to hire a lawyer. In this case, the Second Circuit says that some non-sexual harassment can determine whether the work environment as a whole created a hostile work environment.

The case is Moll v. Telesector Resources Group, decided on July 24. The evidence of harassment is quite brief. The supervisor left plaintiff three inappropriate notes in 1998 and 1999. He also summoned her to his hotel room on a business trip and said he thought of her while he was taking a shower. He also insisted that she see him in person at work and not communicate with him by email or phone. The supervisor then denied her certain promotions and denied her opportunities to work from home and take vacation even though male counterparts were able to do these things.

The district court dismissed the hostile work environment case, saying there was not enough sexual harassment within the statute of limitations. The Court of Appeals (Walker, Cabranes and Parker) reinstates the claim. "Moll’s Complaint includes both sexually overt and facially sex-neutral incidents to allege a sex-based hostile work environment. The district court should have considered all incidents in their totality—including sex-neutral incidents—before it dismissed Moll’s hostile work environment claims for failure to allege an actionable incident within the applicable statute of limitations."

This case also includes some interesting discovery and evidentiary rulings. Plaintiff was denied certain discovery. The Court of Appeals normally does not like to second-guess the district court's discovery rulings, but it does so here.

First, plaintiff challenges the fairness of a reduction-in-force that resulted in her retaliatory termination. That claim was dismissed on summary judgment. She presses these issues on appeal. The district court said plaintiff has no right to review RIF records from the company's four upstate NY offices involving "similar or distinct" RIF's that preceded or followed the RIF that led to her termination. But the Court of Appeals says plaintiff is entitled to evidence of "company-wide practices that may reveal patterns of discrimination against a group of employees, increasing the likelihood that an employer's offered explanation for an employment decision regarding a particular individual masks a discriminatory motive." This evidence might help plaintiff avoid summary judgment, which the district court granted.

Second, the Court takes up an issue that I have not previously seen. Normally, when a plaintiff opposes a summary judgment motion, he cannot submit an affidavit on that motion that contradicts his sworn deposition testimony. The reason for this is clear: faced with possible dismissal of the case, some plaintiffs will say anything, even if it contradicts prior testimony. This is called the "sham issue of fact doctrine." In this case, a non-party witness submitted an affidavit that says plaintiff was fired in retaliation for her protected Title VII activity. This witness said the opposite in deposition, when he still worked for the company as a supervisor. The Circuit reasons:

Here, ... Gaglione was not a party to the action, nor did he have a familial or other close relationship with the plaintiff that suggests Moll could influence Gaglione’s testimony. Moreover, there is nothing in the record to suggest that Gaglione submitted the declaration solely to create a genuine issue of fact. Therefore the district court was not required to disregard Gaglione’s second sworn statement.

 ...

Apart from not being a party to the action, Gaglione was not an expert nor was he retained in any way by the plaintiff. Nor are we convinced that his affidavit 'inescapably and unequivocally' contradicted his earlier testimony without explanation. To the contrary, there is a readily apparent, plausible explanation for any inconsistency in his testimony: At the time of his earlier deposition Gaglione was employed by Verizon; when he provided his subsequent declaration Verizon had terminated him. The fact that the later declaration was more favorable to Moll could be explained in one of two ways: either he felt inhibited at the time of the first  deposition from portraying his employer in a bad light, or when he issued his later declaration he wanted to get even with Verizon for terminating him. Gaglione states in his later declaration that he "regret[s] that [he] failed to do more to complain about the retaliatory nature of the plan" because he "was more concerned about losing [his] job." It seems to us that the veracity of the witness in these circumstances presents a quintessential question of fact for the fact-finder.

I would imagine that Gaglione will be ripped apart on cross examination over this contradiction if the case goes to trial. But this revised affidavit also has potential to blow the case out of the water.