Every few years, the Court of Appeals issues a ruling that reaffirms the principle that a plaintiff cannot create an issue of fact for trial if her deposition testimony (or other sworn evidence) seriously contradicts prior submissions in the case. It is not enough to say these contradictions simply create a credibility issue for the jury. In cases like this, the Second Circuit will make that credibility determination on its own. That's what happened in this case.
The case is Bentley v. AutoZoners, LLC, issued on August 19. This is a sexual harassment case. Plaintiff worked for AutoZone, an auto parts outlet. A co-worker, Valentin, repeatedly made sexist comments to plaintiff, such as women are "lazy" and should be home "baking cookies." The Court of Appeals finds that Valentin was not plaintiff's supervisor under Title VII but a mere co-worker, which means the employer is not liable unless it knew or had reason to know of the hostile work environment but negligently remedied it. (If Valentin were plaintiff's supervisor, the employer would be vicariously liable for the harassment but could assert the Faragher/Ellerth affirmative defense that it took reasonable efforts to prevent and remedy the harassment).
Plaintiff testified at her deposition that she repeatedly reported Valentin's sexist remarks to Human Resources from January through March 2014. None of this sworn testimony was corroborated, however. But in May 2014, plaintiff sent a text message to HR about Valentin's obnoxious comments, though that text said nothing about sexual harassment and instead complained about his "ridiculous" and dishonest behavior. Plaintiff gave HR a written statement about the harassment in August 2014; this statement made explicit reference to the hostile work environment. After HR investigated the complaint, Valentin was fired. As a result of this investigation, plaintiff was also fired, for making a crude and vulgar remark to Valentin.
In order for plaintiff to have a case against the employer under Title VII, she had to show that it knew about Valentin's sexist work environment prior to August 2014. Plaintiff did testify that she told management about this prior to August 2014, but that is not enough to survive summary judgment. The Court of Appeals (Raggi, Winter and Cabranes) says that "Bentley's deposition testimony on this point is so compromised and contradicted that it cannot raise a genuine issue of fact as to notice." This is an extraordinary holding, but the problems with plaintiff's sworn "notice" evidence is as follows:
1. While plaintiff originally testified that she routinely sent HR contemporaneous text messages reporting Valentin's sexist statements from January 2014 forward, she recanted this testimony when confronted with the actual text messages which did not complain of sexist comments.
2. When HR met with plaintiff in August 2014 after she submitted a written statement about the work environment, HR asked, "Did you report these comments?" Plaintiff answered, "no." While plaintiff explained that she understood HR's inquiry to be asking whether she had reported the sexist comments to her store manager, the Court of Appeals is not buying it, deeming plaintiff's explanation "hardly plausible." The question from HR was not limited to plaintiff's manager, and the HR representative, Altunes, was the very person to whom plaintiff claimed to be reporting the sexist comments, such that plaintiff should have (but did not) answer that question by reminding Altunes that she had complained directly to Altunes.
3. Plaintiff's complaint as well as her administrative charge of discrimination to the Connecticut Human Rights Commission "makes no mention of reporting these comments to anyone in AutoZone management before August 2014."
The Court of Appeals concludes, "Bentley cannot rely on her deposition testimony to raise a genuine issue of fact about giving AutoZone notice of Valentin's sexist comments before August 2014 because that testimony is inescapably and unequivocally contradicted by her own sworn and written statements, and Bently offers no plausible explanation for the multitude of contradictions."
Years ago, contradictions like this would have been dumped in the jury's lap. The trial judge would have thrown up his hands and decided these conflicting accounts represent the kind of credibility problem that should be resolved at trial. But I have seen the Court of Appeals take that issue away from the jury in extreme cases, when the plaintiff's various accounts are so contradictory that the Court of Appeals deems the testimony implausible. The Second Circuit probably thinks the plaintiff would be destroyed on cross examination and there is no way for her to win the trial. The reasoning in this case will likely prompt defense lawyers to find ways to argue that a plaintiff's deposition testimony is not always enough to avoid summary judgment, which means the plaintiff (and her attorney) must ensure that prior pleadings, including EEOC filings, are consistent and leave no opening for arguments like this.