Plaintiff's new testimony about discriminatory motive cannot prevent summary judgment for the employer

The plaintiff says she was denied a promotion to Executive Director of the Nassau County Human Rights Commission because of her gender. Her evidence in support of this claim is two-fold: first, she testified in deposition that the Commission Chair, Syed, told her, "I want a man for the position." Plaintiff also says she was better qualified than the selectee. Despite this evidence, she lost the case on summary judgment, and she loses the appeal.

The case is Rodriguez v. County of Nassau, a summary order issued on October 8. How can plaintiff lose the case on summary judgment with Syed's admission that he wanted a man for the job? Here is what happened. In her first deposition in June 2017, plaintiff was asked if Syed said "anything about your gender?" Plaintiff did not testify that he said he wanted a man for the job. Instead, she testified, Syed did not acknowledge her in the past, implying that he was disrespectful to plaintiff because she is a woman. At her second deposition in January 2018, plaintiff testified that Syed told her he want a man for the position. Her affidavit for the summary judgment motion contains the same admission.

A line of cases in the Second Circuit over last last few years says that plaintiffs cannot avoid summary judgment with testimony that contradicts prior accounts during the case, such as during EEOC charges. The most recent published case on this issue is Bentley v. AutoZoners, LLC, 935 F.3d 76 (2d Cir. 2019). I have not seen yet seen a case where the plaintiff's testimony had this kind of discrepancy in the course of two separate depositions, but the Court of Appeals says that plaintiff had the chance to testify about Syed's admission during the first deposition but failed to do so, and that she offers no plausible reason why the second deposition produced this testimony, which under normal circumstances would send this case to a jury and deny the employer's motion for summary judgment motion.

The Court of Appeals (Walker, Leval and Bianco) notes that "we have repeatedly ruled that . . .  a plaintiff who, previously in the litigation, has denied an essential fact cannot resuscitate that fact in defending against summary judgment by giving new testimony that asserts the previously denied fact." The Court of Appeals applies that rule in this case. Since plaintiff has not offered any other testimony to support her claim that she was denied the promotion because of her gender, summary judgment is affirmed and the case is over. While plaintiff testified that she was better qualified than the man who was hired for the position, the Court says that testimony was speculative and not enough to show that plaintiff was denied the job because of her gender.