760 F.3d 198
2d Cir.2014Background
- Moll, a female Sales Engineer, alleged sex discrimination, a sexually hostile work environment, retaliation, and pay disparity by Verizon based on incidents from 1998–2007 including notes and calls from a supervisor, differential treatment on promotions, work-from-home and vacation denials, exclusion from events, a transfer to Syracuse, and termination in a 2007 RIF.
- Moll filed an EEOC charge in 2003 and sued in federal court in 2004; the EEOC issued a right-to-sue in 2004.
- The district court (1) dismissed Moll’s hostile work environment claims as time-barred for lacking sexually offensive acts within the limitations period; (2) denied certain discovery requests for RIF- and comparator-related documents; and (3) granted summary judgment in part for Verizon, leaving only a promotion-delay claim (later settled).
- On appeal, the Second Circuit vacated: the dismissal of hostile work environment claims (for failing to consider sex-neutral acts in the totality of the circumstances); the denial of discovery for RIF/comparator documents (Requests Nos. 5 and 21); and parts of the summary judgment ruling (including the district court’s categorical exclusion of a non-party witness’s later affidavit).
- The court remanded for further proceedings, holding that: sex-neutral incidents may support hostile work environment claims; discovery into company-wide RIF/comparator materials is relevant; and the "sham affidavit" rule does not automatically bar a non-party witness’s contradictory later testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the hostile work environment claims were time-barred / properly assessed | Moll argued the court must evaluate all acts in totality (including facially sex-neutral acts) and allow continuing-violation analysis | Verizon argued the dispositive sexually offensive acts fell outside the limitations period (and on appeal contended acts were not severe/pervasive) | Vacated dismissal; court held district court erred by ignoring sex-neutral incidents and remanded for full totality-of-circumstances analysis |
| Whether discovery into RIF and comparator personnel records was properly denied | Moll argued RIF and comparator documents are relevant to show pretext, pattern, and retaliation/pay discrimination | Verizon represented it had produced responsive documents or had none and argued some requests were irrelevant/confidential | Vacated denial as to Requests Nos. 5 and 21; ordered district court to compel production; noted absence of RIF records could itself be evidence of pretext |
| Whether a non-party witness’s later affidavit that contradicts earlier deposition must be disregarded under the sham-affidavit doctrine | Moll argued the court should consider Gaglione’s later declaration explaining earlier testimony due to employer pressure | Verizon argued the later declaration was a sham that contradicted deposition and should be disregarded | Vacated summary-judgment ruling that excluded the affidavit; held sham-affidavit rule does not automatically apply to non-party witnesses and credibility is for the factfinder |
| Whether summary judgment should remain after vacating discovery ruling | Moll argued discovery could yield evidence creating genuine issues of fact | Verizon (implicitly) contended summary judgment was proper on the existing record | Vacated summary judgment in part and remanded; the district court may reassess after production and further proceedings |
Key Cases Cited
- Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002) (facially sex-neutral incidents may be considered in hostile work environment totality analysis)
- Mack v. Otis Elevator Co., 326 F.3d 116 (2d Cir. 2003) (standard for hostile work environment—severe or pervasive conduct alters employment conditions)
- Hollander v. American Cyanamid Co., 895 F.2d 80 (2d Cir. 1990) (company-wide practices and discovery beyond a single facility can be relevant to discrimination claims)
- Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969) (sham affidavit doctrine explained; prevents defeating summary judgment by contradicting prior sworn testimony)
- In re Fosamax Prods. Liab. Litig., 707 F.3d 189 (2d Cir. 2013) (sham-affidavit doctrine applied to prevent manufacturing disputes via expert declarations)