The Second Circuit Court of Appeals recently reinstated a lawsuit alleging a hostile work environment based on race, religion, and national origin under Title VII of the Civil Rights Act of 1964. A federal district judge had granted the defendants’ motion for summary judgment last year, finding that the plaintiff had shown “no reasonable basis” for her claims. Ahmed v. Astoria Bank, et al. (“Ahmed I”), No. 1:14-cv-04595, mem. order at 1 (E.D.N.Y., Mar. 31, 2016). On appeal, the defendants cited the “sham issue of fact” doctrine, which prohibits a party from using contradictory evidence to defeat a summary judgment motion. The Second Circuit vacated the district court’s decision and remanded the case, finding that the evidence was not actually contradictory. Ahmed v. Astoria Bank, et al. (“Ahmed II”), No. 16-1389-cv, slip op. (2d Cir., May 9, 2017).
Title VII prohibits discrimination on the basis of multiple factors, including race, national origin, and religion. 42 U.S.C. § 2000e-2(a). The plaintiff in an employment discrimination lawsuit has the burden of proving the allegedly unlawful conduct. A defendant can challenge the plaintiff’s claims before trial and even get some or all of them dismissed with a motion for summary judgment. The defendant must show that “no genuine dispute as to any material fact” exists and that it “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A plaintiff can defeat summary judgment by showing that a “genuine dispute” does exist.
The plaintiff filed suit against her former employer in 2014, alleging that she had been “subjected to discrimination and unlawful termination” in violation of Title VII and other federal and state laws “because she was a Muslim of Egyptian and Arabic heritage.” Ahmed I at 2. The district court granted the defendants’ motion for summary judgment. On the hostile work environment claim, the court held that she had “identified only a few incidents, primarily stray comments from two specific individuals,” in support of her claims. Id. at 23.
The plaintiff appealed the dismissal of the hostile work environment claim. The defendants alleged that the plaintiff had offered contradictory evidence in order to establish a dispute of material fact. The “sham issue of fact” doctrine states that a party cannot overcome summary judgment “simply by submitting an affirmation that contradicts the party’s previous sworn testimony.” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 205 (2d Cir. 2014). The defendants claimed, for example, that the plaintiff’s testimony only identified “two instances in which a senior supervisor…made comments about [her] hijab,” while her affirmation in response to the summary judgment motion stated that the supervisor “constantly told [her] to remove [her] hijab.” Ahmed II at 3.
The Second Circuit noted that the “sham issue of fact” doctrine “does not apply where, as here, the statements in the deposition do not contradict the affirmation.” Id. at 3-4, citing In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 758 F.3d 202, 213 (2d Cir. 2014). The plaintiff’s testimony about the supervisor “concerned [his] conduct at another bank prior to [the plaintiff’s] tenure at [the defendant].” Id. at 4. The court held “that a reasonable jury could find that [the plaintiff] was subjected to discriminatory harassment.” Id.
The national origin discrimination attorneys at Phillips & Associates advocate for New York City job applicants, employees, and former employees in claims for unlawful employment practices under local, state, and federal laws. Contact us today online or at (212) 248-7431 to schedule a free and confidential consultation with a member of our knowledgeable and experienced team.
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