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Moll v. Telesector Res. Group, Inc.

United States Court of Appeals, Second Circuit

July 24, 2014

CINDY MOLL, Plaintiff-Counter-Defendant-Appellant,
v.
TELESECTOR RESOURCES GROUP, INC., DBA VERIZON SERVICES GROUP, AKA VERIZON NEW YORK INC., Defendant-Counter-Claimant-Appellee

Argued October 29, 2013.

Page 199

JOSEPHINE A. GRECO (Duane D. Schoonmaker, on the brief), Greco Trapp, PLLC, Buffalo, NY, for Plaintiff-Appellant.

JAMES S. URBAN, Jones Day, Pittsburgh, PA, for Defendant-Appellee.

Before: WALKER, CABRANES, and PARKER, Circuit Judges.

OPINION

Page 200

John M. Walker, Jr., Circuit Judge:

Cindy Moll (" Moll" ) appeals fro the decisions of the United States District Court for the Western District of New York, William M. Skretny, J., granting in part Verizon's motion to dismiss and motion for summary judgment, and denying Moll's motion to compel production of documents.

Moll alleges that Verizon discriminated against her, subjected her to a sexually hostile work environment, retaliated against her for complaints of discrimination and harassment, and paid her less than her male colleagues for equal work. The district court concluded that Moll premised her hostile work environment claim on only the allegations that were sexually offensive. And because Moll did not allege any " sexually offensive acts" within the applicable statute of limitations, it dismissed her hostile work environment claims. The district court erred when it refused to consider all allegations in the Complaint in their totality, including those that were not sexually offensive in nature. Sex-based hostile work environment claims may be supported by facially sex-neutral incidents and " sexually offensive" acts may be facially sex-neutral. See Alfano v. Costello, 294 F.3d 365, 375 (2d Cir. 2002). We therefore VACATE the judgment of the district court insofar as it granted in part Verizon's motion to dismiss.

We also find that the district court abused its discretion when it denied Moll's motion to compel documents related to Verizon's Reduction in Force events and, therefore, order the district court to compel production of such documents. Accordingly, we VACATE the judgment of the district court insofar as it granted in part Verizon's motion for summary judgment.

Page 201

In addition, we conclude that the district court erred when it refused to consider a witness's statements in an affidavit that contradicted prior deposition testimony. Although a party cannot create a material issue of fact to defeat a motion for summary judgment by simply contradicting his earlier testimony, the " sham issue of fact" doctrine does not mandate that the court disregard a non-party witness's subsequent testimony when it conflicts with the non-party witness's prior statement. We thus VACATE the judgment of the district court insofar as it granted in part Verizon's motion for summary judgment.

We remand for further proceedings consistent with this opinion.

BACKGROUND

Moll's story begins in 1997 when Telesector Resources Group, Inc.[1] (" Verizon" ) promoted her from clerical employee to System Analyst/Sales Engineer in its Buffalo, New York office. Moll alleges that beginning in 1998 she was subjected to sex-based disparate treatment, a hostile work environment, and retaliation.

Moll alleges that in 1998 and 1999, Daniel Irving, a Senior Systems Analyst, left Moll three inappropriate notes. And in 1999, while they were on a business trip, Irving called her hotel room repeatedly and asked her to come to his hotel room. After Irving became her direct supervisor in March 2001, Moll alleges that he left her a note that said he thought about her when he was taking a shower. Moll also claims that Irving would not permit her to communicate with him by email or telephone; she had to see him in person. And Moll claims that throughout his tenure as her supervisor, Irving refused to have her assessed for a promotion claiming that there was a promotion freeze. However, two male colleagues were promoted during this time period.

In March 2002, Irving placed Moll on a counseling plan based on her job performance. That year Moll was the lowest paid Sales Engineer in the Buffalo office. Moll occasionally worked at home, usually when one of her children was sick. In May 2002, however, Irving informed Moll that she could no longer work at home even though, according to Moll, her male counterparts continued to do so. Moll was denied a request to take vacation on July 5, 2002. Yet, Moll alleges, male colleagues with less tenure were granted the same vacation request. Moll ...


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