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Expert Advice

On the “Knife’s Edge”: Appellate Guidance on Summary Judgment in Harassment Cases

By David Van Pelt  |  August 22, 2017
Appellate Guidance on Summary Judgment in Harassment Cases


In a recent federal appellate decision in a case that fell on the “knife’s edge” of whether alleged harassment was sufficient to defeat summary judgment, the court wrestled with the question of whether the plaintiff had presented enough proof to withstand the defendant employer’s motion for summary judgment.  The appellate court concluded that the  evidence did create a triable issue of fact, and it reversed a district court’s ruling in favor of the defendant-employer.

In doing so, the appellate panel highlighted the quantum of evidence required to state a claim.

In Ahmed v. Astoria Bank, 2017 WL 1906726 (2d Cir.), the Second Circuit addressed the plaintiff’s appeal from a trial court’s ruling that granted summary judgment to an employer on a Muslim employee’s hostile work environment claim under Title VII of the Civil Rights Act (42 U.S.C. §2000d).  The appellate judges devoted much of their brief opinion to explaining why the plaintiff’s affidavit–submitted in opposition to the employer’s summary judgment motion–was properly admitted into evidence.

The court’s reasoning provides a useful reminder regarding the importance of carefully-tailored, and exhaustive, deposition questioning in these cases.  The plaintiff had testified at deposition that one of her supervisors used “hand gestures” in connection with “anything she [had] to discuss” with the plaintiff, but apparently was not questioned regarding the frequency of the gestures or the supervisor’s manner of speaking.  Noting that a party’s declaration can be used to supplement an issue that was not “thoroughly or clearly explored” during a deposition, the Second Circuit ruled that the plaintiff’s assertion in her affidavit that the supervisor “continually used hand gestures to communicate” with her, and spoke “very slowly” while doing so, was consistent with her deposition testimony.

The court of appeal next focused on the evidence offered by the plaintiff in support of her hostile environment harassment claim.  In addition to the conduct described above, the court cited admissible evidence that a different supervisor constantly instructed the plaintiff to remove her hijab, which the supervisor referred to as a “rag;” demeaned the plaintiff’s race, ethnicity and religion on several occasions; and made a comment during the plaintiff’s initial job interview that the plaintiff and several other Muslim employees looked “suspicious” and the supervisor was happy to be on the other side of the building “in case you guys do anything.”

Taken as a whole, the court held that this evidence could “lead a reasonable jury to find that [the plaintiff] was subjected to ‘a steady barrage of opprobrious racial’ and anti-Muslim comments and conduct constituting a hostile work environment.”

Unfortunately, the court of appeals did not engage in any detailed analysis as to why the evidence put forward by the plaintiff tipped the scales against dismissal of the plaintiff’s hostile environment claim.  Nonetheless, the court appeared to place particular emphasis on the recurring nature of the conduct, and the fact that offending conduct originated from more than one individual.  Aside from the supervisor’s remark during the plaintiff’s interview, the comments and gestures toward the plaintiff occurred on several occasions, while the remarks regarding the plaintiff’s hijab were characterized as “constant.”

It was the frequency of the events, together with the multiple sources of the alleged harassment, which enabled the plaintiff to defeat summary judgment and proceed to trial on her harassment claim.

As a practitioner, the take-aways from the Ahmed decision are apparent:

First, failing to close out every aspect of the alleged conduct supporting a harassment claim during the plaintiff’s deposition is a recipe for disaster.  The record must be clear that plaintiff has testified to the entirety of the alleged harassing conduct, including the frequency of the events, any offending gestures, the tone of the perpetrator’s voice and any other aspect of the behavior that the plaintiff asserts contributed to its harassing nature.  Only if the deposition testimony is comprehensive can a defendant defeat the plaintiff’s attempt to supplement deposition testimony with additional details that can, in some cases, make the difference between summary judgment and a triable issue of fact.

Second, as to the evidence sufficient to defeat summary judgment in a hostile environment claim, the Second Circuit reaffirmed the principle that recurring conduct, particularly when it comes from more than one individual, will usually suffice to state a claim.

Whether attempting to prevail on summary judgment, or defeat it, attorneys litigating hostile environment claims should be cognizant that these factors could prove to be the difference between prevailing on a decisive pretrial motion and being forced to proceed to an expensive trial.

David Van Pelt is Special Counsel in the Labor and Employment practice group at Kelley Drye & Warren. He represents clients in labor and employment matters, including respect to wage and hour issues, employment termination, employee leave, accommodation of disabilities and employee relations.

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