In Lawson v. Homenuk, 2017 WL 4534779 (2d Cir. Oct. 11, 2017) (Summary Order), the Second Circuit affirmed the dismissal of plaintiff’s disability-based hostile work environment claim under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.
From the Order:
Although Lawson argues that her coworkers “constantly” made derogatory comments about her mental health …, this argument is belied by her deposition testimony, in which she stated that she could recall only one instance of such a remark. This isolated incident is insufficiently severe to permit a rational trier of fact to find a hostile work environment. …
In urging otherwise, Lawson points to an affidavit submitted in opposition to summary judgment, in which she stated that she endured insults related to her mental health on a “near daily” basis “for a period of almost a year.” App’x 287. Lawson contends that the district court erred in finding that her affidavit contradicted her previous deposition testimony, and in declining to consider the affidavit to the extent it identified such contradictions. The argument is defeated by precedent holding that a party cannot “create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 482 (2d Cir. 2014) (internal quotation marks omitted). Indeed, “[i]t is well settled in this circuit” that such an affidavit “should be disregarded.” Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995) (alteration in original) (internal quotation marks omitted). Lawson contends that this precedent is inapplicable here because any contradictions between her deposition testimony and affidavit are not sufficiently “inescapable and unequivocal.” In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 194 (2d Cir. 2013). Specifically, Lawson maintains that there is no clear contradiction as to the frequency with which she experienced harassment because her deposition testimony discusses the one occasion on which she heard “subordinates discuss her medical condition,” while her affidavit addresses many instances in which she was “insulted” by coworkers. Appellant’s Br. 11. We are not persuaded.
At her deposition, Lawson testified that coworkers discussing her medical condition said “like, oh, she’s unstable, stuff like that,” and were “laughing at” and “mocking” her for being “cuckoo for Cocoa Puffs.” App’x 170–72. In her affidavit, Lawson similarly stated that coworkers “laugh[ed] at” her and called her, among other derogatory names, “cuckoo for co[ ]coa puffs.” Id. at 286. This belies the distinction she attempts to draw between the deposition and affidavit and supports the district court’s identification of a clear contradiction as to the frequency of harassment. Because Lawson has not provided a plausible explanation for this contradiction, see In re Fosamax Prods. Liab. Litig., 707 F.3d at 194, her affidavit cannot create a triable issue of fact as to the existence of a hostile work environment.
The court also affirmed the dismissal of plaintiff’s constructive discharge claim. Noting that the constructive discharge standard is “higher” than that for a hostile work environment, the court held that it was upholding the dismissal of the former claim based on its finding that workplace conditions were “insufficiently severe” and “not so intolerable” to support her constructive discharge claim. In addition, plaintiff’s “claim of constructive discharge is further undermined by her deposition testimony that she resigned to start a day care center, in preparation for which she had taken classes and studied to earn a certificate.”