     12-4688-cv; 13-0918-cv
     Moll v. Telesector Resources Group, Inc.

 1

 2                                   In the
 3             United States Court of Appeals
 4                        For the Second Circuit
 5                                   ________
 6
 7                             AUGUST TERM, 2013
 8
 9                         ARGUED: OCTOBER 29, 2013
10                          DECIDED: JULY 24, 2014
11
12                         Nos. 12-4688-cv, 13-0918-cv
13
14                                 CINDY MOLL,
15                    Plaintiff-Counter-Defendant-Appellant,
16
17                                       v.
18
19   TELESECTOR RESOURCES GROUP, INC., DBA VERIZON SERVICES GROUP,
20                   AKA VERIZON NEW YORK INC.,
21                 Defendant-Counter-Claimant-Appellee.
22                              ________
23
24   Before: WALKER, CABRANES, and PARKER, Circuit Judges.
25                              ________
26
27         Cindy Moll (‚Moll‛) appeals from the decisions of the United

28   States District Court for the Western District of New York, William

29   M. Skretny, J., granting in part Verizon’s motion to dismiss and

30   motion for summary judgment, and denying Moll’s motion to

31   compel production of documents.
     2                                          Nos. 12-4688-cv, 13-0918-cv

 1         Moll alleges that Verizon discriminated against her, subjected

 2   her to a sexually hostile work environment, retaliated against her for

 3   complaints of discrimination and harassment and paid her less than

 4   her male colleagues for equal work. The district court concluded that

 5   Moll premised her hostile work environment claim on only the

 6   allegations that were sexually offensive. And because Moll did not

 7   allege any ‚sexually offensive acts‛ within the applicable statute of

 8   limitations, it dismissed her hostile work environment claims. The

 9   district court erred when it refused to consider all allegations in the

10   Complaint in their totality, including those that were not sexually

11   offensive in nature. Sex-based hostile work environment claims may

12   be supported by facially sex-neutral incidents and ‚sexually

13   offensive‛ acts may be facially sex-neutral. See Alfano v. Costello, 294

14   F.3d 365, 375 (2d Cir. 2002). We therefore VACATE the judgment of

15   the district court insofar as it granted in part Verizon’s motion to

16   dismiss.

17         We also find that the district court erred when it denied Moll’s

18   motion to compel documents related to Verizon’s Reduction in Force

19   events and, therefore, order the district court to compel production

20   of such documents. Accordingly, we VACATE the judgment of the
     3                                       Nos. 12-4688-cv, 13-0918-cv

 1   district court insofar as it granted in part Verizon’s motion for

 2   summary judgment.

 3         In addition, we conclude that the district court erred when it

 4   disregarded a witness’s affidavit because it contradicted the

 5   witness’s prior deposition testimony. Although a party cannot create

 6   a material issue of fact to defeat a motion for summary judgment

 7   simply contradicting his earlier testimony, the ‚sham issue of fact‛

 8   doctrine does not mandate that the court disregard a non-party

 9   witness’s subsequent testimony when it conflicts with the non-party

10   witness’s prior statement. We thus VACATE the judgment of the

11   district court insofar as it granted in part Verizon’s motion for

12   summary judgment.

13         We remand for further proceedings consistent with this

14   opinion.

15                                ________
16
17                     JOSEPHINE A. GRECO (Duane D. Schoonmaker, on
18                     the brief), Greco Trapp, PLLC, Buffalo, NY, for
19                     Plaintiff-Appellant.

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

22                                ________
23
     4                                          Nos. 12-4688-cv, 13-0918-cv

 1   JOHN M. WALKER, JR., Circuit Judge:

 2         Cindy Moll (‚Moll‛) appeals from the decisions of the United

 3   States District Court for the Western District of New York, William

 4   M. Skretny, J., granting in part Verizon’s motion to dismiss and

 5   motion for summary judgment, and denying Moll’s motion to

 6   compel production of documents.

 7         Moll alleges that Verizon discriminated against her, subjected

 8   her to a sexually hostile work environment, retaliated against her for

 9   complaints of discrimination and harassment, and paid her less than

10   her male colleagues for equal work. The district court concluded that

11   Moll premised her hostile work environment claim on only the

12   allegations that were sexually offensive. And because Moll did not

13   allege any ‚sexually offensive acts‛ within the applicable statute of

14   limitations, it dismissed her hostile work environment claims. The

15   district court erred when it refused to consider all allegations in the

16   Complaint in their totality, including those that were not sexually

17   offensive in nature. Sex-based hostile work environment claims may

18   be supported by facially sex-neutral incidents and ‚sexually

19   offensive‛ acts may be facially sex-neutral. See Alfano v. Costello, 294

20   F.3d 365, 375 (2d Cir. 2002). We therefore VACATE the judgment of
     5                                         Nos. 12-4688-cv, 13-0918-cv

 1   the district court insofar as it granted in part Verizon’s motion to

 2   dismiss.

 3         We also find that the district court abused its discretion when

 4   it denied Moll’s motion to compel documents related to Verizon’s

 5   Reduction in Force events and, therefore, order the district court to

 6   compel production of such documents. Accordingly, we VACATE

 7   the judgment of the district court insofar as it granted in part

 8   Verizon’s motion for summary judgment.

 9         In addition, we conclude that the district court erred when it

10   refused to consider a witness’s statements in an affidavit that

11   contradicted prior deposition testimony. Although a party cannot

12   create a material issue of fact to defeat a motion for summary

13   judgment by simply contradicting his earlier testimony, the ‚sham

14   issue of fact‛ doctrine does not mandate that the court disregard a

15   non-party witness’s subsequent testimony when it conflicts with the

16   non-party witness’s prior statement. We thus VACATE the

17   judgment of the district court insofar as it granted in part Verizon’s

18   motion for summary judgment.

19         We remand for further proceedings consistent with this

20   opinion.
     6                                         Nos. 12-4688-cv, 13-0918-cv

 1                             BACKGROUND

 2           Moll’s story begins in 1997 when Telesector Resources Group,

 3   Inc.1 (‚Verizon‛) promoted her from clerical employee to System

 4   Analyst/Sales Engineer in its Buffalo, New York office. Moll alleges

 5   that beginning in 1998 she was subjected to sex-based disparate

 6   treatment, a hostile work environment, and retaliation.

 7           Moll alleges that in 1998 and 1999, Daniel Irving, a Senior

 8   Systems Analyst, left Moll three inappropriate notes. And in 1999,

 9   while they were on a business trip, Irving called her hotel room

10   repeatedly and asked her to come to his hotel room. After Irving

11   became her direct supervisor in March 2001, Moll alleges that he left

12   her a note that said he thought about her when he was taking a

13   shower. Moll also claims that Irving would not permit her to

14   communicate with him by email or telephone; she had to see him in

15   person. And Moll claims that throughout his tenure as her

16   supervisor, Irving refused to have her assessed for a promotion

17   claiming that there was a promotion freeze. However, two male

18   colleagues were promoted during this time period.

         1
          Telesector Resources Group, Inc. is owned 50/50 by Verizon New
     York Inc. and Verizon New England Inc., each of which is a wholly owned
     subsidiary of NYNEX Corporation. NYNEX Corporation is a wholly
     owned subsidiary of Verizon Communications Inc.
     7                                        Nos. 12-4688-cv, 13-0918-cv

 1         In March 2002, Irving placed Moll on a counseling plan based

 2   on her job performance. That year Moll was the lowest paid Sales

 3   Engineer in the Buffalo office. Moll occasionally worked at home,

 4   usually when one of her children was sick. In May 2002, however,

 5   Irving informed Moll that she could no longer work at home even

 6   though, according to Moll, her male counterparts continued to do so.

 7   Moll was denied a request to take vacation on July 5, 2002. Yet, Moll

 8   alleges, male colleagues with less tenure were granted the same

 9   vacation request. Moll also claims that she and other women in the

10   office were excluded from work-related social events, including

11   attending professional hockey games.

12         In January 2003, Christopher Gaglione became her supervisor.

13   In July 2003, Gaglione promoted Moll to Sales Engineer II.

14         On September 19, 2003, Moll filed a Charge of Discrimination

15   with the Equal Employment Opportunity Commission (‚EEOC‛)

16   alleging that she had been ‚subjected to different terms and

17   conditions of employment than similarly situated male employees‛

18   and a ‚hostile work environment.‛ J.A. 67. Moll also complained

19   that she had been promoted ‚to a lower level position than similarly

20   situated males‛ and generally alleged retaliation after complaining
     8                                         Nos. 12-4688-cv, 13-0918-cv

 1   to Verizon management of sexual discrimination and harassment. Id.

 2   The EEOC issued a Notice of Right to Sue dated August 9, 2004.

 3         On October 5, 2004, Moll filed a complaint with the district

 4   court, alleging that she had been (i) subjected to gender-disparate

 5   treatment; (ii) subjected to a sexually hostile work environment;

 6   (iii) retaliated against; and (iv) paid less than male employees, in

 7   violation of Title VII of the Civil Rights Act of 1964, § 102(a) of the

 8   Civil Rights Act of 1991, the New York State Human Rights Law

 9   (‚NYSHRL‛), and the Equal Pay Act (‚EPA‛).

10         In December 2004, Verizon transferred the Sales Engineers in

11   the Buffalo office to the Syracuse office, purportedly because the

12   company wanted all of the Sales Engineers to work out of the same

13   office as their supervisors.   Moll alleged that this transfer was

14   retaliation for her lawsuit.   Verizon offered Moll three options:

15   (1) transfer to Syracuse; (2) find a new job at Verizon; or (3) take a

16   severance package. Moll claims she had no choice but to transfer to

17   Syracuse because she could not find another job at Verizon and

18   Verizon refused to give her details regarding her severance package.

19   Moll was told that she must report to the Syracuse office when she

20   was not in customer meetings and that she could not work from
     9                                         Nos. 12-4688-cv, 13-0918-cv

 1   home. Moll eventually took disability leave because of the

 2   ‚overwhelming stress and anxiety‛ she experienced.

 3         On December 20, 2004, Verizon filed a motion to dismiss the

 4   complaint under Federal Rule of Civil Procedure 12(b)(6), except for

 5   a single purported incident of disparate treatment. In September

 6   2005, the district court issued an order granting, in part, and

 7   denying, in part, the motion. The district court, inter alia, dismissed

 8   Moll’s claims of hostile work environment in violation of Title VII

 9   and the NYSHRL on the basis that Moll failed to allege that any

10   sexually offensive conduct occurred within the applicable statute of

11   limitations and that therefore her hostile work environment claims

12   were time-barred. Moll v. Telesector Res. Grp., Inc., No. 04-cv-805S,

13   2005 WL 2405999, at *7, 12 (W.D.N.Y. Sept. 29, 2005).

14         In February 2006, Moll’s job was transferred to Buffalo and

15   Moll returned to work from disability leave. In February 2007,

16   Moll’s supervisor told her that there would be a Reduction in Force

17   (‚RIF‛) and that she would be terminated because her performance

18   was below the performance of her peers. Moll claims that no

19   documents or other evidence was offered to support her

20   supervisor’s conclusion that her performance was below par. On
     10                                        Nos. 12-4688-cv, 13-0918-cv

 1   February 7, 2007, Moll was officially terminated. On April 17, 2008,

 2   Moll filed an Amended Complaint in the district court adding the

 3   allegations that her termination and her transfer to Syracuse were

 4   retaliatory.

 5         On August 13, 2010, Moll filed a motion to compel the

 6   production of documents relating to her retaliation claim. One

 7   request (No. 20) sought, among other things, ‚all documents of or

 8   concerning a reduction in force on or about February of 2007.‛

 9   Verizon represented that it ‚performed a reasonable search and has

10   already produced all responsive documents, or has in its possession

11   no responsive documents.‛ The magistrate judge relied on this

12   representation and denied Moll’s request. Moll v. Telesector Res. Grp.,

13   Inc., No. 04-cv-805S, 2010 WL 4642931, at *7 (W.D.N.Y. 2010).

14         A second request (No. 21), sought ‚all documents of or

15   concerning any position, including but not limited to sales engineer

16   a/k/a solutions engineer eliminated as a result of a reduction in force

17   in the Buffalo, Rochester, Syracuse, or Albany offices during the

18   period of January 2004 through the present.‛ The magistrate judge

19   denied this request on the basis that it was ‚irrelevant whether the

20   criteria utilized for a reduction in force preceding or following the
     11                                         Nos. 12-4688-cv, 13-0918-cv

 1   reduction in force which terminated plaintiff was similar or distinct‛

 2   and denied the motion. Id.

 3         A third request (No. 5), sought all personnel files of

 4   employees who held the position of Sales Engineer in Buffalo,

 5   Rochester, or Syracuse, which she argued may be used to support

 6   her claim of sex discrimination as possible comparators. The

 7   magistrate judge denied Moll’s request, finding ‚no basis for the

 8   disclosure of confidential personnel records of employees in other

 9   offices. Id. at *4. Following Moll’s objections, the district court

10   upheld this determination.

11         In September 2011, Verizon moved for summary judgment.

12   On May 30, 2012, the district court granted, in part, Verizon’s

13   motion for summary judgment and dismissed all claims except that

14   her promotion      to the position of Sales Engineer           II was

15   discriminatorily delayed. Moll v. Telesector Res. Grp., Inc., No. 04-cv-

16   805S, 2012 WL 1935087 (W.D.N.Y. May 30, 2012). Moll and Verizon

17   settled the discrete promotion-delay claim and entered into a

18   Stipulation of Dismissal. Moll appealed the district court’s 2005

19   ruling on Verizon’s motion to dismiss, its 2010 ruling on her motion
     12                                        Nos. 12-4688-cv, 13-0918-cv

 1   to compel, and its 2012 ruling on Verizon’s motion for summary

 2   judgment.


 3                              DISCUSSION

 4   I.    Motion to Dismiss: Hostile Work Environment Claims

 5         We review a district court’s grant of a motion to dismiss de

 6   novo. Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009). The

 7   district court dismissed Moll’s hostile work environment claims

 8   under Title VII and the NYSHRL, finding that Moll failed to allege

 9   facts to support a claim within the applicable statute of limitations.

10   Moll argues that the district court improperly calculated the

11   NYSHRL statute of limitations. Moll also argues that events which

12   occurred prior to the statute of limitations are actionable under the

13   continuing violation exception. Finally, Moll argues that the district

14   court erred when it failed to consider acts that were not sexually

15   offensive in nature.

16         We conclude that the district court erred when it failed to

17   consider all allegations in the Complaint in their totality, including

18   those that were not sexually offensive in nature.

19         ‚A hostile work environment exists under Title VII where ‚the

20   workplace is permeated with discriminatory intimidation, ridicule,
     13                                            Nos. 12-4688-cv, 13-0918-cv

 1   and insult, that is sufficiently severe or pervasive to alter the

 2   conditions of the victim’s employment and create an abusive

 3   working environment.‛ Mack v. Otis Elevator Co., 326 F.3d 116, 122

 4   (2d Cir. 2003) (internal quotation marks and alteration omitted),

 5   abrogated on other grounds by Vance v. Ball State Univ., 133 S. Ct. 2434

 6   (2013). ‚To decide whether the threshold has been reached, courts

 7   examine the case-specific circumstances in their totality and evaluate

 8   the severity, frequency, and degree of the abuse.‛ Alfano, 294 F.3d at

 9   374 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). ‚Facially

10   [sex-]neutral incidents may be included . . . among the ‘totality of the

11   circumstances’ that courts consider in any hostile work environment

12   claim, so long as a reasonable fact-finder could conclude that they

13   were, in fact, based on sex.‛ Id. at 378; see also Raniola v. Bratton 243

14   F.3d 610, 622-23 (2d Cir. 2001); Howley v. Town of Stratford, 217 F.3d

15   141, 155-56 (2d Cir. 2000).

16          Moll’s Complaint includes both sexually overt and facially

17   sex-neutral    incidents    to   allege   a    sex-based    hostile    work

18   environment. The district court should have considered all incidents

19   in   their    totality—including     sex-neutral    incidents—before       it

20   dismissed Moll’s hostile work environment claims for failure to
     14                                         Nos. 12-4688-cv, 13-0918-cv

 1   allege an actionable incident within the applicable statute of

 2   limitations.

 3         On appeal, Verizon argues for the first time that Moll’s hostile

 4   work environment claims also fail because her allegations are not

 5   sufficiently pervasive or severe to support an actionable claim. ‚*I+t

 6   is a well-established general rule that an appellate court will not

 7   consider an issue raised for the first time on appeal.‛ Greene v. United

 8   States, 13 F.3d 577, 586 (2d Cir. 1994). While the rule is not an

 9   absolute bar, id., we choose not to address the merits of Verizon’s

10   argument.

11         Accordingly, we vacate the district court’s decision to dismiss

12   Moll’s Title VII and NYSHRL hostile work environment claims and

13   remand for further proceedings. We leave consideration of Moll’s

14   other arguments to the district court in the first instance and we

15   express no views on the merits of Moll’s hostile work environment

16   claims.

17   II.   Motion to Compel

18         We review a district court’s discovery rulings for abuse of

19   discretion. Wood v. FBI, 432 F.3d 78, 82 (2d Cir. 2005); see also In re

20   Sims, 534 F.3d 117, 132 (2d Cir. 2008) (explaining that the term of art
     15                                        Nos. 12-4688-cv, 13-0918-cv

 1   ‚abuse of discretion‛ includes errors of law, clearly erroneous

 2   assessments of the evidence, or decisions ‚that cannot be located

 3   within the range of permissible decisions‛ (internal quotation marks

 4   omitted)). Moll argues that the relevance and materiality of her

 5   request for documents relating to the February 2007 reduction in

 6   force, previous and following reductions in force, and similarly-

 7   situated Verizon employees is plain. We agree. The district court

 8   erred by refusing to compel Verizon to provide the records Moll

 9   requested in Request Nos. 5 and 21. While we are in no position to

10   second-guess Verizon’s representation that the documents Moll

11   sought in Request No. 20 do not exist, we note that the failure to

12   keep records of the reduction in force that resulted in Moll’s

13   termination may itself constitute evidence that the reduction in force

14   was pretextual.

15         ‚Evidence relating to company-wide practices may reveal

16   patterns of discrimination against a group of employees, increasing

17   the likelihood that an employer’s offered explanation for an

18   employment decision regarding a particular individual masks a

19   discriminatory motive.‛ Hollander v. Am. Cyanamid Co. 895 F.2d 80,

20   84 (2d Cir. 1990). See also id. (concluding that discovery request that
     16                                        Nos. 12-4688-cv, 13-0918-cv

 1   ‚goes beyond the narrow confines of the [ ] facility in which

 2   [plaintiff] worked . . . is relevant‛ to discrimination claim).   This

 3   same evidence may be used to detect retaliatory motives and

 4   unequal pay. The district court’s refusal to compel Verizon to

 5   produce the requested documents deprived Moll of the opportunity

 6   to find evidence that might support her argument that Verizon’s

 7   reasons for firing her were pretextual, that she was discriminated

 8   based on her sex, or that she was paid unequally.

 9          Accordingly, we vacate the order insofar as it denied Moll’s

10   motion to compel Request Nos. 5 and 21. We remand the case to the

11   district court with directions to compel Verizon to produce such

12   documents.

13   III.   Motion for Summary Judgment

14          Because we reverse the district court’s order denying Moll’s

15   motion to compel, we vacate the summary judgment. If, following

16   discovery, Moll is unable to establish a genuine issue of material fact

17   suggesting Verizon discriminated or retaliated against her, the

18   district court is free to re-consider summary judgment for Verizon.

19          We note, however, that the district court erred when it

20   concluded that it ‚must disregard‛ Christopher Gaglione’s sworn
     17                                         Nos. 12-4688-cv, 13-0918-cv

 1   statement that Moll’s transfer was motivated by retaliatory intent

 2   because it contradicted his prior deposition testimony. Moll, 2012

 3   WL 1935087, at *22. The district court was not required to disregard

 4   Gaglione’s testimony.

 5         In November 2005, when Gaglione was employed by Verizon,

 6   he testified at his deposition that there was a valid reason for Moll’s

 7   transfer to the Syracuse office—specifically, to centralize resources in

 8   the office where Gaglione, their manager, was located. In November

 9   2011, however, after Gaglione was fired from Verizon, he stated in a

10   declaration that ‚*t]he primary factor for [the] decision [to transfer

11   Moll] was an effort to retaliate against . . . [her] for [her] continuing

12   complaints of discrimination and retaliation.‛ He went on to say that

13   Verizon ‚justified this transfer with the pretext that all *System

14   Engineers+ . . . should work together.‛ The district court determined

15   that it ‚must disregard‛ Gaglione’s second statement ‚because it

16   contradicts his prior deposition testimony.‛ Id. We conclude that this

17   was error.

18         The ‚sham issue of fact‛ doctrine ‚prohibits a party from

19   defeating summary judgment simply by submitting an affidavit that

20   contradicts the party’s previous sworn testimony.‛ In re Fosamax
     18                                         Nos. 12-4688-cv, 13-0918-cv

 1   Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013) (per curiam)

 2   (emphasis supplied). See also Brown v. Henderson, 257 F.3d 246, 252

 3   (2d Cir. 2001) (‚[F]actual allegations that might otherwise defeat a

 4   motion for summary judgment will not be permitted to do so when

 5   they are made for the first time in the plaintiff’s affidavit opposing

 6   summary judgment and that affidavit contradicts her own prior

 7   deposition testimony.‛); Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614,

 8   619 (2d Cir. 1996) (‚*A+ party may not create an issue of fact by

 9   submitting an affidavit in opposition to a summary judgment

10   motion that, by omission or addition, contradicts the affiant’s

11   previous deposition testimony.‛). The purpose of the doctrine is

12   clear: ‚[i]f a party who has been examined at length on deposition

13   could raise an issue of fact simply by submitting an affidavit

14   contradicting his own prior testimony, this would greatly diminish

15   the utility of summary judgment as a procedure for screening out

16   sham issues of fact.‛ Perma Research & Dev. Co. v. Singer Co., 410 F.2d

17   572, 578 (2d Cir. 1969). Thus, factual issues that a party creates by

18   filing an affidavit crafted to oppose a summary judgment motion

19   that contradicts that party’s prior testimony are not ‚genuine‛ issues

20   for trial. Id.
     19                                           Nos. 12-4688-cv, 13-0918-cv

 1          Here, however, Gaglione was not a party to the action, nor did

 2   he have a familial or other close relationship with the plaintiff that

 3   suggests Moll could influence Gaglione’s testimony. Moreover, there

 4   is nothing in the record to suggest that Gaglione submitted the

 5   declaration solely to create a genuine issue of fact. Therefore the

 6   district court was not required to disregard Gaglione’s second sworn

 7   statement.

 8          In certain circumstance we have held that sham issue of fact

 9   doctrine applies to third-party witnesses, particularly expert

10   witnesses. See Fosamax, 707 F.3d at 193 (holding that the sham

11   affidavit doctrine applies to stop a party from manufacturing a

12   factual dispute by submitting testimony from an expert whom she

13   tendered); AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626

14   F.3d 699, 736 (2d Cir. 2010) (holding that plaintiffs’ expert report that

15   contradicted plaintiff’s prior representations was insufficient to

16   defeat motion for summary judgment). But in doing so we explained

17   that a party cannot ‚manufactur*e+ a factual dispute by submitting

18   testimony from an expert whom she tendered‛ with contradictions

19   that   are,   inter   alia,   ‚unequivocal    and   inescapable,‛   and

20   ‚unexplained.‛ Fosamax, 707 F.3d at 194.
     20                                         Nos. 12-4688-cv, 13-0918-cv

 1            Apart from not being a party to the action, Gaglione was not

 2   an expert nor was he retained in any way by the plaintiff.2 Nor are

 3   we convinced that his affidavit ‚inescapably and unequivocally‛

 4   contradicted his earlier testimony without explanation. To the

 5   contrary, there is a readily apparent, plausible explanation for any

 6   inconsistency in his testimony: At the time of his earlier deposition

 7   Gaglione was employed by Verizon; when he provided his

 8   subsequent declaration Verizon had terminated him. The fact that

 9   the later declaration was more favorable to Moll could be explained

10   in one of two ways: either he felt inhibited at the time of the first

11   deposition from portraying his employer in a bad light, or when he

12   issued his later declaration he wanted to get even with Verizon for

13   terminating him. Gaglione states in his later declaration that he

14   ‚regret[s] that [he] failed to do more to complain about the

15   retaliatory nature of the plan‛ because he ‚was more concerned

16   about losing *his+ job.‛ It seems to us that the veracity of the witness

17   in these circumstances presents a quintessential question of fact for

18   the fact-finder.


          Although the fact that Gaglione was a non-expert witness bears on
          2

     our decision here, we do not hold that non-expert third-party witnesses
     can never be subject to the sham affidavit rule.
     21                                        Nos. 12-4688-cv, 13-0918-cv

 1         Ordinarily, when a district court is asked to consider

 2   contradictory deposition testimony of a fact witness at summary

 3   judgment, ‚a district court may not discredit a witness’s deposition

 4   testimony . . . because the assessment of a witness’s credibility is a

 5   function reserved for the jury.‛ Fincher v. Depository Trust & Clearing

 6   Corp., 604 F.3d 712, 725 (2d Cir. 2010). It was error for the district

 7   court to categorically refuse to consider Gaglione’s subsequent

 8   declaration; the sham issue doctrine does not go so far. If defendant

 9   files a second motion for summary judgment, we direct the district

10   court to consider Gaglione’s second sworn statement in his

11   declaration.


12                              CONCLUSION

13         For the reasons set forth above, we (1) vacate the district

14   court’s 2005 decision granting Verizon’s motion to dismiss Moll’s

15   hostile work environment claims; (2) vacate the district court’s 2010

16   ruling on Moll’s motion to compel Request Nos. 5 and 21; and (3)

17   vacate the district court’s 2012 decision granting in part Verizon’s

18   motion for summary judgment. We remand for further proceedings

19   consistent with this opinion.
