12-4688-cv; 13-0918-cv Moll v. Telesector Resources Group, Inc. 1 In the 2 United States Court of Appeals 3 For the…

12-4688-cv; 13-0918-cv
Moll v. Telesector Resources Group, Inc.
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
AUGUST TERM, 2013 7
8
ARGUED: OCTOBER 29, 2013 9
DECIDED: JULY 24, 2014 10
11
Nos. 12-4688-cv, 13-0918-cv 12
13
CINDY MOLL, 14
Plaintiff-Counter-Defendant-Appellant, 15
16
v. 17
18
TELESECTOR RESOURCES GROUP, INC., DBA VERIZON SERVICES GROUP, 19
AKA VERIZON NEW YORK INC., 20
Defendant-Counter-Claimant-Appellee. 21
________ 22
23
Before: WALKER, CABRANES, and PARKER, Circuit Judges. 24
________ 25
26
Cindy Moll (‚Moll‛) appeals from the decisions of the United 27
States District Court for the Western District of New York, William 28
M. Skretny, J., granting in part Verizon’s motion to dismiss and 29
motion for summary judgment, and denying Moll’s motion to 30
compel production of documents. 31

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2 Nos. 12-4688-cv, 13-0918-cv
Moll alleges that Verizon discriminated against her, subjected 1
her to a sexually hostile work environment, retaliated against her for 2
complaints of discrimination and harassment and paid her less than 3
her male colleagues for equal work. The district court concluded that 4
Moll premised her hostile work environment claim on only the 5
allegations that were sexually offensive. And because Moll did not 6
allege any ‚sexually offensive acts‛ within the applicable statute of 7
limitations, it dismissed her hostile work environment claims. The 8
district court erred when it refused to consider all allegations in the 9
Complaint in their totality, including those that were not sexually 10
offensive in nature. Sex-based hostile work environment claims may 11
be supported by facially sex-neutral incidents and ‚sexually 12
offensive‛ acts may be facially sex-neutral. See Alfano v. Costello, 294 13
F.3d 365, 375 (2d Cir. 2002). We therefore VACATE the judgment of 14
the district court insofar as it granted in part Verizon’s motion to 15
dismiss. 16
We also find that the district court erred when it denied Moll’s 17
motion to compel documents related to Verizon’s Reduction in Force 18
events and, therefore, order the district court to compel production 19
of such documents. Accordingly, we VACATE the judgment of the 20

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3 Nos. 12-4688-cv, 13-0918-cv
district court insofar as it granted in part Verizon’s motion for 1
summary judgment. 2
In addition, we conclude that the district court erred when it 3
disregarded a witness’s affidavit because it contradicted the 4
witness’s prior deposition testimony. Although a party cannot create 5
a material issue of fact to defeat a motion for summary judgment 6
simply contradicting his earlier testimony, the ‚sham issue of fact‛ 7
doctrine does not mandate that the court disregard a non-party 8
witness’s subsequent testimony when it conflicts with the non-party 9
witness’s prior statement. We thus VACATE the judgment of the 10
district court insofar as it granted in part Verizon’s motion for 11
summary judgment. 12
We remand for further proceedings consistent with this 13
opinion. 14
________ 15
16
JOSEPHINE A. GRECO (Duane D. Schoonmaker, on 17
the brief), Greco Trapp, PLLC, Buffalo, NY, for 18
Plaintiff-Appellant. 19
JAMES S. URBAN, Jones Day, Pittsburgh, PA, for 20
Defendant-Appellee. 21
________ 22
23

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4 Nos. 12-4688-cv, 13-0918-cv
JOHN M. WALKER, JR., Circuit Judge: 1
Cindy Moll (‚Moll‛) appeals from the decisions of the United 2
States District Court for the Western District of New York, William 3
M. Skretny, J., granting in part Verizon’s motion to dismiss and 4
motion for summary judgment, and denying Moll’s motion to 5
compel production of documents. 6
Moll alleges that Verizon discriminated against her, subjected 7
her to a sexually hostile work environment, retaliated against her for 8
complaints of discrimination and harassment, and paid her less than 9
her male colleagues for equal work. The district court concluded that 10
Moll premised her hostile work environment claim on only the 11
allegations that were sexually offensive. And because Moll did not 12
allege any ‚sexually offensive acts‛ within the applicable statute of 13
limitations, it dismissed her hostile work environment claims. The 14
district court erred when it refused to consider all allegations in the 15
Complaint in their totality, including those that were not sexually 16
offensive in nature. Sex-based hostile work environment claims may 17
be supported by facially sex-neutral incidents and ‚sexually 18
offensive‛ acts may be facially sex-neutral. See Alfano v. Costello, 294 19
F.3d 365, 375 (2d Cir. 2002). We therefore VACATE the judgment of 20

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5 Nos. 12-4688-cv, 13-0918-cv
the district court insofar as it granted in part Verizon’s motion to 1
dismiss. 2
We also find that the district court abused its discretion when 3
it denied Moll’s motion to compel documents related to Verizon’s 4
Reduction in Force events and, therefore, order the district court to 5
compel production of such documents. Accordingly, we VACATE 6
the judgment of the district court insofar as it granted in part 7
Verizon’s motion for summary judgment. 8
In addition, we conclude that the district court erred when it 9
refused to consider a witness’s statements in an affidavit that 10
contradicted prior deposition testimony. Although a party cannot 11
create a material issue of fact to defeat a motion for summary 12
judgment by simply contradicting his earlier testimony, the ‚sham 13
issue of fact‛ doctrine does not mandate that the court disregard a 14
non-party witness’s subsequent testimony when it conflicts with the 15
non-party witness’s prior statement. We thus VACATE the 16
judgment of the district court insofar as it granted in part Verizon’s 17
motion for summary judgment. 18
We remand for further proceedings consistent with this 19
opinion. 20

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6 Nos. 12-4688-cv, 13-0918-cv
BACKGROUND 1
Moll’s story begins in 1997 when Telesector Resources Group, 2
Inc.1 (‚Verizon‛) promoted her from clerical employee to System 3
Analyst/Sales Engineer in its Buffalo, New York office. Moll alleges 4
that beginning in 1998 she was subjected to sex-based disparate 5
treatment, a hostile work environment, and retaliation. 6
Moll alleges that in 1998 and 1999, Daniel Irving, a Senior 7
Systems Analyst, left Moll three inappropriate notes. And in 1999, 8
while they were on a business trip, Irving called her hotel room 9
repeatedly and asked her to come to his hotel room. After Irving 10
became her direct supervisor in March 2001, Moll alleges that he left 11
her a note that said he thought about her when he was taking a 12
shower. Moll also claims that Irving would not permit her to 13
communicate with him by email or telephone; she had to see him in 14
person. And Moll claims that throughout his tenure as her 15
supervisor, Irving refused to have her assessed for a promotion 16
claiming that there was a promotion freeze. However, two male 17
colleagues were promoted during this time period. 18
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.

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7 Nos. 12-4688-cv, 13-0918-cv
In March 2002, Irving placed Moll on a counseling plan based 1
on her job performance. That year Moll was the lowest paid Sales 2
Engineer in the Buffalo office. Moll occasionally worked at home, 3
usually when one of her children was sick. In May 2002, however, 4
Irving informed Moll that she could no longer work at home even 5
though, according to Moll, her male counterparts continued to do so. 6
Moll was denied a request to take vacation on July 5, 2002. Yet, Moll 7
alleges, male colleagues with less tenure were granted the same 8
vacation request. Moll also claims that she and other women in the 9
office were excluded from work-related social events, including 10
attending professional hockey games. 11
In January 2003, Christopher Gaglione became her supervisor. 12
In July 2003, Gaglione promoted Moll to Sales Engineer II. 13
On September 19, 2003, Moll filed a Charge of Discrimination 14
with the Equal Employment Opportunity Commission (‚EEOC‛) 15
alleging that she had been ‚subjected to different terms and 16
conditions of employment than similarly situated male employees‛ 17
and a ‚hostile work environment.‛ J.A. 67. Moll also complained 18
that she had been promoted ‚to a lower level position than similarly 19
situated males‛ and generally alleged retaliation after complaining 20

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8 Nos. 12-4688-cv, 13-0918-cv
to Verizon management of sexual discrimination and harassment. Id. 1
The EEOC issued a Notice of Right to Sue dated August 9, 2004. 2
On October 5, 2004, Moll filed a complaint with the district 3
court, alleging that she had been (i) subjected to gender-disparate 4
treatment; (ii) subjected to a sexually hostile work environment; 5
(iii) retaliated against; and (iv) paid less than male employees, in 6
violation of Title VII of the Civil Rights Act of 1964, § 102(a) of the 7
Civil Rights Act of 1991, the New York State Human Rights Law 8
(‚NYSHRL‛), and the Equal Pay Act (‚EPA‛). 9
In December 2004, Verizon transferred the Sales Engineers in 10
the Buffalo office to the Syracuse office, purportedly because the 11
company wanted all of the Sales Engineers to work out of the same 12
office as their supervisors. Moll alleged that this transfer was 13
retaliation for her lawsuit. Verizon offered Moll three options: 14
(1) transfer to Syracuse; (2) find a new job at Verizon; or (3) take a 15
severance package. Moll claims she had no choice but to transfer to 16
Syracuse because she could not find another job at Verizon and 17
Verizon refused to give her details regarding her severance package. 18
Moll was told that she must report to the Syracuse office when she 19
was not in customer meetings and that she could not work from 20

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9 Nos. 12-4688-cv, 13-0918-cv
home. Moll eventually took disability leave because of the 1
‚overwhelming stress and anxiety‛ she experienced. 2
On December 20, 2004, Verizon filed a motion to dismiss the 3
complaint under Federal Rule of Civil Procedure 12(b)(6), except for 4
a single purported incident of disparate treatment. In September 5
2005, the district court issued an order granting, in part, and 6
denying, in part, the motion. The district court, inter alia, dismissed 7
Moll’s claims of hostile work environment in violation of Title VII 8
and the NYSHRL on the basis that Moll failed to allege that any 9
sexually offensive conduct occurred within the applicable statute of 10
limitations and that therefore her hostile work environment claims 11
were time-barred. Moll v. Telesector Res. Grp., Inc., No. 04-cv-805S, 12
2005 WL 2405999, at *7, 12 (W.D.N.Y. Sept. 29, 2005). 13
In February 2006, Moll’s job was transferred to Buffalo and 14
Moll returned to work from disability leave. In February 2007, 15
Moll’s supervisor told her that there would be a Reduction in Force 16
(‚RIF‛) and that she would be terminated because her performance 17
was below the performance of her peers. Moll claims that no 18
documents or other evidence was offered to support her 19
supervisor’s conclusion that her performance was below par. On 20

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10 Nos. 12-4688-cv, 13-0918-cv
February 7, 2007, Moll was officially terminated. On April 17, 2008, 1
Moll filed an Amended Complaint in the district court adding the 2
allegations that her termination and her transfer to Syracuse were 3
retaliatory. 4
On August 13, 2010, Moll filed a motion to compel the 5
production of documents relating to her retaliation claim. One 6
request (No. 20) sought, among other things, ‚all documents of or 7
concerning a reduction in force on or about February of 2007.‛ 8
Verizon represented that it ‚performed a reasonable search and has 9
already produced all responsive documents, or has in its possession 10
no responsive documents.‛ The magistrate judge relied on this 11
representation and denied Moll’s request. Moll v. Telesector Res. Grp., 12
Inc., No. 04-cv-805S, 2010 WL 4642931, at *7 (W.D.N.Y. 2010). 13
A second request (No. 21), sought ‚all documents of or 14
concerning any position, including but not limited to sales engineer 15
a/k/a solutions engineer eliminated as a result of a reduction in force 16
in the Buffalo, Rochester, Syracuse, or Albany offices during the 17
period of January 2004 through the present.‛ The magistrate judge 18
denied this request on the basis that it was ‚irrelevant whether the 19
criteria utilized for a reduction in force preceding or following the 20

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11 Nos. 12-4688-cv, 13-0918-cv
reduction in force which terminated plaintiff was similar or distinct‛ 1
and denied the motion. Id. 2
A third request (No. 5), sought all personnel files of 3
employees who held the position of Sales Engineer in Buffalo, 4
Rochester, or Syracuse, which she argued may be used to support 5
her claim of sex discrimination as possible comparators. The 6
magistrate judge denied Moll’s request, finding ‚no basis for the 7
disclosure of confidential personnel records of employees in other 8
offices. Id. at *4. Following Moll’s objections, the district court 9
upheld this determination. 10
In September 2011, Verizon moved for summary judgment. 11
On May 30, 2012, the district court granted, in part, Verizon’s 12
motion for summary judgment and dismissed all claims except that 13
her promotion to the position of Sales Engineer II was 14
discriminatorily delayed. Moll v. Telesector Res. Grp., Inc., No. 04-cv- 15
805S, 2012 WL 1935087 (W.D.N.Y. May 30, 2012). Moll and Verizon 16
settled the discrete promotion-delay claim and entered into a 17
Stipulation of Dismissal. Moll appealed the district court’s 2005 18
ruling on Verizon’s motion to dismiss, its 2010 ruling on her motion 19

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12 Nos. 12-4688-cv, 13-0918-cv
to compel, and its 2012 ruling on Verizon’s motion for summary 1
judgment. 2
DISCUSSION 3
I. Motion to Dismiss: Hostile Work Environment Claims 4
We review a district court’s grant of a motion to dismiss de 5
novo. Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009). The 6
district court dismissed Moll’s hostile work environment claims 7
under Title VII and the NYSHRL, finding that Moll failed to allege 8
facts to support a claim within the applicable statute of limitations. 9
Moll argues that the district court improperly calculated the 10
NYSHRL statute of limitations. Moll also argues that events which 11
occurred prior to the statute of limitations are actionable under the 12
continuing violation exception. Finally, Moll argues that the district 13
court erred when it failed to consider acts that were not sexually 14
offensive in nature. 15
We conclude that the district court erred when it failed to 16
consider all allegations in the Complaint in their totality, including 17
those that were not sexually offensive in nature. 18
‚A hostile work environment exists under Title VII where ‚the 19
workplace is permeated with discriminatory intimidation, ridicule, 20

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13 Nos. 12-4688-cv, 13-0918-cv
and insult, that is sufficiently severe or pervasive to alter the 1
conditions of the victim’s employment and create an abusive 2
working environment.‛ Mack v. Otis Elevator Co., 326 F.3d 116, 122 3
(2d Cir. 2003) (internal quotation marks and alteration omitted), 4
abrogated on other grounds by Vance v. Ball State Univ., 133 S. Ct. 2434 5
(2013). ‚To decide whether the threshold has been reached, courts 6
examine the case-specific circumstances in their totality and evaluate 7
the severity, frequency, and degree of the abuse.‛ Alfano, 294 F.3d at 8
374 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). ‚Facially 9
[sex-]neutral incidents may be included . . . among the ‘totality of the 10
circumstances’ that courts consider in any hostile work environment 11
claim, so long as a reasonable fact-finder could conclude that they 12
were, in fact, based on sex.‛ Id. at 378; see also Raniola v. Bratton 243 13
F.3d 610, 622-23 (2d Cir. 2001); Howley v. Town of Stratford, 217 F.3d 14
141, 155-56 (2d Cir. 2000). 15
Moll’s Complaint includes both sexually overt and facially 16
sex-neutral incidents to allege a sex-based hostile work 17
environment. The district court should have considered all incidents 18
in their totality—including sex-neutral incidents—before it 19
dismissed Moll’s hostile work environment claims for failure to 20

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14 Nos. 12-4688-cv, 13-0918-cv
allege an actionable incident within the applicable statute of 1
limitations. 2
On appeal, Verizon argues for the first time that Moll’s hostile 3
work environment claims also fail because her allegations are not 4
sufficiently pervasive or severe to support an actionable claim. ‚*I+t 5
is a well-established general rule that an appellate court will not 6
consider an issue raised for the first time on appeal.‛ Greene v. United 7
States, 13 F.3d 577, 586 (2d Cir. 1994). While the rule is not an 8
absolute bar, id., we choose not to address the merits of Verizon’s 9
argument. 10
Accordingly, we vacate the district court’s decision to dismiss 11
Moll’s Title VII and NYSHRL hostile work environment claims and 12
remand for further proceedings. We leave consideration of Moll’s 13
other arguments to the district court in the first instance and we 14
express no views on the merits of Moll’s hostile work environment 15
claims. 16
II. Motion to Compel 17
We review a district court’s discovery rulings for abuse of 18
discretion. Wood v. FBI, 432 F.3d 78, 82 (2d Cir. 2005); see also In re 19
Sims, 534 F.3d 117, 132 (2d Cir. 2008) (explaining that the term of art 20

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15 Nos. 12-4688-cv, 13-0918-cv
‚abuse of discretion‛ includes errors of law, clearly erroneous 1
assessments of the evidence, or decisions ‚that cannot be located 2
within the range of permissible decisions‛ (internal quotation marks 3
omitted)). Moll argues that the relevance and materiality of her 4
request for documents relating to the February 2007 reduction in 5
force, previous and following reductions in force, and similarly- 6
situated Verizon employees is plain. We agree. The district court 7
erred by refusing to compel Verizon to provide the records Moll 8
requested in Request Nos. 5 and 21. While we are in no position to 9
second-guess Verizon’s representation that the documents Moll 10
sought in Request No. 20 do not exist, we note that the failure to 11
keep records of the reduction in force that resulted in Moll’s 12
termination may itself constitute evidence that the reduction in force 13
was pretextual. 14
‚Evidence relating to company-wide practices may reveal 15
patterns of discrimination against a group of employees, increasing 16
the likelihood that an employer’s offered explanation for an 17
employment decision regarding a particular individual masks a 18
discriminatory motive.‛ Hollander v. Am. Cyanamid Co. 895 F.2d 80, 19
84 (2d Cir. 1990). See also id. (concluding that discovery request that 20

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16 Nos. 12-4688-cv, 13-0918-cv
‚goes beyond the narrow confines of the [ ] facility in which 1
[plaintiff] worked . . . is relevant‛ to discrimination claim). This 2
same evidence may be used to detect retaliatory motives and 3
unequal pay. The district court’s refusal to compel Verizon to 4
produce the requested documents deprived Moll of the opportunity 5
to find evidence that might support her argument that Verizon’s 6
reasons for firing her were pretextual, that she was discriminated 7
based on her sex, or that she was paid unequally. 8
Accordingly, we vacate the order insofar as it denied Moll’s 9
motion to compel Request Nos. 5 and 21. We remand the case to the 10
district court with directions to compel Verizon to produce such 11
documents. 12
III. Motion for Summary Judgment 13
Because we reverse the district court’s order denying Moll’s 14
motion to compel, we vacate the summary judgment. If, following 15
discovery, Moll is unable to establish a genuine issue of material fact 16
suggesting Verizon discriminated or retaliated against her, the 17
district court is free to re-consider summary judgment for Verizon. 18
We note, however, that the district court erred when it 19
concluded that it ‚must disregard‛ Christopher Gaglione’s sworn 20

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17 Nos. 12-4688-cv, 13-0918-cv
statement that Moll’s transfer was motivated by retaliatory intent 1
because it contradicted his prior deposition testimony. Moll, 2012 2
WL 1935087, at *22. The district court was not required to disregard 3
Gaglione’s testimony. 4
In November 2005, when Gaglione was employed by Verizon, 5
he testified at his deposition that there was a valid reason for Moll’s 6
transfer to the Syracuse office—specifically, to centralize resources in 7
the office where Gaglione, their manager, was located. In November 8
2011, however, after Gaglione was fired from Verizon, he stated in a 9
declaration that ‚*t]he primary factor for [the] decision [to transfer 10
Moll] was an effort to retaliate against . . . [her] for [her] continuing 11
complaints of discrimination and retaliation.‛ He went on to say that 12
Verizon ‚justified this transfer with the pretext that all *System 13
Engineers+ . . . should work together.‛ The district court determined 14
that it ‚must disregard‛ Gaglione’s second statement ‚because it 15
contradicts his prior deposition testimony.‛ Id. We conclude that this 16
was error. 17
The ‚sham issue of fact‛ doctrine ‚prohibits a party from 18
defeating summary judgment simply by submitting an affidavit that 19
contradicts the party’s previous sworn testimony.‛ In re Fosamax 20

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18 Nos. 12-4688-cv, 13-0918-cv
Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013) (per curiam) 1
(emphasis supplied). See also Brown v. Henderson, 257 F.3d 246, 252 2
(2d Cir. 2001) (‚[F]actual allegations that might otherwise defeat a 3
motion for summary judgment will not be permitted to do so when 4
they are made for the first time in the plaintiff’s affidavit opposing 5
summary judgment and that affidavit contradicts her own prior 6
deposition testimony.‛); Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 7
619 (2d Cir. 1996) (‚*A+ party may not create an issue of fact by 8
submitting an affidavit in opposition to a summary judgment 9
motion that, by omission or addition, contradicts the affiant’s 10
previous deposition testimony.‛). The purpose of the doctrine is 11
clear: ‚[i]f a party who has been examined at length on deposition 12
could raise an issue of fact simply by submitting an affidavit 13
contradicting his own prior testimony, this would greatly diminish 14
the utility of summary judgment as a procedure for screening out 15
sham issues of fact.‛ Perma Research & Dev. Co. v. Singer Co., 410 F.2d 16
572, 578 (2d Cir. 1969). Thus, factual issues that a party creates by 17
filing an affidavit crafted to oppose a summary judgment motion 18
that contradicts that party’s prior testimony are not ‚genuine‛ issues 19
for trial. Id. 20

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19 Nos. 12-4688-cv, 13-0918-cv
Here, however, Gaglione was not a party to the action, nor did 1
he have a familial or other close relationship with the plaintiff that 2
suggests Moll could influence Gaglione’s testimony. Moreover, there 3
is nothing in the record to suggest that Gaglione submitted the 4
declaration solely to create a genuine issue of fact. Therefore the 5
district court was not required to disregard Gaglione’s second sworn 6
statement. 7
In certain circumstance we have held that sham issue of fact 8
doctrine applies to third-party witnesses, particularly expert 9
witnesses. See Fosamax, 707 F.3d at 193 (holding that the sham 10
affidavit doctrine applies to stop a party from manufacturing a 11
factual dispute by submitting testimony from an expert whom she 12
tendered); AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 13
F.3d 699, 736 (2d Cir. 2010) (holding that plaintiffs’ expert report that 14
contradicted plaintiff’s prior representations was insufficient to 15
defeat motion for summary judgment). But in doing so we explained 16
that a party cannot ‚manufactur*e+ a factual dispute by submitting 17
testimony from an expert whom she tendered‛ with contradictions 18
that are, inter alia, ‚unequivocal and inescapable,‛ and 19
‚unexplained.‛ Fosamax, 707 F.3d at 194. 20

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20 Nos. 12-4688-cv, 13-0918-cv
Apart from not being a party to the action, Gaglione was not 1
an expert nor was he retained in any way by the plaintiff.2 Nor are 2
we convinced that his affidavit ‚inescapably and unequivocally‛ 3
contradicted his earlier testimony without explanation. To the 4
contrary, there is a readily apparent, plausible explanation for any 5
inconsistency in his testimony: At the time of his earlier deposition 6
Gaglione was employed by Verizon; when he provided his 7
subsequent declaration Verizon had terminated him. The fact that 8
the later declaration was more favorable to Moll could be explained 9
in one of two ways: either he felt inhibited at the time of the first 10
deposition from portraying his employer in a bad light, or when he 11
issued his later declaration he wanted to get even with Verizon for 12
terminating him. Gaglione states in his later declaration that he 13
‚regret[s] that [he] failed to do more to complain about the 14
retaliatory nature of the plan‛ because he ‚was more concerned 15
about losing *his+ job.‛ It seems to us that the veracity of the witness 16
in these circumstances presents a quintessential question of fact for 17
the fact-finder. 18
2 Although the fact that Gaglione was a non-expert witness bears on
our decision here, we do not hold that non-expert third-party witnesses
can never be subject to the sham affidavit rule.

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21 Nos. 12-4688-cv, 13-0918-cv
Ordinarily, when a district court is asked to consider 1
contradictory deposition testimony of a fact witness at summary 2
judgment, ‚a district court may not discredit a witness’s deposition 3
testimony . . . because the assessment of a witness’s credibility is a 4
function reserved for the jury.‛ Fincher v. Depository Trust & Clearing 5
Corp., 604 F.3d 712, 725 (2d Cir. 2010). It was error for the district 6
court to categorically refuse to consider Gaglione’s subsequent 7
declaration; the sham issue doctrine does not go so far. If defendant 8
files a second motion for summary judgment, we direct the district 9
court to consider Gaglione’s second sworn statement in his 10
declaration. 11
CONCLUSION 12
For the reasons set forth above, we (1) vacate the district 13
court’s 2005 decision granting Verizon’s motion to dismiss Moll’s 14
hostile work environment claims; (2) vacate the district court’s 2010 15
ruling on Moll’s motion to compel Request Nos. 5 and 21; and (3) 16
vacate the district court’s 2012 decision granting in part Verizon’s 17
motion for summary judgment. We remand for further proceedings 18
consistent with this opinion. 19

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