District Court Improperly Excluded Co-Worker’s Affidavit in Granting Summary Judgment to Employer on Sex Discrimination Claim

In a published opinion in Furcron v. Mail Centers Plus, LLC, 2016 WL 7321211 (Dec. 16, 2016), the Eleventh Circuit reversed the district court’s grant of summary judgment to the defendant on the plaintiff’s sex discrimination claim and affirmed the district court’s grant of summary judgment to the defendant on the plaintiff’s retaliation claim. On the sex discrimination claim, the court remanded the case after finding the exclusion of certain evidence to be an abuse of discretion.

The plaintiff brought a sex discrimination claim against her employer for creating a hostile work environment. Her complaint was with a co-worker who suffered from Asperger’s and was often inappropriate and awkward in the workplace. The plaintiff often felt uncomfortable because the co-worker invaded her personal space, stared down her shirt and at her breasts and buttocks, and rubbed up against her with an erect penis. The plaintiff took a picture of the co-worker with an erection to support a complaint to her supervisor and showed the picture to supervisors as well as co-workers.

The Eleventh Circuit reviewed for abuse of discretion the district court’s decision to exclude two pieces of evidence. The district court excluded the first piece of evidence, a declaration by the plaintiff, as violating the “sham affidavit” rule, explaining that it contradicted the plaintiff’s deposition. The “sham affidavit” rule applies when a contradiction is created for the purpose of creating a genuine issue of material fact where none existed before. It is not used to exclude evidence lacking credibility. The district court found two contradictions which led it to apply the “sham affidavit” rule. First, the plaintiff’s declaration stated that the co-worker bumped against her “frequently,” while she had stated in her deposition that he bumped against her “maybe twice a week” when they had worked together for six days. Second, the plaintiff’s declaration stated that he rubbed against her with an erection while she had stated in her deposition that his lower body never touched her. While the Eleventh Circuit stated that the district court stretched the “sham affidavit” rule, doing so was not an abuse of discretion.

The second piece of evidence the district court excluded was a declaration by another co-worker of the plaintiff. Though the defendant had argued for the exclusion of the evidence for untimeliness, the district court excluded it on the alternative ground that it was “largely immaterial.” Because the district court did not clearly state what standards it was applying, the Eleventh Circuit looked for any reasonable view to support the court’s holding. The declaration of the other co-worker stated that she said the offending co-worker had looked at her breasts and rear as well, rubbed up against her, that the plaintiff had made a sexual harassment complaint, and that the plaintiff told the other co-worker that she took a picture of the offending co-worker to support her sexual harassment claim. Analyzing this evidence under Rules 401, 403, and 404(b), the court held that it was permissive “me too” evidence that tends to make it more likely that the plaintiff suffered harassment based on her sex. The exclusion of the evidence was not harmless, so the court remanded the sex discrimination claim for the district court to consider this evidence in ruling again on the defendant’s motion for summary judgment.

Regarding the retaliation claim, the district court held that the plaintiff failed to meet the first element of the prima facie case, that she was engaged in statutorily protected activity, by failing to show that she had adequately communicated sexual harassment to her supervisors. The Eleventh Circuit disagreed with the defendant’s argument on appeal that the plaintiff had failed to put it on notice of sexual harassment, because the evidence demonstrated that she showed a photograph to her supervisor of the co-worker’s erection, expressed fear of bending down and lifting things, and expressed discomfort at the co-worker’s constant erections. The Eleventh Circuit continued by analyzing the defendant’s articulation of three legitimate non-discriminatory reasons for terminating the plaintiff. The defendant explained that it terminated the plaintiff because she showed her co-workers a picture of another co-worker’s crotch against the company policy, she continued to show the picture after being instructed not to, and she discussed the confidential matter with one of the defendant’s major clients. The court held that these sufficiently rebutted the presumption of discrimination established by a showing of the prima facie case and finding no evidence proffered by the plaintiff to show that the reasons were pretext, affirmed the grant of summary judgment to the defendant on the retaliation claim.

Posted by Keith Emanuel.

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