In Bright v. Coca-Cola Refreshments USA, Inc., No. 14-4465-CV, 2015 WL 9261278 (2d Cir. Dec. 18, 2015), the Second Circuit affirmed the lower court’s decision granting summary judgment judgment, of plaintiffs’ race-based hostile work environment claims.
As to the merits, the Second Circuit incorporated the district court’s analysis and conclusion, adding that “[m]any of the comments and incidents complained of are inappropriate for the workplace, but do not appear to carry any racial connotation.”
It spent more time, however, addressing (and ultimately agreeing with) the district court’s refusal to consider on defendants’ motion plaintiffs’ new (post-deposition) affidavits which added allegations and incidents.
Generally, “a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony.” This is not an absolute rule. “For example, a subsequent affidavit may reveal a material issue of fact if the affidavit amplifies or explains, but does not merely contradict, [the] prior testimony.”
Here, the affidavits did not fall within this narrow exception:
[T]he new affidavits did not amplify prior testimony. These affidavits simply contradicted Plaintiffs’ previous answers squarely stating that they had provided a complete account of the incidents supporting their claims. Appellants argue that the district court effectively penalized poor recollection. But that argument is unavailing. Multiple deponents—not just one—added new allegations in the wake of CCR’s motion for summary judgment. Prior to this motion, not a single plaintiff sought to correct his or her deposition testimony with regard to new allegations. This was not a case where, after the motion for summary judgment, a few deponents came forward with a single, specific incident that they previously overlooked. Rather, they each added numerous incidents to his or her claims, many involving second-or third-hand reports of comments that in any event would constitute inadmissible hearsay. Indeed, Walker added no fewer than twelve additional incidents to support her hostile work environment claim. As the district court noted, the practice of adding new allegations only after the close of discovery and a motion for summary judgment “ ‘greatly diminish[es] the utility of summary judgment,’ “ A4136 (quoting Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)), and compromises the district court’s ability to identify genuine issues of fact.