In Rodriguez v. County of Nassau, Nassau County Commission on Human Rights, 2020 WL 5948904 (2d Cir. Oct. 8, 2020) (Summary Order), the court, inter alia, affirmed the dismissal of plaintiff’s “failure to promote” gender discrimination claim.
Plaintiff argued that (1) the Commission Chair harbored discriminatory views, telling plaintiff during her interview for the position that, “I want a man for the position”, and (2) the male employee ultimately chosen for the position was less qualified than she was for the position.
During the first of two depositions, the plaintiff provided a response that, according to the court, “amounted to a denial that [the Commission Chair] commented on her gender during the interview.” Yet during her second deposition, plaintiff “testified for the first time that [the Commission Chair] specifically told her, in the interview, that he ‘want[ed] a man for the position'” and subsequently included that statement in her affidavit.
The court explained:
With respect to a reason for the discrepancy, Rodriguez has not offered any plausible explanation, only arguing that the district court should not make credibility determinations at the summary judgment stage. Unlike in Hayes, in which the plaintiff was incarcerated and unrepresented at the time of his first deposition, Rodriguez (a lawyer herself) was represented by counsel at both depositions. See Hayes, 84 F.3d at 620. She did not explain in her appellate brief, affidavit, or elsewhere, why, at her first deposition, she denied that Syed had commented on her gender. See Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (noting that the plaintiff was “given ample opportunity to explain or reconcile [her] inconsistent and contradictory statements, but no such explanation was provided”); Jeffreys v. City of New York, 426 F.3d 549, 555 n.2 (2d Cir. 2005) (“Jeffreys failed to explain away these obvious inconsistencies with any plausible explanation.” (quotation marks omitted)).
*3 In short, Rodriguez’s testimony contradicted her earlier denial that Syed made a gender-based comment. We have repeatedly ruled that, in such circumstances, a plaintiff who, previously in the litigation, has denied an essential fact cannot resuscitate that fact in defending against summary judgment by giving new testimony that asserts the previously denied fact. See Bentley, 935 F.3d at 88; see also Langman Fabrics, 160 F.3d at 112; Rojas, 660 F.3d at 105 (finding the district court properly rejected the plaintiff’s new allegations when the plaintiff (1) referred to an individual as a “co-worker” in her earlier sworn statements and in her complaints, yet described him as a supervisor in her papers opposing summary judgment, and (2) asserted in her opposition papers, contrary to her earlier testimony in a criminal trial, that she did not make any complaint about the individual’s sexual harassment); Jeffreys, 426 F.3d at 555 (affirming summary judgment against the plaintiff and disallowing the plaintiff’s assertions in his memorandum opposing summary judgment when they contradicted his three prior confessions as well as his statements at his guilty plea and sentencing); Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 470 (S.D.N.Y. 1998) (Sotomayor, J.) (granting summary judgment against plaintiff after concluding that “[f]rom the complaint, to plaintiff’s deposition, to his opposition papers to defendants’ summary judgment motion, plaintiff’s allegations of the events at issue are replete with inconsistent and contradictory statements”). The unexplained contradiction between Rodriguez’s first deposition and her subsequent deposition testimony and affidavit “transcend credibility concerns and go to the heart of whether the party has raised genuine issues of material fact to be decided by a jury.” Rojas, 660 F.3d at 106.
Beyond the statement Rodriguez attributed to Syed in her second deposition and affidavit, she submitted no evidence to the district court from which a rational jury could find that gender-based discrimination played a role in the County’s promotion of McRae instead of Rodriguez. Her assertion that she was better qualified than McRae was conclusory and was not substantiated by the evidence. In any event, even if she was better qualified than McRae, that alone would not show, as she must, that the reason for preferring McRae was gender discrimination.
Based on this the court concluded that plaintiff “failed to raise a genuine dispute of material fact with respect to whether the County’s decision not to promote her was based on gender discrimination” and affirmed the lower court’s grant of summary judgment on that claim.