Special Counsel David Van Pelt authored the California Lawyer article “On the ‘Knife’s Edge’: Appellate Guidance on Summary Judgment in Harassment Cases” discussing the impact of the recent Ahmed v. Astoria Bank ruling on workplace discrimination.
In the decision, an appellate judge ruled that the case fell on the “knife’s edge” of whether the alleged harassment was sufficient to defeat summary judgement. The court concluded that the evidence did create a triable issue of fact, and reversed a district court’s ruling in favor of the defendant.
“The court’s reasoning provides a useful reminder regarding the importance of carefully-tailored, and exhaustive, deposition questioning in these cases,” David wrote. “The plaintiff had testified at deposition that one of her supervisors used ‘hand gestures’ in connection with ‘anything she [had] to discuss’ with the plaintiff, but apparently was not questioned regarding the frequency of the gestures or the supervisor’s manner of speaking.”
Noting that a party’s declaration can be used to supplement an issue that was not “thoroughly or clearly explored” during a deposition, the Second Circuit ruled that the plaintiff’s assertion in her affidavit that the supervisor “continually used hand gestures to communicate” with her, and spoke “very slowly” while doing so, was consistent with her deposition testimony.