Seyfarth Synopsis: In affirming summary judgment in favor of AutoZone, the Second Circuit rules that a sales associate did not provide enough evidence to satisfy her burden of proof for sex discrimination, retaliation and hostile work environment. This decision is significant because the court agreed that it was proper for a judge to exclude the former employee’s flawed deposition testimony as evidence.

Can an employer terminate someone for making crude comments made to a co-worker? In the Second Circuit thankfully the answer is still “Yes.” In Bentley v. AutoZoners, LLC, AutoZone Northeast, LLC, Case No. 18-2441, the Second Circuit affirmed the district court’s grant of summary judgment against a former AutoZone employee’s state law claims of sex discrimination, retaliation, and hostile work environment.

The plaintiff worked as a sales associate and was fired after an investigation revealed that she had made very crude comments to another employee. There was no dispute over the comments she made, which were against company policy. She had also claimed that the employee she made the crude comments to had sexually harassed her and also that he was her supervisor. Both she and the co-worker were terminated. The court rejected the argument that he was her supervisor, eliminating the claim that AutoZone had vicarious liability for his actions. In a summary judgment motion, Bentley argued that her deposition testimony created a dispute of facts that should be tried in court.

The district court judge granted summary judgment in favor of AutoZone on the grounds that her deposition testimony was so contradictory and flawed that it essentially could not be used for evidence to dispute facts and that absent the deposition, she could not meet her burden to show discrimination.

The Second Circuit affirmed the lower court’s decision and held that all of plaintiff’s claims failed on the merits, and that her deposition testimony could not be used as evidence to create a factual dispute. The Second Circuit also held that Bentley’s claims failed because she could not demonstrate that her firing was pretextual, she could not show a hostile work environment because the employee who made the comments to her was not a “supervisor” and there was no evidence that the employer knew about these comments before its investigation one month before her firing and following the investigation they promptly fired the employee who made the comments to her. The court also found that plaintiff’s deposition testimony could not be used as evidence that AutoZone knew about sexist comments being made to her before its investigation because it was too contradictory and inconsistent.

Here are some key takeaways from this case:

  • In the Second Circuit, deposition testimony that is contradictory and inconsistent can be excluded as evidence in considering summary judgment.
  • Proving pretext requires more than just questioning the timing of a discharge or the severity of the misconduct that warranted the discharge.
  • The burden for what qualifies as a “supervisor” is much higher than directing an employee’s work. That person must have the ability to make tangible employment actions against an employee.