1 14-4465-cv Kishia Bright et al. v. Coca-Cola Refreshments USA, Inc. 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 , IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Co urthouse, 40 Foley Square, in the City of New York, on the 18 th day of December, two thousand fifteen.

Present: D EBRA A NN L IVINGSTON , G ERARD E. L YNCH , Circuit Judges , J ED S. R AKOFF , District Judge

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_____________________________________ K ISHIA B RIGHT , R AMON H ERNANDEZ , S EGUNDA L OPEZ , G UILLERMO N UNEZ , I SAAC O LABANJO , L UIS R ODRIGUEZ , J OSE S ANCHEZ , J OHNNY S MALL , J OHN T INDAL , D AVE V ILCEUS , S ANDRA W ALKER , D IANE W ORRELL , † Plaintiffs-Appellants , D AVID A LVAREZ , F RANKLIN A ULD , J AMES B ARNES , M ICHAEL M C C RAE , Plaintiffs , v. 14-4465-cv

C OCA -C OLA R EFRESHMENTS USA, I NC ., Defendant-Appellee

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* The Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. † The Clerk of Court is directed to amend the caption as set forth above.2 _____________________________________ For Plaintiffs-Appellants: H OWARD R. B IRNBACH , Esq., Great Neck, N.Y. For Defendant-Appellee: E LISE M. B LOOM , Mark D. Harris, Gregory I. Rasin, Jacquelyn Weisman, Stacey P. Eilbaum, Proskauer Rose LLP, New York, N.Y. Michelle A. Annese, Pr oskauer Rose LLP, Newark, N.J. Bradford G. Harvey, Da vid B. Kessler, Miller & Martin PLLC, Chattanooga, Tenn. UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiffs-Appellants Ramon Hernandez, Segunda Lopez, Guillermo Nunez, Isaac Olabanjo, Luis Rodriguez, Johnny Small, John Tindal, Dave Vilc eus, Sandra Walker, and Diane Worrell (together, “Appellants”) appeal from the amended judgm ent of the district court (Cogan, J. ) dated November 6, 2014, granting summary judgment and dismissing this employment discrimination case. 1 In separate orders dated July 21, 2013, September 13, 2013, November 21, 2013, December 6, 2013, and November 3, 2014, the district court granted summary judgment as to each Appellant in favor of Defendant-Appellee Coca-Cola Refreshments USA, Inc. (“CCR”). We assume the parties’ familiarity with the issues on appeal, which we describe here only as necessary to explain our decision to affirm.

I. Background Appellants are all curre nt and former employees of CCR, working in tw o facilities in New York: one in Elmsford, Westchester, and th e other in Maspeth, Queens. Each worked in

1 Of the sixteen Plaintiffs who brought the action, five stipulated to a dismissal with prejudice: on February 11, 2013, David Alvar ez; on November 8, 2013, Fra nklin Auld; on November 8, 2013, Jose Sanchez; on November 12, 2013, Mi chael McCrae; and, on November 21, 2013, James Barnes. Alvarez, Auld, and McCrae disc ontinued their actions, a nd Barnes and Sanchez ultimately settled. Kishia Bright joined the noti ce of appeal but declined to pursue the appeal.3 various capacities in the production and transporta tion departments in the two facilities. Each identifies as Hispanic, African American, or black. All except Nunez are union employees and are subject to a collective bargaining agreement between CCR and the Soft Drink Workers’ Union, Local 812, International Brotherhood of Teamsters. The Complaint alleges that an “endemic cu lture of racism” existed at CCR and that

Plaintiffs “suffered from the worst of its ills .” A182. Appellants brought claims of racial discrimination, hostile work environment, and retaliation under the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. (“SHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. (“CHRL”). 2

Each Plaintiff’s discrimination claim is distinct, citing par ticular incidents of alleged racial discrimination. Broadly, however, the inci dents can be characteri zed as involving alleged instances of disparate job assignments (such as receiving clean-up duty or more frequent assignments to certain “undesirable” machines ), failures to promote, disparate training opportunities, and disparate evaluation and disciplinary practices.

The hostile work environment claims are based on a number of comments or incidents

witnessed first- or second-hand by Appellants. These cited inci dents vary widely both in time and substance. Many of the comments and inci dents complained of are inappropriate for the workplace, but do not appear to carry any ra cial connotation. Others, however, are more serious, especially one 2011 incide nt involving a handwritten racial slur discovered in a men’s bathroom. Although CCR investigated the incident and took various remedi al actions, it never identified the culprit.

2 The case, originally filed in state court, was removed to federal court on January 18, 2012.4 Hernandez, Nunez, and Walker also bri ng retaliation claims under the SHRL and the

CHRL. Hernandez claims he suffered retalia tion on the basis of a complaint he made to a manager about the vacation-selection system and a complaint he made to the human resources department (“HR”) about a co-worker using a ra cial slur. Nunez claims that he suffered retaliation because he was the “ringleader” of this law suit. A690-91. Last, Walker claims she suffered retaliation for filing a claim with the Equal Employment Opportunity Commission and for making a complaint to HR.

II. Discussion

“We review a district court’ s grant of summary judgment de novo , construing the evidence in the light most favorable to th e non-moving party and drawing all reasonable

inferences in its favor.” Allianz Ins. Co. v. Lerner , 416 F.3d 109, 113 (2d Cir. 2005). A grant of summary judgment is proper only if there is no genuine issue as to any material fact in the record, and if the movant is entitled to judgmen t as a matter of law. Fed. R. Civ. P. 56(a). “An issue of fact is genuine ‘if the evidence is su ch that a reasonable jury could return a verdict for the nonmoving party.’” Roe v. City of Waterbury , 542 F.3d 31, 35 (2d Ci r. 2008) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). A mate rial fact is one that “might

affect the outcome of the suit under the governing law.” Id. After a close and rigorous review of this extensive record, we conclude that the district court did not err in its grants of summary judgme nt. We have reviewed each of the allegations and Appellants’ arguments on appeal, but find them to be without merit, for substantially the

same reasons outlined in the dist rict court’s detailed and well-re asoned orders granting summary judgment.5 One issue, which is a principal focus of Appe llants’ arguments on appeal, merits further discussion here—namely, that the district court erred in not c onsidering the new affidavits submitted by each plaintiff below to support the opposition to CCR’s motion for summary judgment. These affidavits, all from April and May 2013, add numer ous allegations and

incidents for the district court to consider. The di strict court determined that the affidavits were not properly considered, concluding that “Plainti ffs cannot testify in deposition that they have identified all of the facts underlying their clai ms, and then submit an affidavit in which they happen to recollect other key facts.” A4136. To th at end, the district c ourt did “not consider any facts that plaintiffs . . . added to their claims by affidavit in contradiction to their depositions.” Id.

It is “well-settled in this circuit that a party may not, in order to defeat a summary judgment motion, create a material issue of f act by submitting an affidavit disputing his own prior sworn testimony.” Trans-Orient Marine Corp. v. Star Trading & Marine, Inc. , 925 F.2d 566, 572-73 (2d Cir. 1991). The rule, of course, is not absolute. 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.” Rule v. Brine, Inc. , 85 F.3d 1002, 1011 (2d Cir. 1996). Here, the new affidavits did not amplify prior testimony. These affidavits simply contradicted Plaintiffs’ previous answers square ly stating that they had provided a complete account of the incidents supporting their claims . Appellants argue that the district court effectively penalized poor reco llection. 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 pl aintiff sought to correct his or her deposition6 testimony with regard to new allegations. This was not a case where, after the motion for summary judgment, a few deponents came forward w ith a single, specific incident that they previously overlooked. Rather, they each added nu merous incidents to his or her claims, many involving second- or third-hand reports of comments that in any event would constitute inadmissible hearsay. Indeed, Wa lker added no fewer than twelve additional incidents to support her hostile work environment claim. As the district court noted, th e practice of adding new allegations only after the cl ose of discovery and a motion fo r summary judgment “‘greatly diminish[es] the utility of su mmary judgment,’” A4136 (quoting Perma Research & Dev. Co. v. Singer Co. , 410 F.2d 572, 578 (2d Cir. 1969)), and compro mises the district court’s ability to identify genuine issues of fact.

III. Conclusion We have considered Appellants’ remaining argu ments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk