16

‐ 1389

‐ cv

Ahmed v. Astoria Bank

UNITED STATES COURT OF APPEALS

FOR THE SECOND 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

DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING

TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second 1

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2

Square, in the City of New York, on the 9 th day of May, two thousand seventeen. 3

4

PRESENT: JOHN M. WALKER, JR., 5

GERARD E. LYNCH, 6

RAYMOND J. LOHIER, JR., 7

Circuit Judges

. 8

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐ 9

SHERIN AHMED, 10

11 Plaintiff

‐ Appellant

, 12

13

v. No. 16

‐ 1389

‐ cv 14

15

ASTORIA BANK, FKA ASTORIA FEDERAL SAVINGS 16

AND LOAN ASSOCIATION, 17

18 Defendant–Appellee

, 19

20

MAUREEN RUSSO, individually and in her 21

official capacity and as aider and abettor, 22

23 Defendant. 24

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26

272 FOR APPELLANT: F RED R. P ROFETA

, J R

., Profeta & 1

Eisenstein, New York, NY. 2

3

FOR APPELLEE : M ARK S. M ANCHER (Kimberly N. 4

Dobson, on the brief ), Jackson Lewis 5

P.C., Melville, NY. 6

7

Appeal from a judgment of the United States District Court for the Eastern 8

District of New York (Jack B. Weinstein, Judge ). 9

UPON DUE CONSIDERATION, it is HEREBY ORDERED, ADJUDGED, 10

AND DECREED that the judgment of the District Court is VACATED and the 11

case is REMANDED for further proceedings. 12

Plaintiff Sherin Ahmed appeals from a judgment of the District Court 13

(Weinstein, J.) granting summary judgment in favor of defendants Astoria Bank 14

and Maureen Russo. In this appeal, Ahmed challenges only the dismissal of her 15

hostile work environment claim against Astoria Bank under Title VII of the Civil 16

Rights Act of 1964, 42 U.S.C. § 2000e et seq. Ahmed argues that she adduced 17

sufficient evidence from which a reasonable jury could find that she was 18

subjected to a hostile work environment because she is Egyptian and Muslim. 19

We assume the parties’ familiarity with the facts and record of the prior 20

proceedings, to which we refer only as necessary to explain our decision to vacate 21

and remand. 223 As a threshold issue, Astoria Bank argues that Ahmed’s affirmation, 1

submitted in opposition to Astoria Bank’s motion for summary judgment, should 2

not be considered because it contradicts Ahmed’s prior deposition testimony. In 3

particular, Astoria Bank contends that (1) Ahmed testified to only two instances 4

in which a senior supervisor at Astoria Bank, Anthony Figeroux, made comments 5

about Ahmed’s hijab, while her affirmation states that Figeroux “constantly told 6

[her] to remove [her] hijab,” and (2) Ahmed testified that Russo used hand 7

gestures when speaking to Ahmed in everyday conversation but did not describe 8

the frequency of the conduct, while her affirmation states that Russo “continually 9

used gestures to communicate” with Ahmed and also spoke to her “very 10

slow[ly].” We disagree. 11

“The ‘sham issue of fact’ doctrine prohibits a party from defeating 12

summary judgment simply by submitting an affirmation that contradicts the 13

party’s previous sworn testimony.” Moll v. Telesector Res. Grp., Inc., 760 F.3d 14

198, 205 (2d Cir. 2014) (quotation marks and emphasis omitted). But the doctrine 15

does not apply where, as here, the statements in the deposition do not contradict 16

the affirmation, or where the affirmation addresses an issue that was not 174 “thoroughly or clearly explored” during the deposition. In re World Trade Ctr. 1

Lower Manhattan Disaster Site Litig., 758 F.3d 202, 213 (2d Cir. 2014). 2

Ahmed’s deposition testimony about Figeroux concerned Figeroux’s 3

conduct at another bank prior to Ahmed’s tenure at Astoria Bank. That 4

testimony does not contradict Ahmed’s statements that Figeroux “constantly” 5

commented on her hijab and made several other offensive comments while she 6

worked at Astoria Bank. As for Russo, Ahmed testified, consistent with her 7

affirmation, that Russo used her hands for “anything she [had] to discuss” with 8

Ahmed and that Russo used gestures “during her conversation[s] with” Ahmed

. 9

Accordingly, Ahmed’s affirmation was properly before the District Court on 10

summary judgment. 11

We turn next to the grant of summary judgment. As the District Court 12

itself recognized, the evidence in this case is “right on the knife’s edge of either 13

granting [summary judgment] or allowing [the case] to go to the jury.” Viewing 14

the evidence in the light most favorable to Ahmed, we conclude that a reasonable 15

jury could find that Ahmed was subjected to discriminatory harassment that was 16

“sufficiently severe or pervasive to alter the conditions of [her] employment and 17

create an abusive working environment, and that a specific basis exists for 185 imputing the objectionable conduct to [Astoria Bank].” Tolbert v. Smith, 790 1

F.3d 427, 439 (2d Cir. 2015) (quotation marks omitted). There was admissible 2

evidence that Figeroux (1) “constantly” told Ahmed to remove her hijab, which 3

he referred to as a “rag,” (2) demeaned Ahmed’s race, ethnicity, and religion “[o]n 4

several occasions,” and (3) made a comment during Ahmed’s interview on 5

September 11, 2013 that Ahmed and two other Muslim employees were 6

“suspicious” and that he was thankful he was “in the other side of the building in 7

case you guys do anything.” This evidence, together with the evidence of 8

Russo’s comments and conduct as Ahmed’s supervisor, could lead a reasonable 9

jury to find that Ahmed was subjected to “a steady barrage of opprobrious racial” 10

and anti

‐ Muslim comments and conduct constituting a hostile work 11

environment. Id. (quotation marks omitted). 12

For the foregoing reasons, the judgment of the District Court is VACATED 13

and the case is REMANDED for further proceedings. 14

FOR THE COURT: 15

Catherine O’Hagan Wolfe, Clerk of Court 16