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Posted: October 23, 2013

Attacks On Witness Credibility Do Not Create Questions Of Fact

In Dominick v. Hospitality Valuation Services, Inc., 11 CV 3452 (E.D.N.Y. Sept. 30, 2013), Judge Joanna Seybert denied the defendants’ motion for summary judgment in an action alleging pregnancy discrimination under the Pregnancy Discrimination Act of Title VII and under the New York State Human Rights law.

The plaintiff worked at a search firm specializing in the hospitality industry.  She was terminated from her job just two months after informing her employer that she was pregnant.  When she asked her boss whether her termination was related to her pregnancy, her employer responded, “don’t even go there.”  In support of their summary judgment motion, Defendants asserted that the termination was based on a client’s complaint and negative peer evaluations of the plaintiff’s performance.

The Court applied the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411. U.S. 792, 802-04 (1973), and held that there were questions of fact whether (1) plaintiff was terminated for poor performance, the defendants’ proffered non-discriminatory reason for discharge, and (2) plaintiff’s pregnancy motivated her discharge.  Remarks made by the defendants’ decision-makers in close proximity to the termination could have been viewed by a reasonable juror as discriminatory, but the Court noted that the temporal proximity between the disclosure of her pregnancy and her termination was not, by itself, sufficient to show pretext.

Judge Seybert’s discussion regarding the use of dueling 56.1 statements to manufacture of issues of fact should be of interest to practitioners.  Plaintiff’s Rule 56.1 Counterstatement attempted to contest facts “supported by Defendants with admissible evidence in the form of deposition testimony” on the ground that the deponents were not credible.  While acknowledging that a witness’s credibility is typically a fact question for the jury, the Court held that conclusory attacks on the credibility of witnesses will not, by themselves, create questions of material fact precluding summary judgment.

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