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Second Circuit Reaffirms that Courts Cannot Make Credibility Determinations on Summary Judgment

Edgar M. Rivera, Esq.

On July 7, 2016, the Second Circuit ruled that the Southern District Court of New York erred in dismissing a plaintiff’s discrimination case by evaluating each piece of evidence in isolation, rather than viewing that evidence as a whole. In Walsh v. New York City Housing Authority, Rita Walsh claimed that the New York City Housing Authority (“NYCHA”) discriminated against her based on her gender by not hiring her as a bricklayer. The district court dismissed the action, concluding that no reasonable jury could find that NYCHA decided not to hire Walsh because of her sex. The Second Circuit vacated and remanded the decision and order.

Walsh supported her discrimination claim with three pieces of evidence: the NYCHA has never employed any woman as a bricklayer; Walsh was arguably more qualified than two of the successful candidates in the “main, if not primary, task” required of a bricklayer, tile work; and the NYCHA stated that it did not hire her because it was looking for someone “stronger,” without asking her any questions about her physical strength. The district court deemed each piece of evidence insufficient to create a triable issue of fact and granted the NYCHA’s motion for summary judgment. The Second Circuit found that the district court made several mistakes in its procedure.

First, the district court erred by concluding that the lack of female bricklayers “does not, by itself, compel a finding of discrimination” absent additional information pertaining to the quantity and quality of any previous female applicants. The Second Circuit acknowledged that the evidence would be more persuasive “coupled with data regarding previous female applicants”; however, the absence of such data did not automatically render the dearth of female bricklayers “irrelevant, not probative, or unfairly prejudicial.” As such, a finder of fact could have properly considered the dearth of female bricklayers as one component of its cumulative inquiry into whether Walsh’s gender motivated the NYCHA’s decision not to hire her.

Second, the district court erred by finding that Walsh failed to meet her burden of showing that her credentials were so “superior to the credentials of the person selected for the job that no reasonable person … could have chosen the candidate selected over the plaintiff for the job in question.” In actual fact, any discrepancy in qualification has probative value; it is only the above-described extreme discrepancy that creates a material issue of fact on its own. Again, the district court erred by considering this evidence independent from the rest of the record.

Finally, the district court abused its discretion by not considering an NYCHA employee’s statement that the NYCHA was looking for someone “stronger.” The district court ruled on its own that the statement was hearsay and therefore not admissible, without affording Walsh the opportunity to address the issue. The Second Circuit disagreed, holding that the statement was covered by an exemption to the hearsay rule.

The Second Circuit concluded its opinion with a warning to future district courts deciding discrimination cases: it is not a district court’s role to decide the credibility of evidence on summary judgment. Citing a prior decision, “To hold, as defendants ask us to do, that the nonmovant’s allegations of fact are (because “self-serving”) insufficient to fend off summary judgment would be to thrust the courts—at an inappropriate state—into an adjudication of the merits. Such a radical change in the courts’ role would be inappropriate not just in the discrimination context, but everywhere.”

Walsh v. New York City Housing Authority demonstrates that even some federal judges may misapply the law in discrimination cases. That is why all discrimination plaintiffs should have experienced counsel who will zealously advocate for their rights. If your employer has discriminated against you because of your sex or gender, please contact The Harman Firm, LLP.


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