United States District Court, N.D. Alabama, Western Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Defendant's Motion for
Summary Judgment (Doc. # 83), Plaintiff's Motion to
Strike Declarations (Doc. # 91), and Defendant's
Objection and Motion to Exclude Sham Declarations (Doc. #
98). The motions are fully briefed and under submission.
(See Docs. # 93, 95, 100, 110, 111). After careful
review, and for the reasons explained below, Defendant's
motion for summary judgment is due to be granted.
Plaintiff's motion to strike is due to be denied.
Defendant's objection and motion to exclude is due to be
granted in part and denied in part.
Evidentiary Challenges to the Rule 56 Record
certain points in time, this case has been a voracious
consumer of judicial resources. Indeed, at one stage, the
court noted that discovery in this case has resembled a
dumpster fire.And, not surprisingly, Plaintiff and
Defendant both challenge significant portions of the record
presented by the opposing party. Plaintiff seeks to strike
the declarations of Kareema Abdul-Barr and Kelly Raymer.
(Doc. # 91 at 1). Defendant seeks to exclude declarations
from Plaintiff and Gina Pearson, one of Plaintiff's
former attorneys. (Doc. # 98 at 5-7). Defendant also requests
that the court not consider the summaries submitted by
Plaintiffs. (Doc. # 100 at 5).
The Court Will Excuse Any Procedural Improprieties in the
Parties' Evidentiary Challenges
and Defendant both raise procedural objections to the other
party's evidentiary challenges. Both Plaintiff and
Defendant argue that the other party used the wrong
procedural instrument to challenge the Rule 56 evidentiary
submissions. (Docs. # 93 at 2-3; 110 at 1-2). Moreover, both
parties contend that the other party's motion should be
stricken for failure to confer prior to filing. (Docs. # 93
at 3-4; 110 at 2).
parties' disagreement about the proper vehicle for
challenging Rule 56 evidence is rooted in different
approaches that federal courts take on this issue. Some
courts permit motions to strike that challenge evidence
submitted into the Rule 56 record because the Federal Rules
of Civil Procedure do not provide another means to contest
the evidence's sufficiency. See, e.g.,
Morris v. Precoat Metals, 2013 WL 830868, at *2
(N.D. Ala. Mar. 4, 2013) (explaining that a motion to strike
can be treated like a motion in limine). Other
courts allow a party to challenge Rule 56 evidence through a
motion to exclude. E.g., UCB, Inc. v. Teva
Pharm. USA, Inc., 2015 WL 11199058, at *9 (N.D.Ga. Mar.
18, 2015). Still other courts require a party to challenge
the opposition's factual assertion, rather than its
submitted evidence, on the ground that the factual assertion
“cannot be presented in a form that would be admissible
in evidence.” E.g., Norris v. GKN Westland
Aerospace, Inc., 2013 WL 440755, at *1 (M.D. Ala. Feb.
5, 2013) (quoting Fed.R.Civ.P. 56(c)(2)). Given the divergent
case law on this issue, the court finds it appropriate to
consider the merits of Plaintiff's motion to strike and
Defendant's motion to exclude. Cf. Stuckey v. Ala.
Bd. of Pardons & Paroles, 2012 WL 3670644, at *1 n.
2 (M.D. Ala. Aug. 27, 2012) (considering the substance of a
party's motions to strike even though “the form of
the motions is not grounded in a federal procedural
parties' failures to meet and confer before issuing their
evidentiary challenges do not present a basis for
disregarding their evidentiary challenges. Plaintiff did not
violate any meet and confer obligation, as Rule 37(c) does
not require her to meet and confer with Defendant before
seeking sanctions for the alleged non-disclosure of
witnesses. E.g., Greene v. Alan Waxler Grp.
Charter Servs., LLC, 2014 WL 1089667, at *2 n. 5 (D.
Nev. Mar. 18, 2014); Castro v. City of Mendota, 2012
WL 4344087, at *2 (E.D. Cal. Sept. 20, 2012). And, both
parties indicate that their evidentiary motions are opposed.
(Docs. # 91 at 1; 98 at 1). Therefore, the court will not
disregard either motion due to any failure to meet and
Admissibility of Plaintiff's Declaration
has submitted a 26 page declaration to supplement the
testimony she gave during her long deposition. (Doc. # 92-1).
Defendant insists that the entire declaration should be
excluded from the Rule 56 record because (1) certain
averments impermissibly contradict testimony Plaintiff gave
during her deposition, (2) other averments contain hearsay
statements, and (3) the rest of the declaration contains
ultimate legal conclusions, statements not based upon
personal knowledge, and/or irrelevant issues. (Doc. # 98 at
8-14). As explained in detail below, this request is due to
be granted in part and denied in part.
Purported Sham Declarations
court may determine that an affidavit is a sham when it
contradicts previous deposition testimony and the party
submitting the affidavit does not give any valid explanation
for the contradiction.” Latimer v. Roaring
Toyz, 601 F.3d 1224, 1237 (11th Cir. 2010). “When
a party has given clear answers to unambiguous questions
which negate the existence of any genuine issue of material
fact, that party cannot thereafter create such an issue with
an affidavit that merely contradicts, without explanation,
previously given clear testimony.” Van T. Junkins
& Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656,
657 (11th Cir. 1984). The court must apply the sham affidavit
doctrine sparingly, though, “because of the harsh
effect it may have on a party's case.” Allen v.
Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1316
(11th Cir. 2007) (quoting Rollins v. TechSouth, 833
F.2d 1525, 1530 (11th Cir. 1987)). For example, the court
should not use the sham affidavit doctrine to disregard a
declarant's testimony where the declarant expressed a
lack of certainty or recall during his or her deposition.
See Id. at 1316-17 (holding that plaintiffs'
written averments about uncompensated work time should not be
disregarded as shams where the plaintiffs expressed a lack of
certainty during depositions). Further, not every item that
could serve as the basis to impeach a party-witness with
earlier deposition testimony will lead to that
party-witness's testimony being struck. A slight
contradiction or an arguable contradiction is not enough. If
portions of an affidavit are inadmissible, the court will
disregard the inadmissible testimony and consider the
admissible testimony from that affidavit in analyzing the
summary judgment motion. Lee v. Nat'l Life Assur. Co.
of Canada, 632 F.2d 524, 529 (5th Cir. 1980).
paragraph 16 of Plaintiff's declaration does not
contradict her earlier deposition testimony. Plaintiff
testified during her deposition that members of the community
pharmacy team on which she worked were “asked to put
in” information about contacts with pharmacies based on
the pharmacy contacted, rather than the individual that the
liaison spoke with. (Doc. # 82-3 at 94-95). Plaintiff did not
specify when she was instructed to enter contact data under
the pharmacy account rather than the individual with whom she
had spoken. (See id.). Plaintiff's declaration
explained that she was never instructed to enter sales calls
under the pharmacy account before December 2013. (Doc. # 92-1
at 6). This averment clarifies when Plaintiff was instructed
to enter data under the pharmacy accounts and, thus, does not
contradict the testimony given during her deposition.
Accordingly, Defendant's request to exclude paragraph 16
of Plaintiff's declaration is due to be
there is no contradiction between Plaintiff's earlier
deposition testimony and paragraph 21 of her declaration.
Plaintiff has averred in her declaration that Candace Brown
maintained spreadsheets -- outside of the GSK 360 database
program -- to track the community pharmacy team's
progress toward the “Breo launch goal.” (Doc. #
92-1 at 7). During her deposition, she recounted Brown's
creation of the spreadsheets and her personal knowledge about
Brown's entry of data into those spreadsheets. (Doc. #
82-3 at 120-21). Because paragraph 21 of Plaintiff's
declaration merely expands upon testimony she gave during the
deposition, Defendant's request to exclude that paragraph
is due to be denied.
Plaintiff's testimony in paragraph 22 of the declaration
substantially differs from her testimony during the
deposition. During her deposition, Plaintiff professed
ignorance when asked if a third party could access her data
on the GSK 360 database:
is your knowledge -- you have knowledge as you sit here today
that the system allows others to change data?
PEARSON: Object to the form.
I can say is that data I entered disappeared.
ma'am. And if you entered the data, you would agree with
me that there would be some evidence that it had been
entered, wouldn't there?
PEARSON: Object to the form.
sir. In theory, yes. There were problems with GSK 360. I
don't know if -- I don't know the access into GSK 360
beyond my role as a community pharmacy liaison.
knew what I was taught to do to enter the data, but how it
could be manipulated by a third-party, I don't know.
have no clue as you sit here today about whether a
third-party can manipulate your data at all, do you?
PEARSON: Object to the form.
don't know -- I don't know how that would work.
83-2 at 115-16). Quite to the contrary, Plaintiff's
declaration asserts that Candace Brown was able to access GSK
360 account data. “In order to obtain information to
populate her spreadsheets, Ms. Brown gained access to each
team member['s] GSK 360 account data. Prior to Ms. Brown
accessing my GSK 360 account, none of my data disappeared and
I had no problems using the account.” (Doc. # 92-1 at
8). So, while Plaintiff previously testified during her
deposition that she only knew about her own access to GSK 360
data, she has now averred in her declaration that Brown
gained access to her GSK 360 data to populate the
spreadsheets she had created. Thus, Plaintiff's
subsequent affidavit testimony sharply contradicted her
earlier deposition, yet Plaintiff has not offered any
explanation for her new-found knowledge. (See Doc. #
110 at 4-5) (explaining that Plaintiff's testimony
regarding her suspicions of Brown's access to GSK 360
data is relevant to her good faith belief that Gina Chaney
sought to sabotage her). Due to the unexplained contradiction
between Plaintiff's deposition testimony and the
declaration, paragraph 22 of the declaration is due to be
excluded from the Rule 56 record.
averments in paragraph 51 of the declaration do not
contradict her sworn deposition testimony. Plaintiff states
in her declaration that (a) a record of failing to meet
deadlines could have ruined her pharmaceutical sales career,
and (b) Defendant's employees never informed her that she
would receive her territory back after the delegations made
during the Breo launch period. (Doc. # 92-1 at 16). During
Plaintiff's deposition, she affirmed that Gina Chaney had
made a “temporary” assignment of certain pharmacy
accounts. (Doc. # 82-3 at 150). But, Plaintiff denied having
any knowledge of whether Chaney would assign the pharmacies
back to her after the Breo launch:
Q. You were going to get [those accounts] back once the goal
A. I don't know that was true.
(Id.). Certainly, a jury could consider the
discrepancy in Plaintiff's deposition testimony as
evidence weighing against her credibility. However, paragraph
51 of the declaration sufficiently aligns with her denial of
knowledge that she would be reassigned the pharmacies, and
Defendant's request to exclude that paragraph is due to
Recollections of Statements Made by Defendant's
objects to what it contends are hearsay statements provided
in several paragraphs of Plaintiff's declaration. (Doc. #
98 at 12). Plaintiff responds that the statements in her
declaration can be reduced to admissible form, but does not
explain how she intends to do so. (Doc. # 110 at 3-4).
Although Plaintiff does not refer to this issue in her
response brief, Defendant's hearsay objections mainly
relate to statements from her supervisor, Chaney, her
co-workers Tresa Darr Johnson and Candace Brown, and other
employees of Glaxosmithkline. (See Doc. # 98 at 12)
(objecting to declarations about statements from Gina Chaney,
Sherida Dorsey-Pete, Tresa Darr Johnson, Danielle Fedor,
Carolyn Harris, and Candace Brown). Almost all of these
statements concern the employee's own feelings or mental
impressions, and almost all of them occurred during work
activities. (See, e.g. Doc. # 92-1 at 12)
(recounting Chaney's admonishments to the community
pharmacy team after a meeting with Chaney's supervisor).
To the extent Plaintiff's declarations contain statements
from Defendant's employees with double hearsay, the
statements reflect conversations between Defendant's
employees within the scope of their duties. (See,
e.g., Doc. # 92-1 at 8) (recounting Johnson's
conversation with Chaney about GSK 360 remedial training).
The court finds that Plaintiff's declarations in
Paragraphs 13, 25, 26, 29-31, 35-37, 46, 50, 52, and 65 are
admissible as statements by Defendant's agents on matters
within the scope of their employment. Fed.R.Evid.
801(d)(2)(D). Moreover, Plaintiff's declaration that
Brown derisively called her “Paula Deen” is not
hearsay because the statement is being offered to show its
effect on Plaintiff, rather than the truth of the matter
asserted. (Doc. # 92-1 at 23). See also Fed. R.
Evid. 801(c); Macuba v. Deboer, 193 F.3d 1316,
1323-24 & n. 15 (11th Cir. 1999) (citing an advisory
committee's note for the proposition that a statement is
not hearsay if its significance “lies solely in the
fact that it was made”).
Testimony Based on Belief and Speculation
to Defendant, several paragraphs in Plaintiff's
declaration are due to be stricken because she has testified
about matters based on her beliefs and speculations. (Doc. #
98 at 13). It is well settled that testimony based on an
individual's belief or speculation is not competent
summary judgment evidence because such testimony is not based
on personal knowledge. E.g., Pace v.
Capobianco, 283 F.3d 1275, 1278-79 (11th Cir. 2002)
(rejecting a district court's reliance on an
affiant's statement that he believed a particular fact);
Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st
Cir. 2001) (“Of course, the requisite personal
knowledge must concern facts as opposed to conclusions,
assumptions, or surmise.”); Stagman v. Ryan,
176 F.3d 986, 995 (7th Cir. 1999) (“[S]tatements
outside the affiant's personal knowledge or statements
that are the result of speculation or conjecture or merely
conclusory do not meet this [personal knowledge]
requirement.”); Jones v. UPS Ground Freight,
683 F.3d 1283, 1301 n. 46 (11th Cir. 2012) (noting that an
affiant's assumptions are not admissible under Rule
56(e)). Some of Defendant's personal knowledge objections
are well taken; others are meritless.
paragraph 21 of the declaration, Plaintiff states that
Candace Brown created tracking spreadsheets outside of the
GSK 360 database. (Doc. # 92-1 at 7). She has not averred
that she believes Brown created and managed the spreadsheets.
(See id.). Indeed, Brown herself has testified that
she assisted Chaney “by monitoring progress on the
spreadsheets as well as the GSK 360 call activity.”
(Doc. # 83-43 at 4). Defendant has not shown that paragraph
21 of Plaintiff's declaration should be excluded.
paragraph 27, Plaintiff avers, “I believe Ms. Brown
used the access Ms. Chaney allowed her to delete most of my
work since the Breo launch period began approximately one
month prior.” (Doc. # 92-1 at 9). This declaration
plainly relies on Plaintiff's beliefs and, thus, is
inadmissible at the summary judgment stage. Jones,
683 F.3d at 1301 n. 46; Pace, 283 F.3d at 1278-79.
50 and 51 of Plaintiff's declaration present a few
inadmissible statements, along with admissible recollections
of Chaney's actions in January 2014 and the lack of
communication between Plaintiff and Defendant's employees
about those actions. Plaintiff has asserted her
“understanding” that (a) Chaney sought to
undermine Plaintiff's professional reputation by
reassigning duties to other team members, and (b) the team
members “called their take over of my territory
‘Operation Alabama.'” (Doc. # 92-1 at 16).
Testimony based on a witness's understanding is
comparable to belief testimony and inadmissible under Rule
56. E.g., Cermetek, Inc. v. Butler Avpak,
Inc., 573 F.2d 1370, 1377 (9th Cir. 1978) (explaining
that a witness's testimony based on understanding was
insufficient to show that the witness could present competent
testimony at trial); Rolison v. Sterling, 2009 WL
2514294, at *5-6 (S.D. Ala. Aug. 13, 2009) (striking an
averment that began with a qualifying phrase based on the
affiant's understanding). Defendant's request to
exclude these statements in paragraph 50 is due to be
granted. But, its request to exclude the entirety of
paragraphs 50 and 51 is due to be denied.
objections to Plaintiff's testimony about alleged
“ultimate legal conclusions” are misplaced. (Doc.
# 98 at 13-14). Lay witnesses may offer opinion testimony on
the ultimate issue of a case if the testimony is based on
personal observations. Carter v. DecisionOne Corp.
Through C.T. Corp. Sys., 122 F.3d 997, 1005 (11th Cir.
1997). Plaintiff's averment that Harriss harassed her was
based on her personal observations from phone calls.
(See Doc. # 92-1 at 21). Likewise, her assertion
that no reasonable person could have continued to work for
Defendant under the conditions she faced was based on her
personal observations about her work conditions.
(Id. at 22). Therefore, both opinions are
admissible, at least at this stage. See Carter, 122
F.3d at 1005 (explaining that Federal Rule of Evidence 704
abolished the prohibition on admitting lay opinion testimony
about ultimate issues).
Admissibility of Gina Pearson's Declaration
argues that the court should exclude Pearson's
declaration because (1) she submitted the declaration while
representing Plaintiff as counsel, and (2) the declaration
contains hearsay evidence from witnesses who declined to
submit declarations on Plaintiff's behalf. (Doc. # 98 at
7, 14-15). Defendant's first argument misses the mark for
excluding the declaration from the Rule 56 record. If Pearson
was a necessary witness in this case, she would likely be
disqualified from representing Plaintiff as counsel.
See Ala. R. Prof. Conduct 3.7(a). But, she would not
be disqualified from presenting the necessary evidence at
trial. In any event, Pearson no longer represents Plaintiff.
The court will not exclude Pearson's declaration on this
second argument, though, hits the target. Pearson's
declaration narrates her communications with three of
Plaintiff's former co-workers. (See Doc. # 108-1
at 2-16). She states that the co-workers “were
initially cooperative, engaging, and expressed a desire to
willingly sign a declaration, ” but her communications
with them “suddenly” ended at the same time and
none of them signed a declaration on Plaintiff's behalf.
(Id. at 16). Pearson has attached copies of her
e-mail correspondence with the potential witnesses, purported
drafts of a complaint letter against Chaney, and purported
drafts of declarations to be signed by the potential
witnesses. (See Id. at 18-99). By and large,
Pearson's declaration presents inadmissible hearsay
evidence and unauthenticated evidence, including a complaint
letter with no signature from the purported drafter and
declarations with no signatures from the declarants. In
essence, Pearson is declaring that if certain
witnesses testified in this case, based upon her discussions
with them, she believes they would testify to “x, y,
and z.” Of course, the Seventh Circuit has cautioned
that the submission of affidavits by counsel is “a
tactic fraught with peril.” Cf. Friedel v. City of
Madison, 832 F.2d 965, 970 (7th Cir. 1987).
Defendant's request to exclude Pearson's declaration
is due to be granted, as all relevant evidence in that
declaration is inadmissible hearsay.
Admissibility of Kareema Abdul-Barr's and Kelly
contends that the court should strike Abdul-Barr's and
Raymer's declarations because Defendant did not disclose
these witnesses in its initial disclosures, supplemental
disclosures, or interrogatory answers. (Doc. # 91). Defendant
responds that (1) Plaintiff identified Abdul-Barr as a
witness in her supplemental disclosures, (2) Plaintiff stated
that Raymer was a member of the community pharmacy team
during her deposition, (3) their declarations constituted
protected work product until Defendant filed them in support
of its summary judgment motion, and (4) Plaintiff will not be
prejudiced by the court's consideration of the
declarations because she chose to not depose these witnesses.
(Doc. # 93).
Federal Rules of Civil Procedure generally require a party to
disclose the names of individuals likely to have discoverable
information that will be used to support a claim or defense.
Fed.R.Civ.P. 26(a)(1)(A). This initial disclosure must be
supplemented in a timely manner if the initial disclosure was
materially incomplete “and if the additional or
corrective information has not otherwise been made known to
the other parties during the discovery process.”
Id. 26(e)(1)(A). Rule 37 prohibits a party from
using a witness's testimony to support a motion if it has
failed to identify that witness in accordance with Rule 26,
unless the failure to disclose was substantially justified or
harmless. Id. 37(c)(1).
objection to Abdul-Barr's affidavit is plainly meritless.
Defendant disclosed in its amended initial disclosures that
the witnesses identified in Plaintiff's initial
disclosures might be used to support its defenses, as well as
witnesses identified during the course of discovery. (Doc. #
91-2 at 1, 3). Plaintiff disclosed in her second amended set
of initial disclosures (issued after Defendant had sent its
amended initial disclosures) that Abdul-Barr was a potential
witness with information about “Ms. Chaney's
interactions with team members.” (Doc. # 93-1 at 7).
Moreover, Defendant asserted in a July 2016 interrogatory
response that Abdul-Barr had worked under Chaney's
supervision. (Doc. # 93-2 at 6-7). Thus, Plaintiff had at
least two months to arrange a deposition or compel other
discovery from Abdul-Barr if she desired to do so. As
Defendant informed Plaintiff that her witnesses might have
information that would be used to support its defenses, and
Plaintiff identified Abdul-Barr as a possible witness,
Defendant did not violate Rule 37(c)(1) by submitting
Defendant did not violate Rule 37(c)(1) by submitting
Raymer's affidavit. Of course, the better practice in
discovery is to disclose the names of all potential witnesses
in a party's disclosures or supplements to initial
disclosures. Having said that, Raymer was identified as an
employee in the community pharmacy team in the July 2016
interrogatory responses. (Id. at 6-8). This
statement, provided a few months before the end of discovery,
put Plaintiff on notice that Raymer could have information
about Chaney's interactions with the team to support
Defendant's defenses. See Shackelford v. Publix Super
Markets, Inc., 2014 WL 5148461, at *6 (N.D. Ala. Oct.
14, 2014) (finding that a plaintiff had disclosed witnesses
used at the summary judgment stage when she identified them
during a deposition). And, arguably, such notice was
unnecessary here because in her deposition Plaintiff herself