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Summy-Long v. Pennsylvania State University

March 26, 2009


The opinion of the court was delivered by: Chief Judge Kane


Defendants filed a motion for partial summary judgment (Doc. No. 41) seeking to dismiss a portion of Plaintiff's claims as barred by the statute of limitations. In response to the motion for summary judgment, Plaintiff filed a brief in opposition (Doc. No. 58) and an affidavit (Doc. No. 60, at 2-17) in support of her contentions. Defendants then filed a motion to strike the affidavit (Doc. No. 70) and a motion for leave to file their own supplemental affidavits (Doc. No. 71.) This memorandum will address the motion to strike and motion to file supplemental affidavits so that the Court may then proceed to analyze the pending summary judgment motion. BACKGROUND

Plaintiff Joan Summy-Long filed a complaint in this Court June 2, 2006 alleging employment discrimination dating back to her original date of hire in 1978. (Doc. No. 1.) In an order dated November 30, 2007, the Court granted a motion to bifurcate discovery and dispositive motions. (Doc. No. 24.) Pursuant to that ruling, Defendants filed a motion for summary judgment addressing only the issue of the statute of limitations. (Doc. No. 41.) Defendants argue that Plaintiff is limited in the claims for which she can recover to those discriminatory decisions occurring in June 2003 and forward, depending on the particular statute.

Plaintiff, on the other hand, argues that the discovery rule and/or equitable tolling allow her to recover in this action for discriminatory decisions that occurred over 20 years ago. She supports this argument with numerous pages of documents, including a personal affidavit. (Doc. No. 60.)

In pertinent part, Plaintiff's fifteen-page affidavit represents that Defendants concealed from her that her salary was lower than that of her male colleagues despite her outstanding job performance (¶¶ 1-2, 9, 14, 24); that salary studies initiated by the OHR and AAO were discontinued prematurely and that the results of the study, which would have suggested gender discrimination, were concealed (¶¶ 1-5); that Defendants' PHRC position statement misrepresented that the highest paid faculty member in her department was a female (¶¶ 6, 15-17); that Defendants had internal policies of not informing faculty members whose salaries were investigated by the AAO as inexplicably low and not correcting salaries less than one standard deviation below the average (¶¶ 12, 18); and that the Haignere study indicated a systemic gender bias (¶ 20). (Doc. No. 75.) Defendants challenge these statements as assertions that are either too vague, conclusory, or without sufficient underlying first-hand knowledge by Plaintiff Summy-Long to meet the standards set forth in a Rule 56(e).

In addition to challenging Plaintiff's affidavit, Defendants also seek to refute the allegations raised by Plaintiff in her brief in opposition to the motion for summary judgment by filing supplemental affidavits of their own on the narrow issues of whether, in fact, an OHR study ever was conducted and whether the highest paid faculty member in Plaintiff's peer group was, in fact, a female.


Motion to Strike Pursuant to Rule 56(e)

Although affidavits are not required to sustain or overrule a motion for summary judgment, Rule 56(e) of the Federal Rules of Civil Procedure sets forth three requirements that a submitted affidavit must meet. It requires that affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed. R. Civ. P. 56(e). The Third Circuit has emphasized that "the affiant must ordinarily set forth facts, rather than opinions or conclusions. An affidavit that is essentially conclusory and lacking in specific facts is inadequate to satisfy the movant's burden." Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985) (internal citations omitted). In other words, an affidavit, or portions of an affidavit, are only admissible for purposes of summary judgment to the extent they are at least potentially admissible at trial. See Hurd v. Williams, 755 F.2d 306, 308 (3d Cir. 1985) (refusing to consider "facts" set forth in an affidavit opposing summary judgment because the facts were actually opinions inadmissible under Rule 701 of the Federal Rules of Evidence). Statements of belief, no matter how sincere, are properly subject to a motion to strike because they do not meet the personal knowledge requirement. Fowler v. Tillman, 97 F.Supp. 2d 602, 607 (D.N.J. 2000) ("Affidavits speculating as to motivations but containing no factual support do not conform to the rule, and statements prefaced by the phrases, 'I believe' or 'upon information and belief' are properly subject to a motion to strike.") (internal citations omitted).

Motion to File Supplemental Affidavits

Pursuant to Local Rule 7.3 and Rule 56 of the Federal Rules of Civil Procedure, Defendants are entitled to seek leave to file supplemental affidavits with the Court to support their motion for summary judgment. Such request will be granted at the Court's discretion. Of course, the same requirements of an affidavit as set forth in the preceding section apply to affidavits filed pursuant to a motion to file such supplemental documents made with the Court.


Defendants contest numerous statements and paragraphs in Plaintiff's affidavit and suggest that Plaintiff's affidavit operates more as argument in opposition to the motion for summary judgment than a sworn affidavit setting forth the facts of the situation as known to Plaintiff. As stated above, Plaintiff's affidavit should only consist of those matters of which she has personal knowledge, and it should state only facts about which she is competent to testify and that would be admissible at trial. Fed. R. Civ. P. 56(e). With this standard in mind, the Court turns to Plaintiff's affidavit.

1. Paragraph 1

Defendants claim that Plaintiff's assertion in paragraph one that Defendants concealed from her that her salary was lower than all male colleagues of similar rank is unsupported and conclusory. Plaintiff makes no response to this argument in her brief in opposition.

The Court agrees that Plaintiff's remark is conclusory. If Plaintiff has evidence of all male colleagues of similar academic rank within her department to compare with her own salary during that period, she should include that evidence as an exhibit rather than the blanket assertion she makes here. While it is a question on the merits as to whether Plaintiff actually was paid less, the question of whether Defendant knowingly concealed disparate treatment from Plaintiff is directly pertinent to her argument of equitable tolling and thus must be substantiated by facts, not mere assertions, to be admissible in an affidavit under rule 56(e) and to oppose a motion for summary judgment. Lujan v. National wildlife Federation, 497 U.S. 871, 886-89 (1990).

Plaintiff does not demonstrate that she has personal knowledge or evidence to support her representation that from 1982 to the present the fact her salary was lower than her male ...

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