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Heasley v. Echostar Satellite LLC.

May 22, 2009


The opinion of the court was delivered by: Donetta W. Ambrose Chief Judge, U.S. District Court



In this civil action, Plaintiff, formerly employed by Defendant, brings claims for discrimination and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, and violations of the Family Medical Leave Act ("FMLA"), 29 U.S.C.S. § 2615.

In brief, Plaintiff, a Field Sales Development Representative ("FSDR") at the pertinent times, avers that she was illegally denied a promotion and bonus, and that her supervisor unfairly disciplined her on three occasions,*fn1 assigned her an unusual number of "ride-alongs,"*fn2 assigned her a manual cleanup task on one occasion, gave her a negative performance review, failed to accommodate her pregnancy by, for, example, failing to provide her with a chair and breaks, and that she was subjected to several improper pregnancy-related comments.

Plaintiff was employed by Defendant for approximately four and a half years, and the record reflects that she lodged multiple internal complaints, several of which related to harassment, discrimination, or retaliation, during her tenure. Eventually, Plaintiff alleges, she was constructively discharged.

Defendant now moves for summary judgment on several grounds. For the following reasons, Defendant's Motion will be granted in part and denied in part.

Defendant has also filed a Motion to Strike Plaintiff's response to summary judgment, and her affidavit filed in connection therewith. That Motion will be denied.



Defendant has filed a Motion to Strike Plaintiff's responses to summary judgment, including her affidavit. The Motion is based on the "sham affidavit" doctrine, and non-compliance with local rules.

Under the sham affidavit doctrine, a party may not create an issue of fact to overcome summary judgment by filing an affidavit contrary to her prior sworn testimony, without offering a plausible explanation for that conflict. Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004). "When a party does not explain the contradiction between a subsequent affidavit and a prior deposition, [or in the absence of corroborating evidence,] it is appropriate for the district court to disregard the subsequent affidavit and the alleged factual issue in dispute as a 'sham,' therefore not creating an impediment to a grant of summary judgment based on the deposition." Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 254 (3d Cir. 2007).

In this case, while Plaintiff's deposition testimony and affidavit might appear at odds, they can be construed together; her affidavit does not have the qualities of a patently sham affidavit. The issues to which Defendant points are more properly characterized as gaps or minor discrepancies in Plaintiff's testimony, which bear on her credibility and are matters properly reserved for cross-examination. Additionally, several of the Defendant's concerns are immaterial to the disposition of Defendant's Motion.

As our Court of Appeals has stated, "there is simply no rule of law that provides that a discrimination plaintiff may not testify in his or her own behalf, or that such testimony, standing alone, can never make out a case of discrimination that will survive a motion for summary judgment." Jackson v. University of Pittsburgh, 826 F.2d 230, 236 (3d Cir. 1987). Nonetheless, self-serving affidavits are typically entitled to little weight, and may be insufficient to raise genuine issues of material fact if they lack factual support in the rest of the record. Dyszel v. Marks, 6 F.3d 116, 129 (3d Cir. 1993). The sham affidavit doctrine does not require me to strike Plaintiff's affidavit, and it will be given due consideration.

Defendant also argues that because Plaintiff failed to comply with Local Rule 56.1, it is unable to adequately respond to Plaintiff's factual allegations. Plaintiff does not respond to this argument, adequately or otherwise. Local Rule 56.1 provides as follows:

Alleged material facts set forth in the moving party's Concise Statement of Material Facts or in the opposing party's Responsive Concise Statement, which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party.

Because Defendant's submissions deal directly with the assertions raised in Plaintiff's responsive statement, which are supported almost exclusively by her affidavit, Defendant has not been prejudiced by Plaintiff's failure. I will not strike the response, but will construe the submissions in accordance with the local rules.


A. Standards

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. V. Stauffer Chem . Co., 898 F. 2d 946, 949 (3d Cir. 1990). The moving party bears the burden of demonstrating the absence of any genuine issues of material fact. United States v. Onmicare, Inc., 382 F. 3d 432 (3d Cir. 2004).

Rule 56, however, mandates the entry of judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof. Celotex Corp. v. Cattrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 265 (1986). Moreover, a "party cannot rely upon self-serving conclusions, unsupported by specific facts in the record." LaResca v. AT&T, 161 F.Supp. 2d 323, 327 (D.N.J.2001). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505; 91 L.Ed. 2d 202 (1986) (citations omitted).

B. Facts

The following summary, with shorthand references to pertinent events, is set forth as a reference point for purposes of conciseness. The facts will be more fully developed as pertinent in the body of the Opinion, infra, and are undisputed unless otherwise indicated.

June, 2004 *Plaintiff returns from FMLA leave, does not receive bonus

*Plaintiff complains re: same

June, 2005 *Plaintiff does not receive promotion

*Plaintiff complains re: same

November, 2005 *King assigned as Plaintiff's supervisor

*Plaintiff discloses pregnancy, King says, "How many tries did it take you?" January 12, 2006 *Plaintiff receives written consultation for providing quiz answers to co-worker; meets with Scholl (King's supervisor) and King re: same

*Plaintiff complains to HR re: same, HR personnel blamed her "hormones" January, 2006 *Plaintiff told to deal with, or allegedly to clean up, boxes in warehouse

*Plaintiff "immediately" complains to HR re: same May 1 - July 24, 2006 *Plaintiff on FMLA/maternity leave August, 2006 *King tells Plaintiff he is "surprised" she returned to work

August - November, 2006 *Plaintiff alleges increased ride-alongs

*Plaintiff alleges discriminatory comments during ride-alongs November 9, 2006 *King speaks with ...

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