United States District Court, M.D. Tennessee, Nashville Division
SAMARA R. COSSAIRT Plaintiff,
JARRETT BUILDERS, INC. Defendant.
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
R. Cossairt (“Cossairt”) was hired as a laborer
by Jarrett Builders, Inc. (“Jarrett”) in January
2015, and, on April 1, 2015, was promoted to foreman. Less
than a year later she was fired, ostensibly because of
conflicts with other employees and her inability to perform
the duties of a foreman.
the reason for her termination differently, Cossairt filed
suit in the Circuit Court for Davidson County, Tennessee,
alleging sexual discrimination and harassment, unequal pay,
and the intentional infliction of emotional distress. After
the case was removed to this Court and Cossairt's
deposition had been taken, Jarrett moved for summary judgment
on her harassment and intentional infliction of emotional
distress claims. In addition to the Motion for Partial
Summary Judgment (Doc. No. 16) and accompanying Memorandum of
Law (Doc. No. 17), Jarrett filed a Statement of Undisputed
Material Facts (Doc. No. 1) containing 75 paragraphs. In
response, Cossairt filed her own Memorandum of Law (Doc. No.
26), along with a Declaration (Doc. No. 27-2) that largely
serves as the basis for her own Statement of Additional
Undisputed Facts (Doc. No. 27) containing 66 paragraphs.
Jarrett then filed a reply (Doc. No. 38).
this Court begins its analysis of a summary judgment motion
by setting forth the undisputed facts and noting any facts
that may be in dispute. That approach is neither practical
nor efficient in this case.
only are the combined 141 paragraphs (and an equal number of
responses) somewhat unwieldy for an uncomplicated single
plaintiff employment case, they set forth a widely divergent
view of the working atmosphere at Jarrett. More importantly,
Cossairt's Declaration is the subject of a Motion to
Strike (Doc. No. 31) by Jarrett that produced yet another
round of briefing (Doc. Nos. 32, 35 & 38). Because
resolution of that Motion is effectively outcome
determinative of the partial motion for summary judgment as
it relates to Cossairt's sexual harassment claim, the
Court turns to it first.
Motion to Strike
took Cossairt's deposition on June 26, 2017. Four months
later, Cossairt filed her Declaration.
moves to strike Cossairt's Declaration on the grounds
that it “attempts to contradict much of Cossairt's
earlier deposition testimony and tries to breath life into
her hostile workplace claim and her claim for the intentional
infliction of emotional distress.” (Doc. No. 31 at 1).
Not only should the Declaration be stricken Jarrett argues,
attorney's fees and expenses should be awarded “as
a result of the bad faith submission of that
Declaration.” (Id. at 2). The Court disagrees.
courts “have held with virtual unanimity that a party
cannot create a genuine issue of fact sufficient to survive
summary judgment simply by contradicting his or her own
previous sworn statement (by, say, filing a later affidavit
that flatly contradicts that party's earlier sworn
deposition) without explaining the contradiction or
attempting to resolve the disparity.” Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)
(collecting cases). To address the problem, courts, including
the Sixth Circuit, have developed the “sham affidavit
doctrine” which “prevents a party from submitting
a new affidavit to manufacture a factual dispute by
contradicting an earlier testimony.” Webb v. United
States, 789 F.3d 647, 660-61 (6th Cir. 2015).
every post-deposition affidavit or declaration is prohibited,
however. Rather, a distinction must be made between
legitimate efforts to supplement or clarify the record, and
attempts to create sham issues to stave off summary judgment
and force an unnecessary trial.
sham affidavit doctrine was discussed in detail by the Sixth
Circuit in Aerel, S.R.L. v. PCC Airfoils, L.L.C.,
448 F.3d 899, 907-08 (6th Cir. 2006). After noting the law in
other circuits, the court wrote:
[A] district court deciding the admissibility of a
post-deposition affidavit at the summary judgment stage must
first determine whether the affidavit directly contradicts
the nonmoving party's prior sworn testimony. . . . A
directly contradictory affidavit should be stricken unless
the party opposing summary judgment provides a persuasive
justification for the contradiction. . . . If, on the other
hand, there is no direct contradiction, then the district
court should not strike or disregard that affidavit unless
the court determines that the affidavit “constitutes an
attempt to create a sham fact issue.”
Id. at 908 (internal citations omitted). With regard
to the issue of whether the affidavit attempts to create a
sham issue of fact, the Aerial court went on to
endorse a “non-exhaustive list of factors” that
asks “‘whether the affiant was cross-examined
during his earlier testimony, whether the affiant had access
to the pertinent evidence at the time of his earlier
testimony or whether the affidavit was based on newly
discovered evidence, and whether the earlier testimony
reflects confusion [that] the affidavit attempts to
explain.'” Id. at 908-09 (quoting
Franks v. Nimmo, 796 F.2d 1230, 1237 (10th
Court has read Cossairt's 359 page deposition and the
accompanying 53 pages of exhibits in conjunction with her 15
page, 46 paragraph Declaration. Based upon that review, the
Court finds that Cossairt's Declaration is generally
consistent with, and an amplification of, her prior
deposition testimony, and was not submitted simply in an
effort to forestall the entry of judgment against her.
Motion to Strike is premised primarily on the argument that
Cossairt stated in her deposition that she did not believe
that she had been sexually harassed during the time she was a
laborer, yet, in her Declaration, she points to incidents
prior to March 30, 2015 (before she became a foreman) as
supporting her sexual harassment claim. Cossairt's
statements on this issue do not directly contradict her
contrary, while Cossairt replied “no” to the
question of whether she believed she was sexually harassed
while a laborer, she also explained that it took her a while
to realize exactly what was going on and that the harassment
“built up. So there was times I believe I was but
didn't really start until I became a foreman..”
(Doc. No. 18-3, Cossairt Depo. at 131). Cossairt also
elaborated on this point later in her deposition. When asked
why she did not complain to Jason Jarrett, the owner of the
company, when she met with him early in her employment, she
Q. But my question is, what was on - Why didn't you tell
him what was on your mind? If at that point you were sexually
harassed, why didn't you tell him that?
A. In the beginning, I didn't - I didn't - I
didn't feel that as much. It eventually - it brought me
down slowly. It took me a long time to realize what I was
actually going through, and it took me - still to this day, I
- I'm still getting over it. I - I didn't know at the
time. I though that I what I was being put through and
dealing with was just part of working with men, and I wanted
to fit in, so I didn't at the time realize I was being
(Id. at 145).
environment claims are different in kind from discrete acts.
Their very nature involves repeated conduct.”
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 115 (2002). Absent egregious and exceptional
circumstances, it is a cumulative series of acts or comments
that build up subjectively and create objectively an alleged
hostile work environment. The Court will not disregard what
Cossairt claims occurred as a laborer simply because she may
not have recognized it as sexual harassment at the time.
also argues that, in several of the paragraphs of her
Declaration, Cossairt claims she “made clear to [her]
supervisor Steven Cook” that various comments were not
appropriate when, in fact, “Cossairt did not testify
that she had told Cook or anyone else with Defendant that she
considered the comments to be inappropriate or
unwelcomed.” (Doc. No. 32 at 3). As sole support for
the argument, Jarrett relies on Cossairt's deposition
responses to questions relating to Cook's alleged
comments about “beating the brakes” off of females.
Jarrett argues Cossairt's responses are in “keeping
with” her testimony about objecting to inappropriate
Q. Now did you - did you tell him not to say this kind of
A. I - yeah, Yes. I - I'd give him a disgusted look and
kind of walk away and almost just laugh at -- not - like, an
awkward confusion as “Do you think that's funny? Do
you think that's okay?” And he would just kind of
smile at me like it was no big deal.
Q. So you directly told him to stop?
A. Yes. Maybe not “stop.” Maybe, like I said,
this is how rumors get started, why are you doing this, what
- I mean, I didn't use the word “stop.”
(Doc. No. 27-2 Cossairt Depo. at 289-90). Such testimony does
not directly contradict Cossairt's statement in her
Declaration that she endeavored to make clear to Cook that
the comments were unwelcomed.
in setting forth the foregoing colloquy, Jarrett omits the
following exchange between counsel and Cossairt:
Q. Did you ever tell him not to say this anymore? I mean -
and I don't mean like giving him the look. I mean
actually say, “Don't talk like that in front of
me., don't talk - I'm ...