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Cossairt v. Jarrett Builders, Inc.

United States District Court, M.D. Tennessee, Nashville Division

February 20, 2018




         Samara 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.

         Viewing 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).

         Typically, 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.

         Not 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.

         I. Motion to Strike

         Jarrett took Cossairt's deposition on June 26, 2017. Four months later, Cossairt filed her Declaration.

         Jarrett 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.


         Federal 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).

         Not 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.

         The 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 Cir.1986)).

         This 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.


         Jarrett's 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 deposition testimony.

         To the 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 explained:

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 sexually harassed.

(Id. at 145).

         “Hostile 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.

         Jarrett 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”[1] off of females. Jarrett argues Cossairt's responses are in “keeping with” her testimony about objecting to inappropriate statements:

Q. Now did you - did you tell him not to say this kind of stuff?
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.

         Furthermore, 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 ...

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