Morrow v. Carolina Urologic Research Center LLC et al

Filing 52

ORDER granting in part and denying in part 39 Motion to Strike. Signed by Magistrate Judge Thomas E Rogers, III on 7/30/2014.(mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
TAUMERA MORROW,

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Plaintiff,
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-vs)
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CAROLINA UROLOGIC RESEARCH
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CENTER, LLC, and STACY HARRELSON)
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Defendants.
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___________________________________ )

Civil Action No.: 4:13-cv-0695-RBH-TER

ORDER

Plaintiff brings this employment discrimination action pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000(e), et seq. (Title VII) and 42 U.S.C. § 1981, alleging race
discrimination, hostile work environment and retaliation. She also asserts state law causes of action
for intentional infliction of emotional distress and defamation.1 Plaintiff originally filed this action
in the Court of Common Pleas, Horry County, South Carolina. Defendants removed the action to
this court on March 15, 2013. Presently before the court is Defendants’ Motion to Strike (Document
# 39) portions of Plaintiff’s Affidavit submitted in opposition to Defendants’ Motion for Summary
Judgment. All pretrial proceedings in this case were referred to the undersigned pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC.
“[S]ummary judgment affidavits cannot be conclusory, or based upon hearsay.” Evans v.
Technologies Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996). “In the absence of an
affirmative showing of personal knowledge of specific facts, a court cannot consider such an
affidavit in making its summary judgment determination.” Orange v. Fielding, 517 F.Supp.2d 776,
1

Plaintiff also alleged a state law cause of action for breach of contract, but withdrew that
claim in her Response. Pl. Response pp. 32-33.

783 (D.S.C. 2007) (citing Guseh v. N.C. Cent. Univ., 423 F.Supp.2d 550, 555 (M.D.N.C.2005)).
Additionally, “[i]t is well recognized that a plaintiff may not avoid summary judgment by submitting
an affidavit that conflicts with earlier deposition testimony.” Alba v. Merrill Lynch & Co., 198 Fed.
Appx. 288, 300 (4th Cir.2006); see also Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.1984)
(“A genuine issue of material fact is not created where the only issue of fact is to determine which
of the two conflicting versions of the plaintiff's testimony is correct.”). Indeed, “[i]f a party who has
been examined at length on deposition could raise an issue of fact simply by submitting an affidavit
contradicting his own prior testimony, this would greatly diminish the utility of summary judgment
as a procedure for screening out sham issues of fact.” Barwick, 736 F.2d at 960 (internal quotation
omitted).
Defendants ask the court to strike paragraphs 12, 22, 23, 24, 31, 35, and 38. The court has
reviewed these paragraphs as well as Plaintiff’s reliance on these averments in her Response in
opposition to the Motion for Summary Judgment. With respect to paragraph 38, where Plaintiff
avers “[d]uring my employment, Dr. Shore informed me2 that the only problem with me is that I was
black” Pl. Aff. ¶ 38, Plaintiff concedes in her response that this statement can be stricken.
Accordingly, this portion of paragraph 38 should be stricken. The remaining portion of paragraph
38, in which Plaintiff states “He further informed me that I was lucky to have a job there because he
did not have to hire any black people,” is not directly contradictory to Plaintiff’s deposition and, thus,
should not be stricken. The remaining paragraphs challenged by Defendants are not material to a
resolution of the Motion for Summary Judgment.
For the reasons discussed above, Defendants’ Motion to Strike (Document # 39) is
2

Defendants argue this directly contradicts her deposition testimony, in which she states
that her supervisor told her that Dr. Shore said this about Plaintiff after he interviewed her. Pl.
Dep. 47-48.

GRANTED with respect to the portion of paragraph 38, in which Plaintiff states, “During my
employment, Dr. Shore informed me that the only problem with me is that I was black,” and
otherwise DENIED.
IT IS SO ORDERED.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
July 30, 2014
Florence, South Carolina