Evans v. Walgreen Company
Filing
136
ORDER DENYING DEFENDANT'S APPEAL OF MAGISTRATE JUDGE'S ORDER DENYING DEFENDANT'S MOTION TO STRIKE. Signed by Judge Samuel H. Mays, Jr., on 7/5/2011. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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CHANDRA EVANS,
Plaintiff,
v.
WALGREEN COMPANY,
Defendant.
No. 09-2491
ORDER DENYING DEFENDANT’S APPEAL OF MAGISTRATE JUDGE’S ORDER
DENYING DEFENDANT’S MOTION TO STRIKE
Before the Court is Defendant Walgreen Company’s May 25,
2011
Appeal
Motion
to
of
the
Strike
Magistrate
Specific
Judge’s
Statements
Denial
of
Defendant’s
Asserted
in
Plaintiff’s
Affidavits Respectively Filed on October 15, 2010 and November
14, 2010.
Def.’s
(Def.’s Appeal of the Magistrate Judge’s Denial of
Mot.
to
Strike
Specific
Statements
Asserted
in
Pl.’s
Affs. Respectively Filed on October 15, 2010 and November 14,
2010, ECF No. 121.)
(“Walgreens Appeal”)
Plaintiff Chandra
Evans (“Evans”) responded in opposition on June 3, 2011.
(Pl.’s
Resp. to Def.’s Objections to Magistrate Judge Tu M. Pham’s May
16,
2011
following
Order,
ECF
reasons,
No.
126.)
Walgreen
(“Evans’
Company’s
Magistrate Judge’s order are OVERRULED.
I.
Background
Resp.”)
For
the
objections
to
the
On November 24, 2010, Walgreen Company (“Walgreens”) filed
a motion to strike certain statements in Evans’ affidavits and
Evans’ additional statements of facts set forth in her responses
to Walgreens’ motions for summary judgment.
(Def.’s Mot. to
Strike Specific Statements Asserted in Pl.’s Affs. Respectively
Filed on October 15, 2010 and November 14, 2010 and Statements
of Fact Asserted in Documents 62 and 63 in Violation of the
Local Rules of this Court, ECF No. 66.)
Strike”)
(“Walgreens Mot. to
Evans responded in opposition on November 29, 2010.
(Pl.’s Resp. and Mem. in Opp’n to Def.’s Mot. to Strike Portions
of Pl.’s Affs., ECF No. 67.)
The Court referred Walgreens’
motion to the Magistrate Judge for a determination.
(Order of
Reference, ECF No. 69.)
On May 16, 2011, the Magistrate Judge denied Walgreens’
motion.
(Order Denying Walgreens Company’s Mot. to Strike, ECF
No. 120.)
(“Magistrate Judge’s Order”)
statements
in
her
affidavits
He found that Evans’
relating
to
“coercion”
by
Walgreens, her reasons for moving to Memphis, whether she signed
or acknowledged any agreements with Walgreens, and Walgreens’
replacing
her
with
a
Caucasian
employee
did
not
directly
contradict her deposition testimony and declined to strike those
statements.
(See id. at 4-13.)
He also declined to strike
Evans’ statement of additional facts.
2
(See id. at 13-14.)
Walgreens
appealed
(Walgreens Appeal 20.)
to
this
Court
on
May
25,
2011.
In its appeal, Walgreens argues that the
Magistrate Judge’s legal conclusions are contrary to law and
that
Evans’
statements
in
her
affidavits
should
because they contradict her deposition testimony.
2-19.)
be
struck
(See id. at
In her response to Walgreens’ appeal, Evans disagrees,
arguing that there are no inconsistencies between her deposition
testimony and her affidavits and that the Magistrate Judge was
correct.
(See Evans’ Resp. 1-15.)
II.
Standard of Review
“When a party objects to a magistrate judge’s ruling on a
non-dispositive matter, the district judge ‘must consider timely
objections and modify or set aside any part of the order that is
clearly
erroneous
or
is
contrary
to
law.’”
E.E.O.C.
v.
Burlington N. & Santa Fe Ry. Co., 621 F. Supp. 2d 603, 605 (W.D.
Tenn. 2009) (quoting Fed. R. Civ. P. 72(a)); accord Bell v.
Ameritech Sickness & Accident Disability Benefit Plan, 399 F.
App’x
991,
997
636(b)(1)(A),
pretrial
a
matter
magistrate
decision.’
judge
n.5
(6th
district
to
a
judge
magistrate
must
Unlike
Cir.
then
the
2010)
may
to
issue
(“Under
refer
hear
an
‘recommended
a
and
‘order
28
U.S.C.
§
nondispositive
decide.
stating
disposition’
that
The
the
a
magistrate judge issues on a dispositive motion, this order is
binding.
The parties may object to the order, but it remains
3
binding except to the extent that the district court modifies or
sets aside any part of the order that is clearly erroneous or
contrary to law.”) (citations omitted); Baker v. Peterson, 67 F.
App’x
308,
310
(6th
Cir.
2003)
(“A
district
court
normally
applies a ‘clearly erroneous or contrary to law’ standard of
review
for
nondispositive
preliminary
measures.”
(citing
28
U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a))); United States v.
Curtis, 237 F.3d 598, 603 (6th Cir. 2001) (“A district court
shall apply a ‘clearly erroneous or contrary to law’ standard of
review
for
the
‘nondispositive’
preliminary
measures
of
§
636(b)(1)(A).” (citing United States v. Raddatz, 447 U.S. 667,
673 (1980))).
“The ‘clearly erroneous’ standard applies only to factual
findings
made
by
the
Magistrate
Judge,
while
[his]
legal
conclusions will be reviewed under the more lenient ‘contrary to
law’ standard.”
Burlington N. & Santa Fe Ry. Co., 621 F. Supp.
2d at 605 (quoting Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D.
Ohio 1992), aff’d, 19 F.3d 1432 (6th Cir. 1994)).
“A district
court’s review under the contrary to law standard is plenary,
and it may overturn any conclusions of law which contradict or
ignore applicable precepts of law . . . Thus, [a district court]
must
exercise
its
independent
judgment
Magistrate Judge’s legal conclusions.”
with
respect
to
Id. at 605-06 (quoting
Gandee, 785 F. Supp. at 686) (internal quotation marks omitted).
4
a
III. Analysis
Walgreens argues that certain portions of Evans’ affidavits
should
be
struck:
(1)
allegedly
conclusory
statements
in
paragraphs 14 and 18 of Evans’ affidavits; (2) Evans’ statements
in paragraphs 14 and 18 of her affidavits that Puamuh Ghogomu
(“Ghogomu”), an in-house counsel for Walgreens who works in the
employee
relations
department,
told
her
what
to
write
in
a
statement Evans provided to Walgreens; (3) Evans’ statements in
her affidavits about her reasons for moving to Memphis; and (4)
Evans’ statements in paragraph 4 of her affidavits that she did
not sign or acknowledge an agreement about her bonus.
Walgreens Appeal 4-19.)
(See
Evans disagrees and argues that the
Magistrate Judge correctly denied Walgreens’ motion to strike.
(See Evans’ Resp. 1-15.)
A.
Walgreens
Allegedly Conclusory Statements in Paragraphs 14
and 18 of Evans’ Affidavits
argues
that
paragraphs
14
and
18
of
Evans’
affidavits contain conclusory statements that the Court should
not consider as part of its summary judgment analysis.
Walgreens Appeal 5.)
(See
The portions of paragraphs 14 and 18 to
which Walgreens objects state:
I was led by Ghogomu to believe that if I did [meet
with Steve Walker and Jacob Tibbe and provide
statements to them] everything would be fine, and I
would be allowed to continue to work at Walgreens.
. . .
5
My statement was coerced by Walgreen’s management,
including Ghogomu who gave me legal advice as to
whether to prepare the statement . . . .
(Aff. of Chandra Evans ¶¶ 14, 18, ECF No. 62-1; Aff. of Chandra
Evans ¶¶ 14, 18, ECF No. 63-1.)
As a threshold matter, Walgreens does not appear to have
expressly made this argument to the Magistrate Judge in its
motion to strike.
(See Walgreens Mot. to Strike 1-2; Mem. in
Supp. of Def.’s Mot. to Strike Specific Statements Asserted in
Pl.’s Affs. 1-13, ECF No. 66-1.)
address
Walgreens’
Judge’s
Order
argument
1-14.)
in
Because
The Magistrate Judge did not
his
order.
“[t]his
Court
(See
Magistrate
cannot
address
arguments on objection to a nondispositive pretrial order unless
the Magistrate Judge had occasion to address them,” Walgreens
has waived this argument.
Hann v. Michigan, No. 05-CV-71347,
2007 WL 4219384, at *3 (E.D. Mich. Nov. 29, 2007) (citation
omitted).
Regardless, Evans’ statements explain her motivations for
taking certain actions, providing context for issues in this
case.
summary
They are not her only evidence in opposing Walgreens’
judgment
motions.
Walgreens’
argument
that
these
statements should be struck because they are irrelevant is not
well-taken.
(See Walgreens Appeal 5.)
6
B.
Evans’ Statements in Paragraphs 14 and 18 of
Affidavits that Ghogomu Told Her What to Write in
Statement
Walgreens argues that Evans’ statements in paragraphs 14
and 18 of her affidavits that Ghogomu told her what to write in
a statement she provided to Walgreens should be struck because
they directly contradict her deposition testimony.
12.)
(See id. 5-
Alternatively, Walgreens argues that the statements are an
attempt
to
disregarded.
create
a
sham
issue
of
fact
and
should
be
(See id. at 5, 12-13.)
Evans states in paragraphs 14 and 18 of her affidavits:
During the conversations with me, Ghogomu repeated to
me what others were saying about what allegedly
happened during the incidents we discussed.
He told
me his [sic] is what he wanted me to include in my
written statement. He told me that I should meet with
Steve Walker and Jacob Tibbe and provide these
statements to these men.
I was led by Ghogomu to
believe that if I did that everything would be fine,
and I would be allowed to continue to work at
Walgreens.
. . .
My statement was coerced by Walgreen’s management,
including Ghogomu who gave me legal advice as to
whether to prepare the statement and what should be
included in it.
(Aff. of Chandra Evans ¶¶ 14, 18, ECF No. 62-1; Aff. of Chandra
Evans ¶¶ 14, 18, ECF No. 63-1.)
As the Magistrate Judge noted,
Evans was not asked during her deposition whether Ghogomu told
her what information to include in her written statement, why
she agreed to provide the written statement, and whether she
7
felt
she
statement.
would
be
able
to
keep
her
job
if
she
provided
a
(See Magistrate Judge’s Order 6; see also Walgreens
Appeal 5-10; Evans Dep., ECF No. 66-4.)
“[A] district court deciding the admissibility of a postdeposition affidavit at the summary judgment stage must first
determine
whether
the
affidavit
directly
nonmoving party’s prior sworn testimony.”
contradicts
the
Aerel, S.R.L. v. PCC
Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006) (citation
omitted).
“A
directly
contradictory
affidavit
should
be
stricken unless the party opposing summary judgment provides a
persuasive justification for the contradiction.”
omitted).
“If,
contradiction,
on
then
the
the
Id. (citation
other
hand,
there
is
no
direct
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. (citation omitted); accord O’Brien v. Ed Donnelly Enters.,
Inc., 575 F.3d 567, 593 (6th Cir. 2009).
When a party who was
not directly questioned about an issue supplements incomplete
deposition
testimony
with
a
sworn
affidavit,
“[s]uch
an
affidavit fills a gap left open by the moving party and thus
provides the district court with more information, rather than
less, at the crucial summary judgment stage.”
448 F.3d at 907.
8
Aerel, S.R.L.,
Here, the Magistrate Judge correctly found that paragraphs
14 and 18 of Evans’ affidavit do not directly contradict her
deposition testimony.
(See Magistrate Judge’s Order 6.)
This
is not a case of direct contradiction, as when a deponent states
a fact during her deposition and denies that fact in her postdeposition affidavit.
See, e.g., White v. Baptist Mem’l Health
Care Corp., No. 08-2478, 2011 WL 1100242, at *6 (W.D. Tenn. Mar.
23, 2011) (finding direct contradiction and disregarding part of
a plaintiff’s affidavit where the plaintiff stated during her
deposition that she recorded in an exception log when she did
not receive a full lunch break and asserted in a post-deposition
affidavit that she “did not know [she] could claim payment for
meal breaks when [she] was interrupted and did not receive [her]
entire break”).
Walgreens has not demonstrated that the Magistrate Judge’s
order denying its motion to strike the statements in paragraphs
14 and 28 of Evans’ affidavits is clearly erroneous or contrary
to law.
Judge
Walgreens also has not demonstrated that the Magistrate
erred
in
concluding
that
Evans’
attempt to create a sham fact issue.
affidavit
is
not
an
Therefore, Walgreens’
objections to those aspects of the Magistrate Judge’s order are
overruled.
See Bell, 399 F. App’x at 997 n.5; Baker, 67 F.
App’x at 310; Curtis, 237 F.3d at 603; Burlington N. & Santa Fe
9
Ry. Co., 621 F. Supp. 2d at 605; see also O’Brien, 575 F.3d at
593; Aerel, S.R.L., 448 F.3d at 908.
C.
Evans’ Statements in Affidavits About Reasons for
Moving to Memphis
Walgreens argues that Evans’ statements in her affidavits
and memoranda about her reasons for moving to Memphis should be
struck
because
testimony.
they
directly
contradict
(See Walgreens Appeal 13-16.)
her
deposition
Evans states in her
affidavits:
I was recruited to come and work in Memphis by
Walgreens representative Eugene Hoover, who made
promises to me to convince me to leave North Carolina
and come to Memphis.
Mr. Hoover discussed the sign-on bonus and relocation
with me and never informed me of any obligation to
repay the bonuses if Walgreens terminated me. Hoover
also informed me that Walgreens would employ me as a
pharmacist for at least three years since it was
providing me with the sign-on bonuses.
In reliance on Walgreens’ representation, I moved from
North Carolina to Memphis in or about August 2006. I
graduated from pharmacy school in December 2006 and
became a licensed pharmacist in January 2007.
In or about 2006, while a resident of the State of
North Carolina, I had a lengthy conversation with
Eugene Hoover wherein after he discussed with me the
bonus and other benefits, he told me I would work in
the East district of Memphis for three (3) years once
I arrived in Memphis. Hoover never told me that there
was any expectation that any compensation provided to
[me] would ever have to be repaid.
Based on Mr. Hoover’s contractual promises, I chose to
uproot from my family and move to Memphis to work with
Walgreen.
10
(Aff. of Chandra Evans ¶¶ 3-5, ECF No. 46-1; Aff. of Chandra
Evans ¶¶ 3, 5-6, ECF No. 62-1; Aff. of Chandra Evans ¶¶ 3, 5-6,
ECF No. 63-1.)
Evans
testified
during
her
deposition
that
she
did
not
recall or remember many of the details of the conversations she
had
with
Hoover
or
other
Walgreens
representatives.
(See
Magistrate Judge’s Order 8; see also Walgreens Appeal 14-16;
Evans Dep., ECF No. 66-4.)
When asked, “[W]hat prompted you to,
I guess, take an option to come to Memphis versus staying in
North
Carolina,”
reason.”
Evans
responded,
(Evans. Dep. 148:1-4.)
“There
was
no
particular
She also said that there were
no particular advantages in moving to Memphis and that Hoover
made no promises to her about “working at this particular store
or this district.”
(See id. 148:5-11, 149:8-14.)
The Magistrate Judge is correct that Evans’ statements in
her
affidavits
testimony.
do
not
directly
contradict
her
(See Magistrate Judge’s Order 8.)
deposition
Unlike White,
Evans never affirmatively stated a fact during her deposition
and then asserted the opposite in a post-deposition affidavit.
See
White,
affidavits
2011
are
WL
not
1100242,
an
at
attempt
*6.
to
The
create
statements
a
sham
fact
in
her
issue.
Walgreens has not demonstrated that the Magistrate Judge’s order
denying its motion to strike Evans’ statements about her reasons
for moving is clearly erroneous or contrary to law.
11
Therefore,
Walgreens’ objections to that aspect of the Magistrate Judge’s
order are overruled.
See Bell, 399 F. App’x at 997 n.5; Baker,
67 F. App’x at 310; Curtis, 237 F.3d at 603; Burlington N. &
Santa Fe Ry. Co., 621 F. Supp. 2d at 605; see also O’Brien, 575
F.3d at 593; Aerel, S.R.L., 448 F.3d at 908.
D.
Evans’ Statements in Paragraphs 4 and 8 of
Affidavits that She Did Not Sign or Acknowledge
an Agreement About Bonus
Walgreens argues that Evans’ statements in her affidavits
denying that she signed or acknowledged an agreement about her
bonus
should
deposition
be
struck
testimony.
because
(See
they
Walgreens
directly
Appeal
contradict
16-18.)
her
Evans
stated in her affidavits:
I did not sign the documents that are attached to
Defendant’s counterclaim.
The first time I saw the alleged written bonus
document was during the course of this litigation. I
did not sign or acknowledge this agreement.
(Aff. of Chandra Evans ¶ 8, ECF No. 46-1; Aff. of Chandra Evans
¶ 4, ECF No. 62-1; Aff. of Chandra Evans ¶ 4, ECF No. 63-1.)
Evans testified during her deposition that she did not remember
receiving a copy of the agreement or signing any agreements with
Walgreens.
(See
Magistrate
Judge’s
Order
11-12;
see
also
Walgreens Appeal 17; Evans Dep., ECF No. 66-4.)
The Magistrate Judge is correct that Evans’ statements in
her
affidavits
do
not
directly
12
contradict
her
deposition
testimony.
(See Magistrate Judge’s Order 11-12.)
Evans never
testified that she did or did not sign the bonus agreement.
(See, e.g., id.; Evans Dep., ECF No. 66-4.)
The statements in
her affidavits are not an attempt to create a sham fact issue.
Walgreens has not demonstrated that the Magistrate Judge’s order
denying its motion to strike Evans’ statements in her affidavits
that she did not sign or acknowledge an agreement about her
bonus
is
clearly
erroneous
or
contrary
to
law.
Therefore,
Walgreens’ objections to that aspect of the Magistrate Judge’s
order are overruled.
See Bell, 399 F. App’x at 997 n.5; Baker,
67 F. App’x at 310; Curtis, 237 F.3d at 603; Burlington N. &
Santa Fe Ry. Co., 621 F. Supp. 2d at 605; see also O’Brien, 575
F.3d at 593; Aerel, S.R.L., 448 F.3d at 908.
IV.
Conclusion
For
the
Magistrate
Evans’
foregoing
Judge’s
affidavits
reasons,
order
that
are
Walgreens’
OVERRULED.
Walgreens
objections
The
challenges
do
to
statements
not
the
in
directly
contradict her deposition testimony and do not constitute sham
issues.
So ordered this 5th day of July, 2011.
s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
13
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