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Federico v. Town of Rowley

United States District Court, D. Massachusetts

December 7, 2016

CARMINE FEDERICO, Plaintiff,
v.
TOWN OF ROWLEY and MARYBETH WISER, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO STRIKE

          F. Dennis Saylor IV United States District Judge.

         This is an employment dispute. Plaintiff Carmine Federico has brought this action against the Town of Rowley, his former employer, and MaryBeth Wiser, his former supervisor. Plaintiff alleges five claims against defendants related to incidents that occurred while he was employed with the Rowley Water Department and to his termination.[1]

         Defendants moved for summary judgment on all counts. In response, plaintiff filed affidavits from himself and Timothy Toomey, a former Commissioner for the Rowley Board of Water Commissioners. Defendants have moved to strike both the affidavits in their entirety. For the following reasons, defendants' motion will be denied in part and granted in part.

         I. Motions to Strike

         Generally speaking, only evidence that would be admissible at trial may be considered in connection with a motion for summary judgment. See Garside v. Osco Drug, Inc., 895 F.2d 46, 49-50 (1st Cir. 1990). A significant exception is affidavits; under Fed.R.Civ.P. 56, affidavits, although not themselves admissible at trial, may be offered in support of, or opposition to, summary judgment if they set forth facts that would be admissible under the Federal Rules of Evidence. See Id. at 49. Pursuant to Fed.R.Civ.P. 56(c)(4), “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”

         Summary judgment affidavits are subject to the “sham affidavit” rule. “When an interested witness has given clear answers to unambiguous questions [in a deposition], he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.” Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994); see also Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 20 (1st Cir. 2000); 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay Allen, Federal Practice & Procedure § 2726.1 (4th ed. 2016). The “sham affidavit” rule safeguards the integrity of summary judgment proceedings by preventing a party from “manufactur[ing] a dispute of fact by contradicting his earlier sworn testimony without a satisfactory explanation of why the testimony is changed.” Abreu-Guzman v. Ford, 241 F.3d 69, 74 (1st Cir. 2001).

         A motion to strike is the proper vehicle for challenging the admissibility of evidence offered at the summary judgment stage. See Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 682 (1st Cir. 1994). “The moving party must specify the objectionable portions of the affidavit and the specific grounds for objection. Furthermore, a court will disregard only those portions of an affidavit that are inadmissible and consider the rest of it.” Id. (citation omitted); see also Perez v. Volvo Car Corp., 247 F.3d 303, 315-16 (1st Cir. 2001).

         A. Motion to Strike Federico Affidavit

         Defendants have moved to strike Federico's affidavit in its entirety on the grounds it is not based on his personal knowledge, contains hearsay and irrelevant testimony that would not be admissible at trial, and directly conflicts with his deposition testimony and undisputed facts in defendants' statement of facts.

         Although it is true that Federico's affidavit contains statements that would not be admissible at trial and that conflict with prior statements, the affidavit is not so riddled with inadmissible testimony as to require striking it entirely. Many of the statements in the affidavit simply provide further support for statements Federico made during his deposition. Paragraphs four and eight of the affidavit, however, will be struck on the ground that they contradict the prior deposition testimony.

         Paragraph four of the Federico's affidavit states: “At no time did I spend excessive time on personal; (sic) calls or internet activity while on work hours.” (Federico Aff. ¶ 4). That statement contradicts Federico's deposition testimony:

Q. While you were at work did you ever access any websites concerning escort services or prostitutes?
A. I did look at those, but I didn't elicit anything -- solicit anything like that.
Q. But you looked at them on your work computer?
A. Yeah.

(Federico Dep. ...


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