Fierro v. Mesa Verde Enters., Inc.

• Citation: 244 F.Supp.3d 1153
• Decision Date: 14 August 2007
• Docket Number: Civ. No. 06–410 JH/WDS
• Parties: Chris FIERRO, Plaintiff, v. MESA VERDE ENTERPRISES, INC., and Cal McNatt, Defendants.
• Court: U.S. District Court — District of New Mexico

244 F.Supp.3d 1153

Chris FIERRO, Plaintiff,

v.MESA VERDE ENTERPRISES, INC., and Cal McNatt, Defendants.

Civ. No. 06–410 JH/WDS

United States District Court, D. New Mexico.

Filed August 14, 2007

Wayne R. Suggett, Albuquerque, NM, for Plaintiff.

Repps D. Stanford, Moody & Warner, PC, Christopher M. Moody, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

Judith C. Herrera, UNITED STATES DISTRICT JUDGE

This matter came before the Court on Defendants' Motion for Summary Judgment and Memorandum in Support [Doc. No. 38], as well as Plaintiff's Motion to Strike Sham Defense Argument Or, Alternatively, Request to Respond/Surreply [Doc. No. 51]. The motions present two issues. First, the Court must determine whether Plaintiff has attempted to create sham issues of fact through corrections to his deposition testimony and through his affidavit, written in response to Defendants' motion for summary judgment. Second, the Court must determine whether there is a genuine issue of material fact on each claim in Plaintiff's case. After considering the law, the evidence, and the arguments of counsel, the Court concludes that the motion to strike should be denied, and that the motion for summary judgment should be granted in part and denied in part.

LEGAL STANDARDS

Summary judgment generally is appropriate when a court determines that " ‘there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law.’ " Thrasher v. B & B Chem. Co. , 2 F.3d 995, 996 (10th Cir. 1993) (citation omitted). Under Rule 56(c), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Rather, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. 2505.

To carry its initial burden, the moving party need not negate the nonmoving party's claim. See Allen v. Muskogee, Okl. , 119 F.3d 837, 840 (10th Cir. 1997), cert. denied sub nom. Smith v. Allen , 522 U.S. 1148, 118 S.Ct. 1165, 140 L.Ed.2d 176 (1998). " ‘Instead, the movant only bears the initial burden of ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case.' " Id. (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party meets its burden, the nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ " Celotex , 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(e) ). A plaintiff cannot rely upon conclusory allegations or contentions of counsel to defeat summary judgment but rather must produce some specific factual support of its claim. See Pueblo Neighborhood Health Centers, Inc. v. Losavio , 847 F.2d 642, 649 (10th Cir. 1988) ; Fritzs c he v. Albuquerque Mun. Sch. Dist. , 194 F.Supp.2d 1194, 1206 (D.N.M. 2002). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ " Matsushita Elec. Indus. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). Upon a motion for summary judgment, a court "must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence." Kaus v. Standard Ins. Co. , 985 F.Supp. 1277, 1281 (D. Kan. 1997), aff'd , 162 F.3d 1173 (10th Cir. 1998). If there is no genuine issue of material fact in dispute, then a court must next determine whether the movant is entitled to judgment in its favor as a matter of law. See, e.g. , Jenkins v. Wood , 81 F.3d 988, 990 (10th Cir. 1996) ; Celotex , 477 U.S. at 322, 106 S.Ct. 2548.

In determining whether summary judgment is appropriate, a court should not disregard a party's evidence simply because it conflicts with his or her prior sworn statements; however, such evidence may be disregarded when a court concludes that the evidence is merely an attempt to create a sham fact issue. See Franks v. Nimmo , 796 F.2d 1230, 1237 (10th Cir. 1986) (disregarding an affidavit that is contrary to the affiant's earlier sworn statements and designed to create a sham issue of fact); Burns v. Bd. of County Comm'rs of Jackson Cty. , 330 F.3d 1275, 1282 (10th Cir. 2003) (extending Franks to deposition corrections that contradict the original testimony). "[T]he utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting [evidence] contradicting his own prior testimony." Franks , 796 F.2d at 1237. "Factors relevant to the existence of a sham fact issue include whether the [party] was cross-examined during his earlier testimony, whether the [party] had access to the pertinent evidence at the time of his earlier testimony or whether the [contested evidence] was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the [contested evidence] attempts to explain." Id .

In this case, the parties dispute the validity of Plaintiff's alterations to his deposition testimony on the errata page provided by the court reporter in accordance with Rule 30(e) of the Federal Rules of Civil Procedure. They also dispute the extent to which Plaintiff's affidavit dated April 22, 2007—prepared after Defendants filed their motion for summary judgment—contradicts or supplements his deposition testimony, and the question of whether it is a sham affidavit. With regard to the changes Plaintiff made to his deposition testimony via errata, the Court finds guidance in the Tenth Circuit's opinion in Garcia v. Pueblo Country Club , 299 F.3d 1233, 1242 n. 5 (10th Cir. 2002), in which the Court observed:

We are dismayed with [defendant's] reliance upon errata from deposition testimony where that errata strayed substantively from the original testimony....We do not condone counsel's allowing for material changes to deposition testimony and certainly do not approve of the use of such altered testimony that is controverted by the original testimony. See, e.g.,Coleman v. Southern Pac. Transp. Co. , 997 F.Supp. 1197, 1205 (D. Ariz. 1998) (discrediting deposition testimony directly contradicted by errata sheet); S.E.C. v. Parkersburg Wireless, L.L.C. , 156 F.R.D. 529, 535 (D.D.C. 1994) (noting modern trend in which courts do not allow a party "to make any substantive change she so desires" in deposition testimony); Rios v. Bigler , 847 F.Supp. 1538, 1546–47 (D. Kan. 1994) (stating that the court will consider only those changes which clarify the deposition, and not those which materially alter it); Greenway v. International Paper Co. , 144 F.R.D. 322, 325 (W.D. La. 1992) (suppressing deponent's attempt to rewrite material answers given in deposition); Barlow v. Esselte Pendaflex Corp ., 111 F.R.D. 404, 406 (M.D.N.C. 1986) (refusing to consider changes to deposition that were made in bad faith). Of all these courts, perhaps the Greenway court expressed the purpose and scope of Rule 30(e) best:

The purpose of Rule 30(e) is obvious. Should the reporter make a substantive error, i.e., he reported "yes" but I said "no," or a formal error, i.e., he reported the name to be "Lawrence Smith" but the proper name is "Laurence Smith," then corrections by the deponent would be in order. The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.

Greenway , 144 F.R.D. at 325 (emphasis added).

The Court will address the issues raised in both motions in light of these authorities.

FACTUAL BACKGROUND

Viewed in the light most favorable to Fierro, the facts as set forth in the evidence presented by parties are as follows. Defendant Mesa Verde Enterprises, Inc. ("Mesa Verde") hired Plaintiff Chris Fierro ("Fierro") in March of 1997. Fierro Depo. Vol. I at p. 4; Fierro Aff. at ¶ 1. At either the time of his interview, or shortly after he was hired, Mesa Verde provided Fierro with a set of company policies and procedures. Fierro Depo. Vol. II at p. 4; Plaintiff's Resp. Br. at p. 11. Those policies provide:

PROBATIONARY PERIOD. A probationary period of six months for each employee will begin from the initial date of employment. During this time, the employee may be terminated without any written or verbal reprimands if it is deemed that his/her work performance is unsatisfactory as determined by the supervisor or management.... GROUNDS FOR TERMINATION. Prior to termination, employees will be given one verbal reprimand and one written reprimand. If the problem persists, the employee will be terminated. Based on the seriousness of the employee's action or violation, the verbal or written reprimand or both may be waived and termination can be immediate.

Defendants' Ex. 2. Fierro signed a form indicating that he had read and understood these policies. See Plaintiff's Ex. 4. However, Fierro testified at his November 16, 2006 deposition that he did not read the policies and procedures at that time or at any later time. Fierro Depo. Vol. I at pp. 67–68.¹

Mesa Verde revised its employment policies and procedures in 2001. Fierro signed a document acknowledging that he had read the revised policies and procedures, but he does not think that he ever received or read them. Fierro Depo. Vol. II at pp. 10–12. The 2001 policies contain the same language quoted above with regard to...