United States District Court, M.D. North Carolina
MACKEAN P. NYANGWESO MAISHA, Plaintiff,
THE UNIVERSITY OF NORTH CAROLINA, et al., Defendants.
MEMORANDUM OPINION AND ORDER
CATHERINE C. EAGLES, District Judge.
In opposition to the defendants' motions for summary judgment, the plaintiff filed his own declaration under oath and the declarations under oath of four other witnesses. The defendants move to strike. To the extent the plaintiff's declaration is inconsistent with his deposition testimony, lacks foundation, or lacks personal knowledge, the Court will grant the motion. The Court will also grant the motion as to the testimony of other witnesses proffered by the plaintiff to the extent that those declarations include expert opinions the plaintiff did not timely disclose and inadmissible hearsay testimony.
1. The Plaintiff's Declaration
The defendants ask the Court to strike the entirety of Mr. Maisha's sworn declaration because it is inconsistent with his deposition testimony. In the alternative, they ask the Court to strike those inconsistent portions and other testimony that would be inadmissible at trial.
A party may not create a genuine issue of material fact by "filing a later affidavit that flatly contradicts that party's earlier sworn deposition." Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); see also In re Family Dollar FLSA Litig., 637 F.3d 508, 512-13 (4th Cir. 2011) ("If 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." (quoting Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984))).
Several statements Mr. Maisha made in his affidavit are either directly contradicted by his sworn deposition testimony or include information that he failed to disclose in his sworn testimony, despite lengthy questioning:
In his deposition, Mr. Maisha testified that English was his first language. (Doc. 57-3 at 3.) Yet, in his affidavit, he says, "I am of African dissent [sic] for whom English is not my native tongue..." (Doc. 53-1 at p. 17 ¶ 31.)
During his deposition, Mr. Maisha was asked to detail how Professor Fine discriminated against him. (Doc. 57-3 at 9.) He did not say that Professor Fine made negative comments about how he spoke English, ( see Doc. 57-3 at 9), nor did he disclose this information when asked in written discovery to state fully all facts or information supporting his contention that the University discriminated against him. ( See Doc. 57-2 at 4-10.) Yet, in his affidavit, Mr. Maisha testifies for the first time that "[w]hile working with Professor Fine he would often make negative comments about how [he] spoke English." (Doc. 53-1 at p. 19 ¶ 45.)
In his declaration, Mr. Maisha states that Professor Koch did not assign him any consulting duties in 2010 and "appeared to prefer working with [his] white student counterparts." (Doc. 53-1 at p. 27 ¶ 100.) He did not mention this in his discovery responses, (Doc. 57-2), nor in his deposition. (Doc. 57-3.)
In his declaration, Mr. Maisha explains in detail the circumstances surrounding a make-up mid-term exam in a class with Professor Qaqish. (Doc. 53-1 at pp. 15-16 ¶¶ 24-26.) In his deposition, however, Mr. Maisha first stated that he did not think he took an exam with Professor Qaqish. (Doc. 57-3 at 7.) Mr. Maisha later remembered a preliminary exam, which "was kind of like a mid term, " but said he asked Professor Qaqish for permission not to take that exam. (Doc. 57-3 at 8.) Mr. Maisha never mentioned taking a make-up mid-term exam or provided details surrounding that exam.
During his deposition, Mr. Maisha was evasive in response to questions related to Norway and his activities at the University of Oslo. (Doc. 57-3 at 2, 4.) He could not recall the names of any professors or colleagues or his specific dates of employment, other than to say that he had worked in Norway as recently as 2013. (Doc. 57-3 at 4-6.) Only after the defendants submitted a declaration from a University of Oslo professor detailing Mr. Maisha's activities there, (Doc. 43-10), did he contend, in his affidavit, that he sought employment at the University of Oslo because of the defendants' actions and that he set aside four hours a day while in Norway to work on projects assigned by Professor Koch. (Doc. 53-1 at p. 27 ¶¶ 99-101.)
During his deposition, Mr. Maisha was asked whether he had consulted a doctor for his emotional distress, and he testified that "[s]eeing a doctor requires insurance [and he] didn't have insurance after [he] stopped working for the university, " which occurred at the end of 2010. (Doc. 57-3 at 10.) In his declaration, however, he stated that he "used [his] loan disbursement for the fall 2011 [semester] to cover appropriate costs associated with living in Chapel Hill and other related expenses including rent, car and health insurance ..." (Doc. 53-1 at p. 26 ¶ 91 (emphasis added).)
As these examples make clear, Mr. Maisha's declaration includes impermissible attempts to bolster or contradict his prior sworn testimony. The defendants ask the Court to strike the entire affidavit based on the Fourth Circuit's determination that a court may disregard a sham affidavit. See In re Family Dollar FLSA Litig., 637 F.3d at 513; Jackson v. Consol. Coal Co., 21 F.3d 422 (table), 1994 WL 89801, at *3 (4th Cir. Mar. 22, 1994) (unpublished and per curiam). In In re Family Dollar, however, the court disregarded only those parts of the affidavit that were inconsistent with the witness's deposition and did not strike the entire deposition. In re Family Dollar, 637 F.3d at 513. The same is true in Jackson. See Jackson, 21 F.3d at *2-3. Here, striking the entire affidavit seems overly harsh, as inconsistencies have been identified in only about ten percent of the paragraphs. Instead, the Court will disregard the parts of the affidavit that are inconsistent with Mr. Maisha's deposition testimony, specifically the parts of Paragraphs 24-26, 31, 45, 91, and 99-101, discussed supra.
The defendants contend that much of Mr. Maisha's declaration is otherwise inadmissible because it is hearsay, personal beliefs, opinion, or conclusory. ...