United States District Court, D. Maryland
L. Russell, III United States District Judge.
MATTER is before the Court on Defendant’s, Performance
Food Group, Inc. (“PFG”), Motion for Summary
Judgment (ECF No. 28) and Plaintiff’s, Jason Geib,
Motion to Strike Certain Paragraphs of PFG’s Affidavits
(ECF No. 39). The Motions are ripe for disposition. Having
reviewed the Motions and supporting documents, the Court
finds no hearing necessary pursuant to Local Rule 105.6
(D.Md. 2016). For the reasons outlined below, the Court will
deny PFG’s Motion for Summary Judgment and grant
Geib’s Motion to Strike in part and deny it in part.
a foodservice distributor that delivers products to
restaurants, schools, and other institutions. PFG employed
Geib as warehouse manager at its Carroll County facility
(“CCF”) in New Windsor, Maryland from September
25, 2006 to March 19, 2007. Geib was hired to improve
warehouse operations, particularly during the night-shift,
which had declined substantially since spring of 2006 due to
understaffing and an increase in the volume of produce. As
warehouse manager, Geib was responsible for supervising,
hiring, and training warehouse staff.
time Geib was hired, he reported directly to Carl Bredberg,
Vice President of Operations at CCF, until Bredberg’s
departure in January 2007. Dave Russ, Regional Vice President
of Operations, supervised CCF until Jeffrey Wismans, selected
to be Bredberg’s replacement, began working on February
4, 2007. As Geib’s interim supervisor, Russ sent Geib
several emails from January 11, 2007 to February 10, 2007,
informing him of his failure to complete timely reports,
properly train and supervise warehouse staff, meet
productivity expectations, communicate effectively, and
conduct observations of associates to ensure they followed
best practices within the warehouse.
Geib’s tenure, he hired several female employees. On
November 9, 2006, Julie Lawrence received an offer to work
for PFG as a food selector. In November 2006, Russ and Dan
Pekscamp, Corporate Senior Vice President of Operations, told
Geib to remove female employees from the warehouse. Geib,
however, trained Lawrence and came to believe that she would
be a good candidate for a supervisory position. In January
2007, Geib spoke to Russ about Julie Lawrence being a
potential candidate for a supervisor position. Russ responded
that Pekscamp would not approve of Lawrence becoming a
supervisor because Pekscamp did not want women in the
warehouse. Also in January 2007, Pekscamp told a night shift
manager to fire a female employee and stated that Geib needed
to stop hiring women.
February 7, 2006, Wismans emailed Steve Stacharowski, Vice
President of Human Resources for PFG, stating he wanted to
post a position for a night-shift selection
trainer/supervisor. The position was posted on a recruitment
website on February 13, 2007, and the last date to apply was
February 21, 2007. It is disputed when Geib told Lawrence
about the position and asked her to apply. Lawrence faxed her
resume and letter of interest regarding the position to Geib
on February 28, 2007.
February 2007, Geib noticed who he believed to be external
applicants being interviewed for the supervisory position.
Geib went to Stacharowski’s office to follow-up on
Lawrence’s application. PFG’s policy required
associates to have at least six months of service, or obtain
the approval of the president or a general manager of PFG,
before they could apply for a supervisor position. Because
Lawrence had not worked for PFG for the requisite six months,
Geib asked Stacharowski to exempt her from the requirement.
When Stacharowski would not exempt Lawrence from the
requirement, Geib complained that Lawrence was not being
considered because she is a woman. Geib also complained to
Russ about Lawrence’s application not being considered
because she is a woman. Both Russ and Stacharowski dispute
that these conversations ever took place. (Stacharowski Decl.
¶¶ 32-33, ECF No. 34; Russ Decl. ¶¶
30-32, ECF No. 33).
the lack of performance improvements within the warehouse,
Russ sent an email to J. Michael Mattingly, President of PFG,
on February 26, 2007 stating he would make recommendations
regarding changes in the warehouse management structure. At
an unspecified time, Mattingly subsequently learned that the
recommendation was to replace Geib. (Mattingly Decl. ¶
26, ECF No. 32).
March 3, 2007, Geib emailed Wismans and Stacharowski, stating
that his wife was injured in a car accident and he needed to
travel to Oklahoma to take care of his children. On March 5,
2007, Wismans sent an email to Stacharowski about
Geib’s lack of commitment to his job and their need to
start a confidential search for an experienced warehouse
manager to replace Geib. At some point between March 5 and
March 16, 2007, Gardner told Geib that his position was
posted online. On March 14, 2007, Geib emailed Stacharowski
and Wismans stating that he was hoping to return to work
around March 26, 2007. In response to Geib’s email, on
March 14, 2007, Stacharowski requested that Geib contact him
or Wismans prior to making plans to return because there were
“some things [they needed] to discuss.” (ECF No.
31-21). Stacharowski states they needed to discuss the
decision he, Mattingly, and Wismans made to terminate
Geib’s employment. (Stacharowski Decl. ¶ 24, ECF
March 16, 2007, Geib called Stacharowski to discuss PFG
posting his position online and whether PFG would offer him
financial assistance if he were terminated. On March 18,
2007, Geib sent Stacharowski an email with “PFG
Separation” in the subject line in an attempt to
negotiate a severance package. In the email, Geib also stated
“[s]ince entering into PFG-CCF, [he saw] and tried to
administer systems and processes through racial and sexual
discrimination of employment practices from associates to
management and management to associates.” (ECF No.
38-15). On March 19, 2007, Stacharowski emailed Geib
terminating his employment and stating “the decision to
terminate [his] employment was not made until [that
day].” (ECF No. 31-23).
16, 2007, Geib filed a formal Charge of Discrimination with
the Maryland Commission on Human Relations and the United
States Equal Employment Opportunity Commission
(“EEOC”), alleging race- and sex-based
discrimination and retaliation. (ECF No. 38-17). On June 20,
2013, Geib received a Notice of Right to Sue from the EEOC.
(ECF No. 1-2). On September 13, 2013, Geib initiated this
action alleging retaliation in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), as
amended, 42 U.S.C. §§ 2000e et seq. (2012). (ECF
No. 1). PFG filed an Answer on November 8, 2013. (ECF No. 3).
On April, 6, 2015, PFG filed a Motion for Summary Judgment.
(ECF No. 28). On May 7, 2015, Geib filed an Opposition to the
Motion (ECF No. 38) and Motion to Strike Certain Paragraphs
[of] Defendant’s Affidavits (ECF No. 39). On May 22,
2016, PFG filed an Opposition to the Motion to Strike (ECF
No. 40). On June 16, 2015, PFG subsequently filed a Reply to
Geib’s Opposition. (ECF No. 43).
Motion to Strike
requests that the Court strike certain statements made in the
Declarations PFG uses to support its Motion for Summary
Judgment pursuant to the sham affidavit doctrine. Under the
sham affidavit doctrine, “a party cannot create a
genuine issue of fact sufficient to survive summary judgment
simply by contradicting his or her own previous sworn
statement (by, say, filing a later affidavit that flatly
contradicts that party’s earlier sworn deposition)
without explaining the contradiction or attempting to resolve
the disparity.” Ervin v. JP Morgan Chase Bank NA,
No. GLR- 13-2080, 2014 WL 4052895, at *2 (D.Md. Aug. 13,
2014) (quoting Cleveland v. Policy Mgmt. Sys. Corp.,
526 U.S. 795, 806 (1999)). “Application of the sham
affidavit rule at the summary judgment stage ‘must be
carefully limited to situations involving flat contradictions
of material fact.’” Id. (quoting
Zimmerman v. Novartis Pharm. Corp., 287 F.R.D. 357,
362 (D.Md. 2012)).
argues paragraphs 28 through 32 of Russ’s Declaration
contradict his prior deposition testimony. In the
Declaration, Russ states he never had a conversation with
Geib about Lawrence being promoted or interested in or
interviewed for the trainer/night supervisor position. He
also states he only spoke to Geib about Lawrence being a
capable employee in January 2007. During his deposition,
however, Russ states he had a conversation with Geib, in
which Geib stated Lawrence “had aptitude for a
potential position as a supervisor.” The Court,
therefore, finds Russ’s statement in paragraph 32 ...