Sumrall v. Ensco Offshore Co.

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the parties' cross-motions for summary judgment and Defendant Ensco Offshore Company's (“Ensco”) Motion to Strike Plaintiff's Affidavit. For the reasons below, the Court finds that Defendant's Motion to Strike is not well taken and should be denied; Defendant's Motion for Summary Judgment is granted in part and denied in part; and Plaintiff Brandon Sumrall's Motion for Summary Judgment is not well taken and should be denied.

         I. Background

         Plaintiff Brandon Sumrall was hired by Pride International, Inc. in 2005 as a roustabout on one of its rigs, the Deepwater Thunderhorse. Sumrall Aff. ¶ 2, ECF No. 34-1. Sumrall is a member of the Mississippi National Guard. Id. ¶ 3. In 2007, he took military leave and returned in 2008. Id. Sumrall took military leave again in June 2011 when he was deployed to Kuwait. Id. Shortly after he left, Ensco, the Defendant, acquired Pride. Id. ¶ 4.

         On March 1, 2012, Sumrall emailed Tommy Ellis^[1] requesting a new point of contact in Ensco's Houston office, as he had trouble reaching anyone there via phone or email. March 2012 Email Chain Between Sumrall, Ellis, and Phillips 2, ECF No. 32-5. Ellis forwarded the email to James Phillips, the rig training supervisor, who asked Sumrall what information he needed and told him to send his response to a shared email account. Id. at 1. Sumrall responded that he was having pay issues^[2] and that he wondered if Ensco was hiring because some of his friends were looking for jobs upon their return. Id. Phillips responded that the rig clerk was handling pay issues and stated that Ensco was hiring. Email from James Phillips to Brandon Sumrall (Apr. 1, 2012), ECF No. 32-6. Phillips provided Sumrall with the rig clerk email. Id.

         On May 2, 2012, Sumrall and Derek Sykes, a rig clerk, spoke on the phone regarding Sumrall returning to the Thunderhorse. Sykes then emailed Laurie Hayward, an HR employee, the following:

I just got off of the phone with Brandon Sumrall, a Roustabout that used to be assigned to [Thunderhorse] before he was depolyed [sic] to Iraq with the Army a year ago. He just got back to the states yesterday, and is looking to possibly be ready to come back to work the first of June. Do you think he could possibly fill one of these openings? He should be giving you and/or Faunn a call sometime today.

May 2, 2012 Email Chain 2 (May 2, 2012 at 11:17 A.M.), ECF No. 32-10. Sykes then emailed Sumrall contact information for several HR employees, including Laurie Hayward, and stated, “As discussed on the phone, I think it would be best if you contacted Laurie Hayward first and then Faunn Davis.” Email from Derek Sykes to Brandon Sumrall 2 (May 2, 2012 at 11:38 A.M.), ECF No, 32-12.

         That afternoon Hayward replied to Sykes's email, “Per Shawn Smith, [Sumrall] can return to the TH. Do you want to plug him into Crew D arriving on 25 May? Are you going to contact him? Do you have his info?” May 2, 2012 Email Chain 1 (May 2, 2012 at 4:18 P.M.), ECF No. 32-10. Shortly after, Sykes forwarded Hayward's response to Sumrall. Sykes wrote: “Brandon, Please see the below email…this will put you on D Crew with David Pineda. Just stay in contact with Laurie Hayward and my relief - Stephen Richardson as to when you will be ready to return to the rig.” May 2, 2012 Email Chain 1, (May 2, 2012 at 4:39 P.M.) ECF No. 32-10.

         On June 9, 2012, Richardson, the other rig clerk, emailed Hayward again:

I spoke with Brandon Sumrall today and he is needing a few classes before returning to work. . . . I do not have the email address for De'Janero Cooper^[3] or I would send it myself. Also, Mr. Sumrall is going to be sending a drill schedule for upcoming drills. Mr. Sumrall is requesting a contact number for someone in the HR department. If you could please reply with a name and number so he might be able to get some questions answered by HR.

         Email from Stephen Richardson to Laurie Hayward 1 (June 9, 2012), ECF No. 32-14. Two days later, Richardson sent Sumrall the contact information for Meghan Steed. Email from Richardson to Sumrall (June 11, 2012), ECF No. 32-15. Sumrall has alleged that he tried to call Ensco employees, but never received a response. Although Sumrall initially testified that he could not remember who he had called or when he made calls, he has recently submitted in an affidavit that he called Ensco personnel several times over the weekend of June 15-17, 2012, Father's Day Weekend and left messages that were not returned. Sumrall Aff. ¶ 16, ECF No. 34-1.^[4]

         Sumrall has submitted that since his calls were not returned, “I concluded the Ensco did not want me back.” Id. ¶ 17. Sumrall reported Ensco's failure to reinstate him to the Employer Support of the Guard and Reserve (ESGR). Id. ¶ 18. Ombudsman Ronald Keller told Sumrall that he should drop the matter and that Ensco would terminate him if he filed a complaint. Id. At some point after, Sumrall got a job doing maintenance work on a farm. Id. ¶ 20.

         On February 27, 2013, Ensco HR employees noticed that Sumrall was still listed in the system as on military leave. Feb. 27, 2013-Mar. 15, 2013 Email Chain 4, ECF No. 32-16. The parties dispute whether Ensco attempted to contact Sumrall then. Id. (email from Jason Ortiz stating he called Sumrall twice without response); Sumrall Aff. ¶ 24 (Sumrall stating he never received a call from Ensco after June 2012). Jason Ortiz, an HR employee wrote that he spoke to Sumrall's mother that month. Feb. 27, 2013-Mar. 15, 2013 Email Chain 4. She informed him that Sumrall was no longer actively deployed and that he had tried to contact the rig to return but gave up after being unsuccessful. Id. Ensco then terminated Sumrall as an employee, effective March 3, 2013. Id. at 1.

         In April 2017, Sumrall filed suit against Ensco alleging violations of the Uniform Services Employment and Reemployment Right Act (USERRA) for failing to promptly reinstate him, wrongful termination based on his membership in the Mississippi National Guard, and failure to give him a COBRA notice. Compl. ¶¶ 26-28, ECF No. 1. Both parties have filed motions for summary judgment and Ensco has also filed a motion to strike portions of Sumrall's Declaration.

         II. Motion to Strike [38]

         Defendant has argued that two paragraphs of Plaintiff's affidavit should be struck as they conflict with Plaintiff's previous deposition testimony. The Sham Affidavit Rule states that “a plaintiff may not manufacture a genuine issue of material fact [in defending a motion for summary judgment] by submitting an affidavit that impeaches prior testimony without explanation.” Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996); Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984). Nevertheless, “[w]hen an affidavit merely supplements rather than contradicts prior deposition testimony, the court may consider the affidavit when evaluating genuine issues in a motion for summary judgment.” S.W.S. Erectors, Inc., 72 F.3d at 496. Furthermore, the Court “cannot disregard a party's affidavit merely because it conflicts to some degree with an earlier deposition.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir. 1980). In such cases, there is merely an issue of credibility, which must be resolved by the jury. Id. at 893, 894. In contrast, when an affidavit attempts to create a sham issue, to the point that the court may brand it as “bogus, ” the Court may disregard such sham affidavit. Id. at 894.

         In its Motion to Strike, Ensco has objected to the following statements in Sumrall's affidavit:

15. . . . I called the home office multiple times but nobody responded to my voice messages

16. Over the Father's day weekend of June 15-17, 2012, I made repeated calls to Ensco personnel about returning to work. I left messages, but nobody ever called me back.

Sumrall Aff. ¶¶ 15-16, ECF No. 32-2. Defendant Ensco argues that this is plainly contradicted by Sumrall's deposition testimony. In his deposition, Sumrall testified that he did not keep notes of his phone calls to Ensco, Sumrall Dep. 54:25-55:2; 73:4-11, ECF No. 38-1, that he did not remember when he made his first or last phone call to Ensco or who he called, id. 55:19-56:3, and that he was unable to remember the numbers he called or what voicemails he left. Id. 72:18-22. After stating that he could not recall “right off the top of my head” whether he had any phone conversations with anyone from Ensco after June 11, 2012, Plaintiff testified that the last communication he had with Ensco was the June 11, 2012 email from Stephen Richardson giving him Meghan Steed's contact information. Id. 89:6-18. Sumrall testified that he did not remember if he called Steed, stating “I'm not going to lie and say I did and I didn't.” Id. 101:20-102:8.

         The Court finds that such statements are not sufficiently contradictory to warrant striking portions of the affidavit. Sumrall's testimony is, for the most part, that he did not remember the dates of any calls or who he called. Sumrall has submitted that he subsequently realized he made calls on Father's Day Weekend, and that he looked up the date. The Court, therefore, finds that there is no “inherent inconsistency” between the affidavit and the deposition testimony. The fact that Sumrall could not initially remember making calls after the June 11 email is an issue of credibility that is best determined by a jury. Therefore, Ensco's Motion to Strike is denied.

         Ensco has argued that if the Court declines to strike paragraphs 15 and 16 of Sumrall's affidavit, the Court should reopen discovery so that Ensco may question Sumrall about the creation of his affidavit and whether the changes came from him or his attorney. Ensco did not make this argument in its original motion; therefore, the Court need not consider it. Vais Arms, Inc. v. Vai, 383 F.3d 287, 292 (5th Cir. 2004) (quoting S. ...