United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
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
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.
March 1, 2012, Sumrall emailed Tommy Ellis 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 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
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.
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.
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.
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.
9, 2012, Richardson, the other rig clerk, emailed Hayward
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 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.
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.
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.
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.
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
Motion to Strike 
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.
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.
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.
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. ...