UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Karen Cook

v. Civil No. 06-cv-58-JD

CTC Communications Corp.

O R D E R

CTC Communications Corporation moves to strike paragraph

thirteen of Karen Cook's affidavit submitted in support of Cook's

objection to CTC's motion for summary judgment. CTC asserts that

the paragraph contradicts Cook's prior deposition testimony. 

Cook objects to the motion, contending that her affidavit

statement merely elaborated on her deposition testimony.

As a preliminary matter, the court notes, sua sponte, that

Cook's affidavit is sworn as true and accurate based on her

knowledge, information, and belief. Personal knowledge is

required for an affidavit under Federal Rule of Civil Procedure

56(e), and, therefore, "[i]t is apodictic that an affidavit made

upon information and belief does not comply with Rule 56(e)." 

Perez v. Volvo Car Corp., 247 F.3d 303, 315 (1st Cir. 2001)

(internal quotation marks omitted). Because Cook may be presumed

to have personal knowledge of her telephone conversation with Ray

Allieri, her statement in paragraph thirteen is allowed under

Rule 56(e) as a statement made under oath and based on her

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1Of course, "[a] statement under oath constitutes perjury if

it is false, known to be so and material to the proceeding." 

United States v. Pagan-Santini, 451 F.3d 258, 266 (1st Cir. 2006)

(citing 18 U.S.C. § 1623).

2

personal knowledge of the truth of the statement.1 

"When an interested witness has given clear answers to

unambiguous questions, he cannot create a conflict and resist

summary judgment with an affidavit that is clearly contradictory,

but does not give a satisfactory explanation of why the testimony

is changed." Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d

1, 4-5 (1st Cir. 1994). If a contradictory affidavit is executed

in response to a motion for summary judgment, the timing is

"probative of the fact that the non-movant was merely attempting

to create an issue of fact." Orta-Castro v. Merck, Sharp & Dohme

Quimica P.R., 447 F.3d 105, 110 (1st Cir. 2006). "A subsequent

affidavit that merely explains, or amplifies upon, opaque

testimony given in a previous deposition is entitled to

consideration in opposition to a motion for summary judgment." 

Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 26 (1st Cir.

2002).

CTC filed its motion for summary judgment on July 13, 2007.

As part of the motion, CTC asserted that Cook could not prove her

claims of retaliation in violation of the Fair Labor Standards

Act, the Uniformed Services Employment and Reemployment Rights

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Act, and the Family and Medical Leave Act, because her job

required her to raise issues about compliance with those

requirements. CTC asserted that Cook had not made complaints or

taken any action outside the scope of her employment. See

Claudio-Gotay v. Beckton Dickerson Caribe, Ltd., 375 F.3d 99, 102

(1st Cir. 2004) (holding that to engage in protected activity

under the FLSA, an "employee must step outside his or her role of

representing the company and file an action adverse to the

employer, actively assist other employees in asserting FLSA

rights, or otherwise engage in activities that reasonably could

be perceived as directed towards the assertion of rights

protected by the FLSA") (internal quotation marks omitted). 

In her objection, Cook argued, in part, that she took action

adverse to CTC by warning CTC's CEO, Ray Allieri, that she would

notify the Department of Labor and other government agencies that

CTC was violating federal requirements. She submitted her

affidavit, dated August 6, 2007, in support of her objection. In

paragraph thirteen, Cook stated:

 As discussed at my deposition (page 142), during the

approximately thirty-minute October 10 2005 telephone

call that I had with Ray Allieri, I discussed the

concerns that I had about employees in my sector not

receiving proper wages and benefits. part of that

discussion included my telling Mr. Allieri that I

believed that I had a responsibility to notify the

Department of Labor and other Government Agencies of

legal violations if CTC had no intention of addressing

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the concerns I had raised.

On page 142 of her deposition, however, Cook agreed with

CTC's counsel that Tracy Bradstreet, Cook's supervisor, sent her

an email about Cook taking over the recruiting function in the

office, that she raised the issue of the email with Allieri, and

that she also raised an issue about employees in her sector

having issues with their pay and their benefits and a variety of

other concerns. When asked whether she said anything else, other

than to express her concerns about the employees in her sector

and about Bradstreet, she answered that she told Allieri that

Bradstreet was retaliating against her and detailed the basis for

that concern. She then said, "You know, as far as I can recall,

there may have been some other things, I'm trying to recall as

best I can all of the things that I covered in that conversation

with him. But that, you know - -." Dep. at 143. 

As CTC points out, Cook was asked about the conversation

with Allieri several times during the deposition but never

mentioned warning Allieri that she would notify the Department of

Labor and other agencies of CTC's alleged violations. Cook also

did not allege in her complaint that she made such a statement to

Allieri. When asked whether she said anything else during the

conversation, she did not report that warning. 

By way of explanation, Cook asserts that her statement that

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she warned Allieri she would report CTC's violations was merely

an elaboration of her previous testimony. Cook also criticizes

CTC's counsel for taking a short deposition, suggesting that

further questioning might have elicited the missing statement. 

Cook's statement in paragraph thirteen is not directly

contradictory to her deposition testimony. To the extent that

there is any inconsistency, that can be explored during crossexamination. The affidavit statement will not be struck. 

Conclusion

For the foregoing reasons, the defendant's motion to strike

(document no. 62) is denied. 

SO ORDERED.

/s/Joseph A. DiClerico, Jr. 

________________________ Joseph A. DiClerico, Jr.

United States District Judge

October 12, 2007

cc: Samantha C. Halem, Esq.

 Lauren S. Irwin, Esq.

 Mary L. Marshall, Esq.

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