Crawford v. Garland

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JANICE M. CRAWFORD,
Plaintiff,
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v. 	) 	No. 2:23-cv-02456-SHM-atc
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PAMELA BONDI, ATTORNEY
GENERAL, U.S. DEPARTMENT OF
JUSTICE
Defendant.
ORDER
Before 	the 	Court 	is 	Defendant’s 	“Motion 	to 	Strike 	or
Disregard 	Paragraphs 	2-3 	and 	12-15 	of 	Steve 	Moody’s 	Sham
Declaration.” 	(ECF 	No. 	94.) 	For 	the 	reasons 	below, 	the 	Court
GRANTS IN PART and DENIES IN PART Defendant’s Motion.
I. 	Background
Plaintiff’s 	Complaint 	alleges 	employment 	discrimination
under 	Title 	VII 	of 	the 	Civil 	Rights 	Act 	of 	1964, 	42 	U.S.C. 	§
2000e, as amended by §1981a (“Title VII”). (ECF No. 1.) Plaintiff
alleges that the U.S. Department of Justice discriminated against
her 	by 	retaliating 	against 	her 	for 	engaging 	in 	a 	protected
activity as defined by Title VII. (Id.) Specifically, Plaintiff
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alleges 	that 	the 	Department 	of 	Justice 	refused 	to 	hire 	her 	for
an Administrative Officer (“AO”) position in Seattle because of
her prior EEO activity. (Id.) On August 20, 2025, Defendant moved
for summary judgment. (ECF No. 75.) On October 7, 2025, Plaintiff
filed 	her 	Response, 	including 	an 	additional 	declaration 	by 	a
witness, 	Steven 	Moody 	(the 	“Moody 	Declaration”). 	(ECF 	Nos. 	83
and 	83-1.) 	On 	December 	4, 	2025, 	Defendant 	filed 	the 	“Motion 	to
Strike 	or 	Disregard 	Paragraphs 	2-3 	and 	12-15 	of 	Steve 	Moody’s
Sham 	Declaration.” 	(ECF 	No. 	94.) 	Plaintiff 	responded 	to 	the
Motion on December 22, 2025. (ECF No. 98.)
II. 	Law
Defendant titles its Motion “Motion to Strike or Disregard…”
portions of the Moody Declaration. (ECF No 94.) Defendant cites
relevant caselaw, but does not cite the rules of civil procedure
under which it brings its Motion. (Id.)
The Federal Rules of Civil Procedure provide no grounds to
strike 	documents 	that 	are 	not 	pleadings. 	See 	Fed. 	R. 	Civ. 	P.
12(f) (“The court may strike from a pleading…”); see also Fox v.
Michigan 	State 	Police 	Dep’t, 	173 	F. 	App’x 	372, 	375 	(6th 	Cir.
2006) 	(“Under 	Fed. 	R. 	Civ. 	P. 	12(f), 	a 	court 	may 	strike 	only
material 	that 	is 	contained 	in 	the 	pleadings”); 	and 	Benoist 	v.
Titan Med. Mfg., LLC, No. 219CV02704SHMTMP, 2021 WL 1723235, at
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*1 	(W.D. 	Tenn. 	Apr. 	30, 	2021) 	(“The 	Federal 	Rules 	of 	Civil
Procedure 	do 	not 	provide 	for 	a 	motion 	to 	strike 	documents 	or
portions of documents other than pleadings”).
The 	Rules 	of 	Civil 	Procedure 	define 	“pleading” 	as 	a
complaint, an answer to a complaint, an answer to a counterclaim
designated as a counterclaim, an answer to a crossclaim, a third-
party 	complaint, 	an 	answer 	to 	a 	third-party 	complaint, 	and, 	if
the 	court 	orders 	one, 	a 	reply 	to 	an 	answer. 	Fed. 	R. 	Civ. 	P.
7(a).
Declarations 	attached 	as 	exhibits 	to 	summary 	judgment
responses 	are 	not 	pleadings. 	Therefore, 	the 	Court 	cannot
“strike” the paragraphs Defendant contests.
The 	Motion 	also 	asks 	the 	Court 	to 	“disregard” 	select
paragraphs of Moody’s Declaration. (ECF No. 94.) In the body of
the Motion, Defendant appears to limit its request to the Court’s
consideration 	of 	Defendant’s 	summary 	judgment 	motion. 	“Because
¶¶ 2-3 and 12-15 of Moody’s declaration directly contradict his
deposition testimony, the Court should strike or disregard these
paragraphs when it considers the [Defendant’s] motion for summary
judgment.” (ECF No. 94 at 7.)
Federal Rule of Civil Procedure 56 governs summary judgment.
Fed. 	R. 	Civ. 	P. 	56. 	Rule 	56(c)(2) 	allows 	parties 	to 	“object
that 	material 	cited 	to 	support 	or 	dispute 	a 	fact 	cannot 	be
presented in a form that would be admissible in evidence.” 	Fed.
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R. Civ. P. 56(c)(2). 	The 2010 amendment notes provide that Rule
56(c)(2) 	objections 	“[f]unction 	much 	as 	an 	objection 	at 	trial,
adjusted 	for 	the 	pretrial 	setting…There 	is 	no 	need 	to 	make 	a
separate 	motion 	to 	strike.” 	Fed. 	R. 	Civ. 	P. 	56. 	Nonetheless,
courts considering similar motions have held that, “[i]f a party
does 	file 	a 	separate 	motion 	to 	strike, 	the 	motion 	should 	be
construed as an objection under Rule 56(c)(2).” P.F. v. Gordon,
No. 3:15CV01923, 2018 WL 2149280, at *3 (N.D. Ohio May 10, 2018),
citing Stillwagon v. City of Delaware, 274 F. Supp. 3d 714, 737
(S.D. Ohio 2017). 	In P.F. v. Gordon, the Court decided a similar
motion that asked the court to “strike” allegedly contradictory
or 	“sham” 	declarations 	that 	the 	plaintiff 	included 	in 	the
response to a defendant’s motion for summary judgment. 	2018 WL
2149280. 	There, 	the 	Court 	construed 	the 	“motion 	to 	strike” 	as
an objection under Rule 56(c)(2) and decided which paragraphs of
the declarations could be considered when the court decided the
summary judgment motion. Id.
The 	Court 	construes 	Defendant’s 	“Motion 	to 	Strike 	or
Disregard” as an objection under Rule 56(c)(2) and will determine
whether 	to 	consider 	the 	disputed 	paragraphs 	of 	the 	Moody
Declaration 	when 	it 	decides 	Defendant’s 	motion 	for 	summary
judgment.
Although Defendant’s motion for summary judgment was filed
first, “[g]enerally, a district court should dispose of motions
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that affect the record on summary judgment before ruling on the
parties' 	summary 	judgment 	motions.” 	Brainard 	v. 	Am. 	Skandia
Life Assur. Corp., 432 F.3d 655, 667 (6th Cir. 2005). 	The Court
will decide Defendant’s “Motion to Strike or Disregard…” before
ruling on Defendant’s motion for summary judgment.
III. Analysis - Sham Affidavit
Rule 56(c)(1)(A) allows parties seeking or opposing summary
judgment to cite materials in the record, including “affidavits
or 	declarations.” 	Fed. 	R. 	Civ. 	P. 	56(c)(1)(A). 	The 	Moody
Declaration, 	which 	Plaintiff 	attaches 	to 	her 	response 	to
Defendant’s 	motion 	for 	summary 	judgment, 	would 	ordinarily 	be
allowable under this rule.
Defendant 	argues, 	however, 	that 	the 	Moody 	Declaration
violates the “sham affidavit” rule. (ECF No. 94 at 2.) That rule
“embodies the common-sense conclusion that a party may not create
a 	factual 	issue 	by 	filing 	an 	affidavit, 	after 	a 	motion 	for
summary 	judgment 	has 	been 	made, 	which 	contradicts 	his 	earlier
deposition 	testimony.” 	Cox 	v. 	Ruckel, 	No. 	23-5698, 	2025 	WL
2603787, at *8 (6th Cir. Sept. 9, 2025) (cleaned up). 	The Sixth
Circuit 	has 	said 	that 	the 	rule 	applies 	in 	two 	situations. 	It
can 	apply 	when 	a 	witness’s 	affidavit 	“directly 	contradicts 	the
witness’s prior testimony,” and it can apply when the witness’s
affidavit 	is 	“in 	tension 	with 	that 	prior 	testimony” 	so 	as 	to
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create a “sham issue.” 	Boykin v. Fam. Dollar Stores of Michigan,
LLC, 	3 	F.4th 	832, 	842 	(6th 	Cir. 	2021) 	(citing 	Aerel, 	S.R.L. 	v.
PCC Airfoils, L.L.C., 448 F.3d 899 (6th Cir. 2006)). 	Courts in
the 	Sixth 	Circuit 	“generally 	apply 	the 	sham 	affidavit 	doctrine
against a party who attempts to avoid summary judgment by filing
his own affidavit that directly contradicts his own prior sworn
testimony. 	France 	v. 	Lucas, 	836 	F.3d 	612, 	622–23 	(6th 	Cir.
2016). 	However, 	the 	doctrine 	has 	been 	expanded 	to 	include
witnesses and other parties to the case. 	See Id. (holding that
the doctrine applied to another defendant’s affidavit); and Pogue
v. 	Nw. 	Mut. 	Life 	Ins. 	Co., 	No. 	18-5291, 	2019 	WL 	1376032, 	at 	*4
(6th 	Cir. 	Feb. 	7, 	2019) 	(applying 	the 	doctrine 	to 	a 	witness).
The purpose of the doctrine is straightforward: “If a party who
has 	been 	examined 	at 	length 	under 	oath 	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.” 	France, 836 F.3d at 622 (cleaned up).
Defendant 	argues 	that 	paragraphs 	2, 	3, 	and 	12-15 	are
directly contradictory and should not be considered for purposes
of 	summary 	judgment 	under 	the 	sham 	affidavit 	rule. 	(ECF 	No. 	94
at 2-7.) Defendant argues, in the alternative, that if paragraphs
12-15 	are 	not 	contradictory, 	they 	are 	in 	tension 	with 	Moody’s
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prior deposition testimony and should be similarly excluded from
consideration 	for 	purposes 	of 	summary 	judgment. 	(Id. 	at 	7-11.)
Plaintiff 	responds 	that 	the 	new 	affidavit 	does 	not 	contradict
prior testimony, but “merely clarifies his testimony.” (ECF No.
98 at 2-3.) Plaintiff offers no explanation for potential changes
in Moody’s statements. (Id.)
In resolving the Motion, “the Court must use a scalpel, not
a butcher knife, striking only those portions of affidavits that
do not satisfy the requirements” of Rule 56(c). 	Jacqueline Prado
v. 	Mazeika, 	No. 	3:16-CV-320, 	2019 	WL 	1301729, 	at 	*4 	(S.D. 	Ohio
Mar. 	21, 	2019) 	(citing 	Upshaw 	v. 	Ford 	Motor 	Co., 	576 	F.3d 	576,
593 (6th Cir. 2009)).
The Court must analyze each contested portion of the Moody
Declaration, 	deciding 	first 	whether 	the 	statements 	are
contradictory 	and, 	if 	any 	are 	not 	contradictory, 	whether 	they
should 	be 	excluded 	for 	purposes 	of 	summary 	judgment 	under 	the
“sham affidavit” rule.
A. Contradiction Analysis
District 	courts 	“deciding 	the 	admissibility 	of 	a 	post-
deposition 	affidavit 	at 	the 	summary 	judgment 	stage 	must 	first
determine 	whether 	the 	affidavit 	directly 	contradicts 	the
nonmoving 	party's 	prior 	sworn 	testimony.” 	Aerel, 	448 	F.3d 	at
908. 	A 	directly 	contradictory 	affidavit 	“should 	be 	stricken
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unless the party opposing summary judgment provides a persuasive
justification for the contradiction.” 	Id., see also France, 836
F.3d 	at 	622. 	The 	affidavit 	in 	question 	must 	“directly
contradict[]” prior witness testimony. 	Boykin, 3 F.4th at 842.
Sixth 	Circuit 	“precedent[] 	suggest[s] 	a 	relatively 	narrow
definition 	of 	contradiction.” 	Reich 	v. 	City 	of 	Elizabethtown,
Kentucky, 945 F.3d 968, 976 (6th Cir. 2019) (internal quotations
omitted). 	“Statements 	are 	not 	directly 	contradictory 	if 	they
can be simultaneously true.” 	Francis v. ProMedica Health Sys.,
Inc., 601 F. Supp. 3d 258, 262 (N.D. Ohio 2022).
This standard “is a far cry…from preventing a party who was
not 	directly 	questioned 	about 	an 	issue 	from 	supplementing
incomplete deposition testimony with a sworn affidavit.” 	Aerel,
448 F.3d at 907.
1. Paragraph 2
Defendant argues that paragraph 2 of the Moody Declaration
is 	contradictory 	and 	should 	be 	ignored 	because 	Moody 	says 	that
he worked “in the United States District Court” in Shelby County,
Tennessee. (ECF No. 94 at 3.) Defendant compares paragraph 2 to
Moody’s 	prior 	testimony 	in 	which 	he 	states 	that 	he 	worked 	in
Memphis, 	but 	never 	in 	the 	United 	States 	District 	Court
specifically. 	(Id.) 	Defendant 	also 	cites 	testimony 	in 	which,
when 	Moody 	was 	asked 	if 	he 	had 	left 	anything 	out 	of 	his 	work
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history as he described it in a different deposition, he replied
“not 	that 	I 	can 	think 	of 	right 	now.” 	(Id.) 	Defendant 	cites 	no
testimony 	in 	which 	Moody 	expressly 	denied 	working 	in 	the 	U.S.
District Court. (Id.)
Moody’s testimony is not contradictory because Moody never
expressly 	denied 	working 	in 	the 	U.S. 	District 	Court 	in 	Shelby
County. 	Moody describes where he worked more specifically than
in 	his 	prior 	testimony. 	He 	does 	not 	contradict 	it. 	Both
statements 	can 	be 	simultaneously 	true. 	Paragraph 	2
“supplement[s] 	incomplete 	deposition 	testimony 	with 	a 	sworn
affidavit” and is therefore allowable. 	Aerel, 448 F.3d at 907.
Defendant 	also 	admits 	that, 	even 	if 	it 	were 	contradictory,
paragraph 2 would “not create any dispute of material fact that
would 	preclude 	summary 	judgment.” 	(ECF 	No. 	94 	at 	8.) 	Paragraph
2 of the Moody Declaration does not directly contradict Moody’s
prior testimony.
2. Paragraph 3
Defendant 	argues 	that 	paragraph 	3 	of 	Moody’s 	Declaration
contradicts his prior testimony. (ECF No. 94 at 3.) In paragraph
3, 	Moody 	says 	that 	he 	“performed 	AO 	duties 	in 	other
jurisdictions, including…Arkansas.” (Id.) In paragraph 2 of the
Moody Declaration, Moody says he had worked as an AO in Memphis.
(Id.) Defendant cites Moody’s prior testimony referenced above,
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where 	when 	asked 	if 	he 	had 	“left 	out” 	any 	part 	of 	his 	work
history, Moody replied “not that I can think of right now. No.”
(Id. 	at 	3.) 	In 	his 	prior 	testimony, 	Moody 	mentioned 	working 	as
an AO in Arkansas and Memphis, but no other locations. (ECF No.
94-2 	at 	3-4.) 	Defendant 	focuses 	on 	the 	plural 	of 	the 	word
“jurisdictions,” arguing that, because Moody appears to refer to
at 	least 	one 	jurisdiction 	other 	than 	Memphis 	and 	Arkansas, 	he
contradicts his prior testimony. (ECF No. 94 at 3.)
The 	cited 	sentence 	sentence 	fails 	to 	directly 	contradict
his 	prior 	testimony 	because 	Moody 	stated 	in 	prior 	deposition
testimony 	that 	he 	could 	not 	think 	of 	anything 	he 	had 	left 	out
“right 	now.” 	It 	is 	possible 	that 	he 	later 	remembered 	other
jurisdictions. 	It is also possible that he “performed AO duties
in other jurisdictions” on an ad hoc or temporary basis, despite
being 	officially 	employed 	in 	other 	roles. 	It 	is 	also 	possible
that 	Moody 	merely 	imprecisely 	and 	improperly 	used 	the 	plural
form of the word.
Defendant 	cites 	no 	prior 	testimony 	that 	directly
contradicts paragraph 3 of the Moody Declaration where he states
he 	performed 	AO 	duties 	in 	two 	locations. 	Paragraph 	3, 	like
paragraph 2 above, merely supplements prior testimony. 	Defendant
also 	admits 	that, 	even 	if 	it 	were 	contradictory, 	paragraph 	3
would 	“not 	create 	any 	dispute 	of 	material 	fact 	that 	would
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preclude summary judgment.” (Id. at 8.) Paragraph 3 of the Moody
Declaration 	does 	not 	directly 	contradict 	his 	prior 	deposition
testimony.
3. Paragraph 12
Defendant argues that paragraph 12 of the Moody Declaration
contradicts 	his 	prior 	testimony. 	(Id. 	at 	3.) 	In 	paragraph 	12,
Moody says:
The 	Chief 	Financial 	Officer 	in 	my 	area 	(Holley 	O’Brien)
required 	that 	my 	team 	review 	resumes 	of 	candidates 	for 	the
Seattle 	AO 	position 	and 	rank 	them 	to 	ensure 	critical 	financial
positions 	were 	filled 	by 	local 	district 	managers 	to 	applicants
that had experience and could likely perform the job and did not
fill 	critical 	financial 	positions 	with 	friends 	of 	friends 	or,
for 	example, 	other 	court 	employees 	that 	were 	nice 	but 	didn’t
have proper qualifications or experience
(ECF No. 94 at 3-4.) Defendant cites various sections of Moody’s
prior 	testimony 	that 	discuss 	the 	process 	for 	rating 	applicants
to the Seattle AO position and that show Moody used the word “I”
to refer to the rankings. (ECF No. 94 at 3-4.) Defendant argues
that this testimony directly contradicts his Declaration because
Moody used the word “I” rather than referring to a “team.” (Id.)
This 	paragraph 	of 	Moody’s 	Declaration 	does 	not 	directly
contradict Moody’s prior testimony for multiple reasons. 	There
is no direct contradiction between saying that “I” did something
and saying my “team” did something if the individual “I” is part
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of that team. 	The former statement could be a more specific or
exact version of the latter. 	People often refer to achievements
as 	their 	own 	when 	in 	reality 	they 	were 	the 	result 	of 	a 	team’s
work. 	Defendant 	cites 	no 	prior 	testimony 	in 	which 	Moody 	was
asked directly about whether he or a team produced the rankings.
Even 	if 	there 	were 	a 	contradiction, 	however, 	the 	Moody
Declaration says that the Chief Financial Officer “required that”
the 	team 	review 	the 	applicants. 	The 	Declaration 	does 	not 	say
that 	Moody 	or 	the 	team 	followed 	the 	requirement. 	Paragraph 	12
states 	the 	Chief 	Financial 	Officer’s 	requirement 	and 	nothing
more. 	Defendant 	cites 	no 	prior 	testimony 	that 	directly
contradicts what Moody understood the Chief Financial Officer’s
requirement 	to 	be. 	Paragraph 	12 	does 	not 	directly 	contradict
Moody’s prior testimony.
4. Paragraph 13
Defendant 	argues 	that 	paragraph 	13 	of 	Moody’s 	declaration
contradicts 	his 	prior 	testimony. 	(ECF 	No. 	94 	at 	4.) 	That
paragraph 	consists 	of 	three 	sentences. 	Defendant 	argues 	that
they 	should 	not 	be 	considered 	for 	purposes 	of 	summary 	judgment
because they contradict prior testimony. (Id. at 4-6.)
In sentence one, Moody says that he “forwarded to the Human
Resources 	Division 	(HRD) 	the 	recommendations 	of 	the 	team,”
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apparently 	referring 	to 	the 	Seattle 	AO 	position. 	(Id. 	at 	4.)
Defendant cites a passage in a deposition in which Moody agrees
with 	the 	proposition 	from 	the 	questioner 	that 	“you 	forwarded
your 	ratings 	to 	Mr. 	Green, 	Right?” 	(Id.) 	This 	is 	not 	directly
contradictory 	for 	the 	reasons 	described 	above. 	Team 	leaders
often 	take 	individual 	credit 	for 	their 	team’s 	accomplishments,
or refer to the team when they acted alone. 	This sentence does
not directly contradict Moody’s prior testimony.
Defendant 	analyzes 	sentences 	two 	and 	three 	together,
arguing that both contradict prior testimony. (Id.) They read:
Because 	of 	HRD 	distinction 	it 	was 	varied 	as 	to 	whether 	or
not 	I 	already 	knew 	what 	the 	district 	wanted, 	whether 	or 	not
interviewing 	had 	already 	ranked 	the 	applicants, 	and 	often 	the
HRD would run down and ask me to rank because they had forgotten
and 	needed 	to 	make 	an 	official 	offer. 	This 	was 	our 	process 	at
the time not specific to the Seattle AO position.
(Id.) Defendant cites two parts of Moody’s prior testimony that
Defendant 	argues 	contradict 	these 	sentences. 	The 	first 	is 	a
statement, 	likely 	referring 	to 	the 	candidate 	rankings 	for 	the
Seattle AO position, that Moody “forgot that [he] even did this
as 	part 	of 	[his] 	job.” 	(Id.) 	Stripped 	from 	context, 	this 	may
appear 	to 	contradict 	Moody’s 	Declaration. 	In 	full 	context,1
1 Courts consider the context of the disputed testimony when parties
allege a sham affidavit. See Francis, 601 F. Supp. 3d at 263
(stating that the court “cannot examine the words in a vacuum but
must examine them in the context of the testimony in this case”).
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however, Moody’s failure to remember appears limited to specific
times 	during 	which 	candidates 	for 	the 	Seattle 	AO 	position 	were
ranked. (ECF No. 75-7 at 28.) Moody refers to other parts of the
selection process generally throughout the deposition Defendant
cites.2 	Although Moody’s memory in the prior deposition may have
been inexact about specific details of the selection process for
the Seattle AO position, his memory of the process generally is
not. 	The third sentence of Paragraph 13 states that the second
sentence describes the “process at the time and not specific to
the 	Seattle 	AO 	position.” 	(ECF 	No. 	94 	at 	4.) 	A 	statement 	about
general process does not directly contradict a failure of memory
in prior testimony about a specific process. That is especially
so when the deponent appears to speak about process generally at
other points in his prior deposition.
Defendant cites another sentence in Moody’s prior testimony
in 	which 	Moody 	says 	that 	“it 	looks 	like” 	the 	resume 	review
happened before the interview for the Seattle AO position. (ECF
No. 94 at 4.) This also does not directly contradict the second
and third sentences of paragraph 13 of Moody’s Declaration. 	As
stated 	above, 	the 	relevant 	sentences 	in 	the 	Moody 	Declaration
2 See, e.g., “Q. Why did you send your ratings to Mr. Green? A. Oh,
just so he would know. We kept the chief informed of every single
step along the way. Almost any vacancy that would have happened, I
would have sent it like that, copied the chief.” (ECF No. 75-7 at
28.)
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speak 	to 	the 	general 	process 	of 	candidate 	ranking, 	rather 	than
the specific ranking for the Seattle AO position.
Paragraph 	13 	does 	not 	directly 	contradict 	Moody’s 	prior
testimony.
5. Paragraph 14
Defendant 	argues 	that 	paragraph 	14 	of 	Moody’s 	Declaration
contradicts 	his 	prior 	testimony. 	(Id. 	at 	4-5.) 	That 	paragraph
consists 	of 	three 	sentences. 	Defendant 	argues 	that 	the 	first
two should not be considered for summary judgment. (Id. at 4-6.)
The 	first 	sentence 	reads, 	“At 	that 	time, 	I 	do 	not 	think 	I
even 	knew 	district 	leadership 	saw 	the 	ranking 	the 	team 	put
together.” 	(Id. 	at 	4.) 	Defendant 	claims 	that 	this 	directly
contradicts 	the 	following 	exchange 	in 	Moody’s 	deposition: 	“Q.
Why 	did 	you 	send 	your 	ratings 	to 	Mr. 	Green? 	A. 	Oh, 	just 	so 	he
would know. We kept the chief informed of every single step along
the 	way. 	Almost 	any 	vacancy 	that 	would 	have 	happened, 	I 	would
have 	sent 	it 	like 	that, 	copied 	the 	chief.” 	(Id.) 	These 	two
statements are not directly contradictory. 	In the Declaration,
Moody is opining about whether he thought the district leadership
saw the ranking. 	In his Deposition, he says that he intended to
send 	his 	ratings 	to 	leadership 	so 	that 	they 	would 	know. 	The
prior deposition also appears to address a general practice, but
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the Declaration appears to address a specific candidate. 	Moody
says 	in 	his 	deposition 	that 	he 	intended 	that 	leadership 	would
know his rankings, not that he knew whether they in fact saw his
rankings. 	Both statements can be simultaneously true. The first
sentence 	of 	paragraph 	14 	does 	not 	directly 	contradict 	Moody’s
prior testimony.
The second sentence reads, “I did not and still do not think
Green used the rankings in his decision process.” (Id.) Defendant
argues 	that 	two 	exchanges 	in 	Moody’s 	prior 	testimony 	directly
contradict 	this 	statement. 	(Id.) 	The 	first 	is 	an 	exchange 	that
reads: “Q. Did you have any conversations with Jacob Green after
you 	sent 	him 	these 	rankings 	about 	the 	Seattle 	AO 	selection? 	A.
I 	don’t 	remember 	at 	all.” 	(Id.) 	The 	second 	exchange 	reads: 	“Q.
You don’t know what importance [Green] placed on those ratings,
do 	you? 	A. 	No, 	I 	don’t.” 	(Id.) 	Defendant 	appears 	to 	argue 	that
these 	two 	exchanges 	directly 	contradict 	Moody’s 	Declaration
because he appears to lack a foundation for his belief that Green
did not use the rankings in his decision process. 	This argument
fails. 	Moody’s Declaration states an opinion, that he “did not
and still [does] not think Green used the rankings.” (Id.) That
is an opinion, not a statement of fact. 	Defendant does not cite
any 	prior 	testimony 	in 	which 	Moody 	offers 	a 	contradictory
opinion. 	Instead, Defendant cites testimony that may undermine
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the basis for Moody’s apparent belief. 	These two statements are
not 	directly 	contradictory. 	One 	can 	have 	an 	opinion 	about 	a
fact without having a well-founded basis for that opinion. 	The
second 	sentence 	of 	paragraph 	14 	of 	the 	Moody 	Declaration 	does
not directly contradict his prior testimony.
6. Paragraph 15
In 	first 	part 	of 	the 	first 	sentence 	in 	paragraph 	15 	in
Moody’s 	Declaration, 	Moody 	says 	that 	he 	does 	“not 	have 	any
personal 	knowledge 	about 	Green 	and 	any 	behavioral 	problems 	he
may 	have 	with 	his 	former 	AO 	Blue.” 	(Id. 	at 	5.) 	Defendant 	cites
a series of statements that detail some of the issues that arose
between 	Blue 	and 	Green 	as 	Moody 	heard 	them 	from 	Blue. 	(Id.)
Although 	the 	statements 	at 	first 	appear 	contradictory, 	Moody’s
Declaration makes a narrow point about personal knowledge Moody
had 	about 	behavioral 	problems 	Green 	had 	with 	Blue 	from 	the
Green’s 	perspective. 	This 	is 	confirmed 	by 	Moody’s 	prior
testimony 	that 	Defendant 	cites: 	“Q. 	Do 	you 	know 	if 	Jacob 	Green
had any problems with Steve Blue? A. I don’t know.” (Id.) Moody’s
statement in his Declaration appears to repeat a statement from
his 	prior 	testimony. 	The 	first 	part 	of 	the 	first 	sentence 	in
paragraph 	15 	does 	not 	directly 	contradict 	Moody’s 	prior
testimony.
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The rest of the first sentence in paragraph 15 reads, “I do
know that Blue did not receive any training for his position in
keeping track of budgets or expenditures in his position.” (Id.
at 	6.) 	Defendant 	cites 	statements 	that 	show 	Blue 	did 	receive
training - from Moody himself.3 (Id.) In his Declaration, Moody
may have been attempting to convey that Blue did not receive any
formal training before Moody intervened to give the training he
describes in his prior testimony. 	However, Moody makes no such
clarification. 	Plaintiff 	has 	made 	no 	argument 	about 	this
statement 	supporting 	her 	position 	that 	the 	statement 	is 	not
directly contradictory.4 (Id., and ECF No. 98 at 3.) This portion
of the first sentence of paragraph 15 is directly contradictory
and 	will 	not 	be 	considered 	for 	the 	purposes 	of 	ruling 	on
Defendant’s motion for summary judgment.
In the last sentence in paragraph 15, Moody says that, “As
I 	recall, 	Green 	preferred 	to 	do 	these 	tasks 	himself.” 	(Id. 	at
5.) 	“These 	tasks” 	refers 	to 	keeping 	track 	of 	budgets 	or
expenditures. 	Defendant 	cites 	prior 	testimony 	that 	appears 	to
show 	Green 	“wanted 	[Blue] 	to 	do” 	some 	of 	this 	work. 	(Id.)
3 In his prior testimony, Moody says, “I have also tried to train
Steve Blue” and “I began doing Skype sessions with Steve Blue to
train him on how to use UFMS, the unified financial management
system, to run his budget.” (ECF No. 94 at 6.)
4 Moody’s use of the words “any training” also cuts against a non-
contradictory interpretation.
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Although 	there 	is 	some 	tension 	between 	the 	Declaration 	and 	the
prior 	testimony, 	the 	two 	are 	not 	directly 	contradictory.
Moody’s 	Declaration 	speaks 	to 	Green’s 	general 	preference 	about
a 	type 	of 	work, 	not 	his 	specific 	practice 	of 	delegating 	the
budget 	and 	expenditure 	tasks 	at 	particular 	times. 	Defendant
cites 	no 	prior 	testimony 	in 	which 	Moody 	explicitly 	describes
Green’s general preferences about whom he wanted to do this work.
The 	final 	sentence 	in 	paragraph 	15 	of 	Moody’s 	Declaration 	does
not directly contradict his prior testimony.
The 	only 	directly 	contradictory 	statement 	in 	Moody’s
Declaration is: “I do know that Blue did not receive any training
for his position in keeping track of budgets or expenditures in
his position.” (Id. at 6.) That statement will not be considered
when the Court rules on Defendant’s motion for summary judgment.
None of the other statements is directly contradictory.
B. Sham Issues
“If…there 	is 	no 	direct 	contradiction, 	then 	the 	district
court 	should 	not 	strike 	or 	disregard 	that 	affidavit 	unless 	the
court 	determines 	that 	the 	affidavit 	constitutes 	an 	attempt 	to
create 	a 	sham 	fact 	issue.” 	Aerel, 	448 	F.3d 	at 	908 	(internal
quotations 	omitted). 	That 	occurs 	when 	the 	affidavit 	is 	“in
tension with…prior testimony.” 	Cox, 2025 WL 2603787, at *9. 	“In
that 	situation, 	the 	key 	question 	is 	whether 	the 	circumstances
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show that the party filed the affidavit merely to manufacture a
sham fact issue.” 	Id. (internal citations omitted).
The 	Sixth 	Circuit 	has 	held 	that 	a 	“useful 	starting 	point
for this inquiry is the nonexhaustive list of factors articulated
by 	the 	Tenth 	Circuit 	in 	Franks 	[v. 	Nimmo, 	796 	F.2d 	1230, 	1237
(10th 	Cir.1986)].” 	Aerel, 	448 	F.3d 	at 	908. 	Those 	factors
include 	“[1] 	whether 	the 	affiant 	was 	cross-examined 	during 	his
earlier 	testimony, 	[2] 	whether 	the 	affiant 	had 	access 	to 	the
pertinent 	evidence 	at 	the 	time 	of 	his 	earlier 	testimony 	or
whether 	the 	affidavit 	was 	based 	on 	newly 	discovered 	evidence,
and [3] whether the earlier testimony reflects confusion [that]
the 	affidavit 	attempts 	to 	explain.” 	Id. 	at 	909; 	see 	also 	In 	re
Davol, 	Inc./C.R. 	Bard, 	Inc., 	Polypropylene 	Hernia 	Mesh 	Prods.
Liab. 	Litig., 	No. 	2:18-CV-01509, 	2020 	WL 	3048190, 	at 	*8 	(S.D.
Ohio 	June 	8, 	2020) 	(applying 	the 	Franks 	factors). 	“A 	party 	who
is cross-examined but nevertheless offers unequivocal testimony,
only 	to 	be 	contradicted 	by 	a 	later 	affidavit, 	has 	indeed 	tried
to 	create 	a 	sham 	fact 	issue.” 	Miller 	v. 	Food 	Concepts 	Int'l,
LP, 	No. 	2:13-CV-00124, 	2017 	WL 	1163850, 	at 	*7 	(S.D. 	Ohio 	Mar.
29, 2017) (citing O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d
567, 593 (6th Cir. 2009)).
The 	nonexhaustive 	factors 	above 	slightly 	favor 	Defendant.
Moody was subject to cross-examination during his prior testimony
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(ECF 	No. 	94-1 	at 	12), 	and 	neither 	Plaintiff 	nor 	Moody 	contends
that 	Moody 	had 	access 	to 	new 	evidence. 	(ECF 	No. 	98.) 	Moody’s
testimony cited by Defendant was not generally “confused.” (ECF
No. 94 at 3-6.)
However, 	the 	Franks 	factors 	are 	“nonexhaustive.” 	Aerel,
448 F.3d at 908. 	Deponents are “under no obligation to volunteer
information 	not 	fairly 	sought 	by 	the 	questioner.” 	Id. 	at 	907.
In the absence of direct contradiction, the sham affidavit rule
requires 	“tension” 	between 	a 	contested 	affidavit 	and 	prior
testimony. 	Cox, 2025 WL 2603787, at *9.
Here, 	the 	non-contradictory 	portions 	of 	the 	Moody
Declaration 	are 	not 	sufficiently 	in 	tension 	with 	Moody’s 	prior
testimony 	to 	warrant 	striking 	them 	from 	consideration 	for
purposes 	of 	summary 	judgment. 	The 	Declaration 	is 	not 	a 	“sham
declaration” 	filed 	to 	manufacture 	“sham 	issues.” 	As 	discussed
above, the Declaration adds context to the case or offers Moody’s
opinions. 	When an affidavit adds information, “such an affidavit
fills a gap left open by the moving party and thus provides the
district 	court 	with 	more 	information, 	rather 	than 	less, 	at 	the
crucial summary judgment stage.” 	Aerel, 448 F.3d at 907 (holding
that 	an 	affidavit 	so 	described 	should 	not 	be 	considered 	a 	sham
affidavit).
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The 	Court 	today 	merely 	holds 	that 	it 	will 	consider 	those
parts of Moody's Declaration that do not directly contradict his
prior testimony.
IV. 	Conclusion
For the reasons above, the portion of the first sentence of
paragraph 15 in Moody’s Declaration that reads, “I do know that
Blue 	did 	not 	receive 	any 	training 	for 	his 	position 	in 	keeping
track 	of 	budgets 	or 	expenditures 	in 	his 	position” 	directly
contradicts 	his 	prior 	testimony. 	The 	Cout 	will 	not 	consider
that 	statement 	when 	the 	Court 	considers 	Defendant’s 	motion 	for
summary 	judgment. 	The 	Court 	will 	consider 	all 	other 	parts 	of
the 	Declaration. 	The 	Court 	GRANTS 	IN 	PART 	and 	DENIES 	IN 	PART
Defendant’s Motion.
So ordered this 29th day of January, 2026.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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