Jablonski v. Special Counsel, Inc.

Background

Terri Jablonski sued ADO Professional Solutions, Inc., formerly known as Special Counsel, Inc. (“SCI”), alleging, among other claims, age discrimination under the Age Discrimination in Employment Act, the New York State Human Rights Law, and the New York City Human Rights Law. Jablonski alleged that SCI prevented recruiters from acting on her applications by placing a negative “NMQ,” meaning “not minimally qualified,” reference under her name and then hiring younger applicants instead.

The court was considering SCI’s motion for summary judgment. In opposition, Jablonski submitted declarations from herself and her sister, Maria Jablonski, who represents her in the case. SCI filed two motions to strike portions of the summary-judgment record. One sought to exclude Maria Jablonski’s declaration under Federal Rule of Civil Procedure 37(c)(1), which can bar a party from using evidence that was not properly disclosed during discovery. The other challenged statements in Terri Jablonski’s declaration as contradictory to her deposition testimony or inadmissible hearsay.

Maria Jablonski’s Declaration

The court granted SCI’s motion to strike Maria Jablonski’s declaration. During discovery, Terri Jablonski had not identified Maria Jablonski as a person with discoverable information. Terri Jablonski also opposed SCI’s efforts to depose her sister and represented that Maria Jablonski had no personal knowledge of the issues in the case. Maria Jablonski likewise represented to the court that she was not relevant, was not a fact witness, and was not testifying.

The declaration later submitted by Maria Jablonski contained factual assertions about, among other things, her employment by SCI, evidence produced by SCI, Terri Jablonski’s qualifications, and alleged retaliatory motive. The court found that Terri Jablonski had not shown that the failure to disclose Maria Jablonski was substantially justified or harmless. It concluded that the late disclosure prejudiced SCI by preventing it from investigating the new evidence through a deposition or otherwise. The court described the conduct as flagrant bad faith and the type of unfair surprise that Rule 37(c)(1) is designed to prevent. It ordered that the declaration not be considered in deciding summary judgment.

Terri Jablonski’s Declaration

The court granted in part and denied in part SCI’s motion concerning Terri Jablonski’s declaration under the “sham affidavit” rule. That rule generally prevents a party from creating a factual dispute at summary judgment by submitting a declaration that directly and unequivocally contradicts the party’s earlier deposition testimony.

The court declined to strike the statement in paragraph 3 that Jablonski met with an SCI employee on January 30, 2013. At her deposition, Jablonski had said that she did not remember the specific date of the meeting. The court found that the declaration added detail to incomplete testimony rather than directly and unequivocally contradicting it.

The court did strike, or refuse to consider, certain statements in paragraph 7. Jablonski’s assertions that she had worked as a paralegal since 1991 and had gathered and drafted responses to law firms’ inquiries while working at the Cosmetic Center conflicted with her deposition testimony and resume. The court also excluded her statements about how long she had worked at Holland & Knight, Flemming Zulack & Williamson, Kramer Levin, and Chase because those durations conflicted with her deposition testimony and a resume that she had confirmed was accurate.

Exhibit 4 and Disposition

SCI separately asked the court to strike Exhibit 4 as hearsay and lacking a proper foundation. The court denied that motion. It explained that a separate motion to strike is unnecessary for summary-judgment material that cannot be presented in admissible form at trial; instead, the court could address the evidentiary arguments when analyzing the summary-judgment motion. The court therefore denied the request to strike Exhibit 4 while reserving the evidentiary issues for the summary-judgment analysis.

Judge Analisa Torres concluded that SCI’s motions to strike were granted in part and denied in part. Specifically, the motion to strike Maria Jablonski’s declaration was granted; the motion concerning specific assertions in Terri Jablonski’s declaration was granted in part and denied in part; and the motion to strike Exhibit 4 was denied. The Clerk was directed to strike ECF No. 325 from the docket and terminate the motions at ECF Nos. 335 and 337.