NOT RECOMMENDED FOR PUBLICATION File Name: 23a0229n.06
No. 22-1805
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 16, 2023 ) DEBORAH S. HUNT, Clerk JOSE ANTUNES, ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN GERDAU MACSTEEL, INC., et al., ) Defendants-Appellees. ) OPINION )
Before: BOGGS, LARSEN, and NALBANDIAN, Circuit Judges.
BOGGS, Circuit Judge. Jose Antunes worked for Gerdau MacSteel, Inc. (“MacSteel”). Af-
ter MacSteel fired Antunes, Antunes sued, alleging breach of contract and employment discrimi-
nation under state and federal law. He claimed that MacSteel discriminated against him based on
his age, alienage, national origin, and sex. The district court granted MacSteel’s motion for sum-
mary judgment in full. Antunes appeals, and we affirm.
Antunes has waived any challenge to the district court’s disposition of his alienage and
national-origin claims because his briefs advert to these issues “in a perfunctory manner, unac-
companied by some effort at developed argumentation.” Doe v. Mich. State Univ., 989 F.3d 418,
425 (6th Cir. 2021) (citation omitted). As to his remaining claims,1 after careful review of the
record, the applicable law, and the parties’ briefs, we are convinced that the district court did not
1 In discussing Antunes’s claims of alienage and national-origin discrimination, the district court suggested that private alienage discrimination might not violate 42 U.S.C. § 1981. We have not ruled on the issue, see Rodrigues v. Martin Marietta Corp., 829 F.2d 39, 1987 WL 44766, at *2 (6th Cir. 1987) (per curiam) (unpublished table decision), and do not do so in this case. No. 22-1805, Antunes v. Gerdau MacSteel, Inc.
err and that the opinion issued by the district court thoroughly addresses the issues presented. Thus,
issuing a full written opinion would serve no useful purpose. Accordingly, we affirm the district
court’s judgment and adopt the reasoning of its Opinion & Order dated August 24, 2022, with one
exception.
The district court did not fully explain its decision to strike all but four paragraphs of an
affidavit that Antunes submitted in response to MacSteel’s motion for summary judgment. The
court found that the excluded material contradicted Antunes’s prior testimony, contained conclu-
sions of law and ultimate fact, and was not made on personal knowledge. However, while the
district court correctly excluded most of the affidavit, it also excluded some admissible material.
We review the decision to strike portions of an affidavit for abuse of discretion. Johnson v.
Ford Motor Co., 13 F.4th 493, 500 (6th Cir. 2021). However, we need reverse only if the district
court’s error was a necessary basis for the grant of summary judgment. See Upshaw v. Ford Motor
Co., 576 F.3d 576, 593 (6th Cir. 2009) (considering harmless any error in district court’s decision
to strike entire affidavit, rather than only inadmissible portions, because excluded portions were
cumulative of deposition testimony); Brainard v. Am. Skandia Life Assurance Corp., 432 F.3d 655,
667 (6th Cir. 2005) (applying harmless-error analysis to district court’s failure to exclude inadmis-
sible material).
An affidavit used to oppose a motion for summary judgment “must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or declar-
ant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Conclusions of law or
ultimate fact are not facts and should be disregarded. F.R.C. Int’l, Inc. v. United States, 278 F.3d
641, 643 (6th Cir. 2002). An affiant lacks personal knowledge of information obtained from the
-2- No. 22-1805, Antunes v. Gerdau MacSteel, Inc.
depositions of others or during discovery. Stipkala v. Am. Red Cross, 215 F.3d 1327, 2000 WL
712378, at *6 (6th Cir. 2000) (per curiam) (unpublished table decision).
Moreover, a party opposing summary judgment may not submit an affidavit that contra-
dicts its earlier sworn testimony. France v. Lucas, 836 F.3d 612, 622 (6th Cir. 2016). This court
takes a “relatively narrow” view of what counts as contradiction. Reich v. City of Elizabethtown,
945 F.3d 968, 976 (6th Cir. 2019) (quoting Briggs v. Potter, 463 F.3d 507, 513 (6th Cir. 2006)). If
a deponent is not directly questioned about an issue, a later affidavit may “fill[] a gap left open by
the moving party.” Ibid. (quoting Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 907 (6th Cir.
2006)). But if a deponent is “asked specific questions about, yet denie[s] knowledge of, the mate-
rial aspects of her case, the material allegations in her affidavit directly contradict her deposition.”
Ibid. (alteration in original) (quoting Powell-Pickett v. A.K. Steel Corp., 549 F. App’x 347, 353
(6th Cir. 2013)).
Finally, if the district court can distinguish between facts alleged on personal knowledge
and improper material, it must admit the former and strike the latter. See Ondo v. City of Cleveland,
795 F.3d 597, 605 (6th Cir. 2015); F.R.C. Int’l, Inc., 278 F.3d at 643. The court “should use a
scalpel, not a butcher knife.” Johnson v. Donahoe, 642 F. App’x 599, 602 (6th Cir. 2016) (quoting
Upshaw, 576 F.3d at 593) (cleaned up).
Antunes’s opening brief argues only that he was not required, in his affidavit, to present
evidence in admissible form and that his affidavit does not contradict his deposition testimony.
Because Antunes waited until his reply brief to identify any specific paragraph that the district
court should have admitted, we deem waived any challenge to the district court’s ruling as to ad-
missibility. Clemente v. Vaslo, 679 F.3d 482, 497 (6th Cir. 2012). But Antunes is correct that the
one purported contradiction that the district court identified does not justify the district court’s
-3- No. 22-1805, Antunes v. Gerdau MacSteel, Inc.
decision to strike the offending paragraph. Since Antunes raised this contradiction in his opening
brief, we consider it here.
At his deposition, Antunes was asked about MacSteel’s offer of a voluntary-separation
package. When asked about the meeting at which MacSteel offered Antunes and other employees
the package, Antunes testified that he “wasn’t paying much attention” because he never considered
accepting. He also testified that he put the written offer in his desk and forgot about it. In his
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NOT RECOMMENDED FOR PUBLICATION File Name: 23a0229n.06
No. 22-1805
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 16, 2023 ) DEBORAH S. HUNT, Clerk JOSE ANTUNES, ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN GERDAU MACSTEEL, INC., et al., ) Defendants-Appellees. ) OPINION )
Before: BOGGS, LARSEN, and NALBANDIAN, Circuit Judges.
BOGGS, Circuit Judge. Jose Antunes worked for Gerdau MacSteel, Inc. (“MacSteel”). Af-
ter MacSteel fired Antunes, Antunes sued, alleging breach of contract and employment discrimi-
nation under state and federal law. He claimed that MacSteel discriminated against him based on
his age, alienage, national origin, and sex. The district court granted MacSteel’s motion for sum-
mary judgment in full. Antunes appeals, and we affirm.
Antunes has waived any challenge to the district court’s disposition of his alienage and
national-origin claims because his briefs advert to these issues “in a perfunctory manner, unac-
companied by some effort at developed argumentation.” Doe v. Mich. State Univ., 989 F.3d 418,
425 (6th Cir. 2021) (citation omitted). As to his remaining claims,1 after careful review of the
record, the applicable law, and the parties’ briefs, we are convinced that the district court did not
1 In discussing Antunes’s claims of alienage and national-origin discrimination, the district court suggested that private alienage discrimination might not violate 42 U.S.C. § 1981. We have not ruled on the issue, see Rodrigues v. Martin Marietta Corp., 829 F.2d 39, 1987 WL 44766, at *2 (6th Cir. 1987) (per curiam) (unpublished table decision), and do not do so in this case. No. 22-1805, Antunes v. Gerdau MacSteel, Inc.
err and that the opinion issued by the district court thoroughly addresses the issues presented. Thus,
issuing a full written opinion would serve no useful purpose. Accordingly, we affirm the district
court’s judgment and adopt the reasoning of its Opinion & Order dated August 24, 2022, with one
exception.
The district court did not fully explain its decision to strike all but four paragraphs of an
affidavit that Antunes submitted in response to MacSteel’s motion for summary judgment. The
court found that the excluded material contradicted Antunes’s prior testimony, contained conclu-
sions of law and ultimate fact, and was not made on personal knowledge. However, while the
district court correctly excluded most of the affidavit, it also excluded some admissible material.
We review the decision to strike portions of an affidavit for abuse of discretion. Johnson v.
Ford Motor Co., 13 F.4th 493, 500 (6th Cir. 2021). However, we need reverse only if the district
court’s error was a necessary basis for the grant of summary judgment. See Upshaw v. Ford Motor
Co., 576 F.3d 576, 593 (6th Cir. 2009) (considering harmless any error in district court’s decision
to strike entire affidavit, rather than only inadmissible portions, because excluded portions were
cumulative of deposition testimony); Brainard v. Am. Skandia Life Assurance Corp., 432 F.3d 655,
667 (6th Cir. 2005) (applying harmless-error analysis to district court’s failure to exclude inadmis-
sible material).
An affidavit used to oppose a motion for summary judgment “must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or declar-
ant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Conclusions of law or
ultimate fact are not facts and should be disregarded. F.R.C. Int’l, Inc. v. United States, 278 F.3d
641, 643 (6th Cir. 2002). An affiant lacks personal knowledge of information obtained from the
-2- No. 22-1805, Antunes v. Gerdau MacSteel, Inc.
depositions of others or during discovery. Stipkala v. Am. Red Cross, 215 F.3d 1327, 2000 WL
712378, at *6 (6th Cir. 2000) (per curiam) (unpublished table decision).
Moreover, a party opposing summary judgment may not submit an affidavit that contra-
dicts its earlier sworn testimony. France v. Lucas, 836 F.3d 612, 622 (6th Cir. 2016). This court
takes a “relatively narrow” view of what counts as contradiction. Reich v. City of Elizabethtown,
945 F.3d 968, 976 (6th Cir. 2019) (quoting Briggs v. Potter, 463 F.3d 507, 513 (6th Cir. 2006)). If
a deponent is not directly questioned about an issue, a later affidavit may “fill[] a gap left open by
the moving party.” Ibid. (quoting Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 907 (6th Cir.
2006)). But if a deponent is “asked specific questions about, yet denie[s] knowledge of, the mate-
rial aspects of her case, the material allegations in her affidavit directly contradict her deposition.”
Ibid. (alteration in original) (quoting Powell-Pickett v. A.K. Steel Corp., 549 F. App’x 347, 353
(6th Cir. 2013)).
Finally, if the district court can distinguish between facts alleged on personal knowledge
and improper material, it must admit the former and strike the latter. See Ondo v. City of Cleveland,
795 F.3d 597, 605 (6th Cir. 2015); F.R.C. Int’l, Inc., 278 F.3d at 643. The court “should use a
scalpel, not a butcher knife.” Johnson v. Donahoe, 642 F. App’x 599, 602 (6th Cir. 2016) (quoting
Upshaw, 576 F.3d at 593) (cleaned up).
Antunes’s opening brief argues only that he was not required, in his affidavit, to present
evidence in admissible form and that his affidavit does not contradict his deposition testimony.
Because Antunes waited until his reply brief to identify any specific paragraph that the district
court should have admitted, we deem waived any challenge to the district court’s ruling as to ad-
missibility. Clemente v. Vaslo, 679 F.3d 482, 497 (6th Cir. 2012). But Antunes is correct that the
one purported contradiction that the district court identified does not justify the district court’s
-3- No. 22-1805, Antunes v. Gerdau MacSteel, Inc.
decision to strike the offending paragraph. Since Antunes raised this contradiction in his opening
brief, we consider it here.
At his deposition, Antunes was asked about MacSteel’s offer of a voluntary-separation
package. When asked about the meeting at which MacSteel offered Antunes and other employees
the package, Antunes testified that he “wasn’t paying much attention” because he never considered
accepting. He also testified that he put the written offer in his desk and forgot about it. In his
affidavit, by contrast, Antunes stated that he believed that MacSteel had offered him voluntary
separation because MacSteel intended to fire him and hoped that he would accept. Since Antunes
was not questioned at his deposition about any conclusions that he drew from MacSteel’s offer, his
affidavit filled a gap left open by MacSteel. Nor does Antunes’s deposition testimony that he forgot
about the written offer necessarily contradict his later claim that he believed that MacSteel wanted
to fire him when he received the offer. This portion of Antunes’s affidavit thus does not satisfy our
“relatively narrow definition of contradiction.” Reich, 945 F.3d at 976 (quoting Briggs, 463 F.3d
at 513).
Moreover, although Antunes did not raise the issue until his reply brief, the district court
also abused its discretion in striking other portions of his affidavit that were admissible. For ex-
ample, the district court struck a paragraph that detailed to whom Antunes reported at MacSteel.
This was clearly information based on Antunes’s personal knowledge. Simply put, the district court
abused its discretion because it merely gave examples of certain inadmissible material rather than
specifically delineating which portions of the affidavit it was excluding and why. See Brainard,
432 F.3d at 667. If a district court cannot distinguish between admissible and inadmissible portions
of an affidavit, it must strike the affidavit in its entirety. See Ondo, 795 F.3d at 605. But if the court
strikes some portions of an affidavit and retains others, it must explain itself.
-4- No. 22-1805, Antunes v. Gerdau MacSteel, Inc.
That said, any error that the district court committed here was harmless. Most of the ex-
cluded paragraphs were manifestly not based on personal knowledge since they referred to infor-
mation that Antunes obtained during discovery. Other parts of the affidavit, especially sections that
discuss MacSteel’s decision not to hire Antunes for a new controller position, contained legal con-
clusions and speculation. And those few paragraphs that the district court improperly excluded
duplicated other evidence in the summary-judgment record that the district considered in its ruling.
We therefore AFFIRM the judgment of the district court and adopt its opinion, with the
above addition, as the opinion of this court.2
2 After the district court issued its opinion, we decided Levine v. DeJoy, 64 F.4th 789 (6th Cir. 2023). In that case, we reversed a grant of summary judgment in an employment-discrimination case that hinged on the plaintiff’s relative qualifications. Id. at 803. We reasoned that the plaintiff could raise a triable issue as to pretext because she had provided evidence that she was “arguably more qualified” than the successful candidate. Id. at 798. But we also reaffirmed our rule that, to survive summary judgment on this basis, an employee must create a triable issue that he is “sig- nificantly better qualified,” id. at 798–99, 801, and explained that our use of the word “arguably” simply referred to the summary-judgment standard, id. at 801 n.8. But see id. at 803 (Thapar, J., dissenting) (arguing that the majority in Levine changed the applicable standard from “plainly” to “arguably” superior). Here, the district court held, based on the evidence, that there was no genuine issue that Antunes was a “plainly superior” candidate for promotion. It follows that no reasonable jury could conclude that he was “significantly better qualified,” either.
-5-