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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION
Plaintiff Pro Se v. THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA; CAROL GARRISON, individually and in her official UAB capacity; SHIRLEY SALLOW AY KAHN, individually and in her official UAB capacity; DALE TURNBOUGH, individually and in her official UAB capacity; PAM POWELL, individually and in her official UAB capacity; GARY MANS, individually and in his official UAB capacity; CHERYL E.H. LOCKE, individually and in her official UAB capacity; ANITA BONASERA, individually and in her official UAB capacity; THE BIRMINGHAM POLICE DEPARTMENT; FICTITIOUS DEFENDANTS A, B, C ... Defendants
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CIVIL ACTION NO. lO-AR-1271-S
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MOTION TO STRIKE AFFIDAVITS AND IMPOSE SANCTIONS Plaintiff Roger Shuler ("Shuler") moves this court to strike six of the seven affidavits filed by defendants in the above-styled case as made in bad faith--and to hold both the defendants and their counsel in contempt of court, pursuant to Rule 56(g) of the Federal Rules of Civil Procedure (FRCP). In support of this motion, Shuler states as follows: 1. Six of the seven affidavits filed by individual defendants in this case state, in some fashion or another, that Roger Shuler was not terminated at UAB because of his speech as presented on his blog, Legal Schnauzer.
2. Pam Powell states, under oath: "Shuler was not terminated based on retaliation, age discrimination, or his speech." 3. Anita Bonasera states, under oath: " ... I am not aware that any of the (sic) Shuler's speech on his blog or elsewhere was related to the decision to terminate Shuler's employment. " 4. Dale Turnbough states, under oath: "Shuler was not terminated based on retaliation, age discrimination, or his speech." 5. Cheryl E.H. Locke states, under oath: "I have no knowledge of retaliation, gender or age discrimination, or Shuler's speech on matters of public concern relating in any way to the decision to terminate his employment." 6. Carol Garrison states, under oath: "In making the decision to uphold Shuler's termination, I did not consider any speech on his part, not (sic) did I consider his gender or age in any way." 7. Shirley Salloway Kahn states, under oath: "I am not aware of Shuler's age, gender or speech playing any role whatsoever in the decision to terminate his employment." 8. Only the affidavit of Gary Mans does not make such a statement regarding Shuler's termination and his speech. 9. The gist of all six of the sworn statements above is that Shuler's speech on matters of public concern played no role in his termination at UAB. Indisputable evidence shows those statements to be false. At least two of the affiants clearly knew their statements were false, and the others should have known their statements were false. 10. When Shuler was placed on administrative leave in a meeting on May 7, 2008, Anita Bonasera repeatedly questioned him about his blog. He was told that he was not to report
to work while his computer usage was investigated, especially as it pertained to his personal blog. 11. One or two working days after being placed on administrative leave, and roughly a week before he would be fired on May 19, Shuler called Bonasera with several questions regarding the written response he was told he could file regarding the charges against him. Shuler tape recorded the conversation. 12. The following is a partial transcript of the conversation between Roger Shuler and Anita Bonasera. (Audio of the relevant portion of the conversation can be heard at
Shuler would be happy to provide the court
with the full audio.) 13. Here is a portion of the Roger Shuler (RS) and Anita Bonasera (AB) conversation:
RS: I told Dale Turnbough about this two weeks ago, and she never said a word about any of this. In fact, she said she was going to take care of it, she assured me absolutely that this had nothing to do with my blog-and about my blog. AB: It's not all about your blog. Your blog was an insignificant piece .... was a very small part of the bigger picture .... The blog ... then two weeks later I find out it's all
again, related to other non-work related
things. I didn't see those non-work related things. Pam (Powell) sat down with the computer people-and I don't know who else was there-and they reviewed what was
work related and what was non-work related. RS: And she's the determiner of that, even though she has told us ...
AB: She was able to determine what you were working on and whether it was related to your blog ... RS: Well, you just said it, it's all about my blog. You just said that. AB: That was a piece of it. Some of it was research related to your blog, from my understanding. I understand there were some things about Siegelman, screens up about Don Siegelman, things that they saw you doing that they consider to be research for your blog because then that was topics that you wrote about on your blog. RS: Those are also news articles that we are supposed to keep up with, about Alabama, stuff in the news.
14. Anita Bonasera and Pam Powell clearly know that the statements from their affidavits, cited above, are false and made in bad faith. The statements also might constitute perjury. 15. In item No.8 of her affidavit, Powell discusses the investigation referenced by Bonasera above and states: "The results of that investigation led to (Shuler'S) termination." 16. What was the driving force behind that investigation? Bonasera's tape-recorded comments make it clear: Powell was obsessed with information regarding Shuler's personal blog, even though UAB's own IT expert, Sean Maher, testified later at a grievance hearing that Shuler never had written a word of his blog at work. 17. Not only was Powell obsessed with Shuler's blog, she was obsessed with specific content on Shuler's blog, about the prosecution of former Alabama Governor Don Siegelman. Bonasera clearly states that is what Powell was looking for, and that goes directly to Shuler's free-speech rights under the First Amendment of the u.S. constitution.
18. Powell and Bonasera have knowingly made false statements to this court regarding the real reasons Shuler was investigated and terminated at UAB. 19. Dale Turnbough states in her affidavit that she made the decision to terminate Shuler, and in item No.5, says it was based largely on Powell's input. In item No.7, Turnbough admits that she signed off on the investigation referenced above. Given that Turnbough was Powell's direct superior, Turnbough had every reason to know about the real motives behind the Shuler investigation and termination. That means Turnbough also has knowingly made a false statement to this court. 20. Cheryl E.H. Locke was Bonasera's direct superior and had every reason to know about the real motives behind the Shuler investigation and termination. has knowingly made a false statement to this court. 21. President Carol Garrison and Vice President Shirley Salloway Kahn, in their affidavits, essentially claim ignorance of what was taking place underneath them. Shuler worked at UAB for 19 years, is familiar with how the university'S administration works, and submits that it is highly unlikely that Turnbough would take the actions described in her affidavit without the knowledge of senior administrators above her. It's impossible to determine, without further inquiry, if Garrison and Kahn have made false statements to this court. But their affidavits should be stricken as immaterial, given their claims of ignorance about Powell and Turnbough's actions. 22. The affidavits of Powell, Bonasera, Turnbough, and Locke should be stricken as made in bad faith, and the defendants should be held in contempt of court. They also should be referred for a perjury investigation. Their attorney, Lisa Huggins, also should be held in contempt, pursuant to Rule 56(g) FRCP. That means Locke also
WHEREFORE, premises considered, Shuler moves this court to strike affidavits and impose sanctions, pursuant to Rule 56(g) FRep.
Respectfully submitted, this
Roger Shuler, Pro Se
Roger Shuler 5204 Logan Drive Birmingham, Alabama 35242
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