McCrimon v. Inner City Nursing Home Inc.
Filing
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Order. Defendants' Motion for Summary Judgment (Related Doc # 11 ) is granted in part and denied in part. Plaintiff's Motion to Strike (Related Doc # 12 ) is denied. Plaintiff's Motion for Extension of Time (Related Doc # 13 ) is denied as moot. Therefore, the only claim that remains is Plaintiff's claim for violation of COBRA. Judge Solomon Oliver, Jr on 9/30/2011.(H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
PEARL McCRIMON,
)
)
Plaintiff
)
)
v.
)
)
INNER CITY NURSING HOME, INC.,
)
dba, FAIRFAX HEALTH CARE CENTER, )
)
Defendant
)
Case No.: 1:10 CV 392
JUDGE SOLOMON OLIVER, JR.
ORDER
Currently pending before the court in the above-captioned case are Defendant Inner City
Nursing Home, Inc.’s (“Defendant”) Motion for Summary Judgment (ECF No. 11), Plaintiff Pearl
McCrimon’s (“Plaintiff”) Motion to Strike Defendant’s Motion for Summary Judgment (ECF
No.12), and Plaintiff’s Motion for Extension of Time Until 10/14/2010 to File Supplemental
Affidavits (ECF No. 13). For the reasons stated herein, Defendant’s Motion for Summary Judgment
is granted in part and denied in part, Plaintiff’s Motion to Strike is denied, and Plaintiff’s Motion for
Extension of Time Until 10/14/2010 to File Supplemental Affidavits is denied as moot inasmuch as
affidavits supporting Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment were filed
in a timely manner.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff filed the instant suit against Defendant on February 22, 2010. Plaintiff alleges that
Defendant violated the Fair Labor Standards Act (“FLSA”), the Ohio Minimum Fair Wage Standards
Act (“OMFWSA”), the Comprehensive Omnibus Budget Reconciliation Act of 1985 (“COBRA”),
and Ohio Worker’s Compensation law. (Id. at 2-4.) Defendant filed a Motion for Summary
Judgment on August 30, 2010. (ECF No. 11.) Thereafter, Plaintiff filed a Motion to Strike
Defendant’s Motion for Summary Judgment, alleging that Defendant’s Motion is based on hearsay
evidence. (Pl.’s Mot. to Strike, ECF No. 12, at 1.) On September 14, 2010, Plaintiff filed a Motion
for an Extension of thirty days to obtain an affidavit for her Brief in Opposition to Defendant’s
Motion for Summary Judgment. (ECF No. 13.) However, she filed said affidavit with her
opposition in a timely manner on September 28, 2010. (ECF No. 14.) Plaintiff also corrected her
error in providing an unsigned affidavit by providing a signed affidavit the next day, on
September 29, 2010, also timely filed, responding to Defendant’s Motion for Summary Judgment.
(See ECF No. 18.) Consequently, the court hereby denies her Motion for an Extension (ECF No. 13),
as moot. Therefore, the remaining motions before the court are Defendant’s Motion for Summary
Judgment and Plaintiff’s Motion to Strike Defendant’s Motion for Summary Judgment.
Defendant, Inner City Nursing Home, Inc., is a family-owned and operated residential
nursing and assisted living facility that provides twenty-four hour skilled nursing and medical care
to approximately one hundred elderly residents. (Melvin Pye ( “Pye”) Decl. at 1, ECF No. 11-1.)
Pye serves as the President and Chief Executive Officer of Fairfax Health Care Center. (Id.)
Francine Bradshaw (“Bradshaw”) served as Plaintiff’s supervisor during her tenure at Fairfax.
(McCrimon Dep. at 24, ECF No. 11-7.)
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Plaintiff was employed by Defendant at Fairfax Health Care Center from around March 25,
1997, until December 1, 2009, as a beautician and State Tested Nurse’s Aid (“STNA”). (Pye Decl.
at 1, ECF No. 11-1.) Plaintiff’s duties included bathing residents, serving meals, cleaning, doing
laundry, accompanying residents to appointments, and styling residents’ hair. (McCrimon Dep. at
26-32.) Additionally, Plaintiff performed secretarial duties at a nursing station. (Id. at 33.) Plaintiff
earned the same rate of pay for each of her work duties. (Id. at 34.)
A time clock was used to record when employees clocked in and out of work. (Id. at 71.)
When the time clock malfunctioned or when employees neglected to clock in, employees submitted
“Missed Swipe Sheets” to record hours worked. (Id. at 74.) Plaintiff admits that she submitted
Missed Swipe Sheets on several occasions. (Id. at 74.) Once submitted, employees are paid for all
of the hours recorded on the Missed Swipe Sheet. (Mims Decl. at 1, ECF No. 11-10; Edwards Decl.
at 2, ECF No. 11-11; Wesson Decl. at 2, ECF No. 11-12.) However, Plaintiff alleges that over the
years Bradshaw regularly asked Plaintiff to clock out and continue to work overtime hours.
(McCrimon Aff. at 1, ECF No. 17-1.) Further, Plaintiff also maintains that Bradshaw instructed
Plaintiff to record these overtime hours on slips of paper and submit them in an envelope. (Id.)
Plaintiff contends that she consistently performed work in excess of forty hours per week, submitted
the papers to Ms. Bradshaw, and was not properly paid. (Id.) Defendant maintains that Plaintiff only
occasionally worked overtime and she was accurately paid for all overtime earned. (Pye Decl. at 2,
ECF No. 11-1.)
During her employment with Defendant, Plaintiff was injured four times, and filed four
Worker’s Compensation claims. (Mot. for Summ. J. at 11, ECF No. 12.) Her fourth injury occurred
on or about February 6, 2006. (McCrimon Dep. at 176-77, ECF No. 11-7.) Plaintiff fell down the
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stairs, injuring her hand, wrist and shoulder. (Id.) As a result, Plaintiff was absent from work for
a long period of time. (Id. at 177-78.) Plaintiff filed her fourth Workers’ Compensation claim in
2006 for these injuries. (Pye Decl. at 3, ECF No. 11-1.) Eventually, Plaintiff returned to work. She
was terminated in December 2009. (Id. at 6.) Plaintiff alleges that her termination was the result
of her filing a Worker’s Compensation claim. Defendant contends that Plaintiff was terminated for
a legitimate business reason.
Although Plaintiff contests the validity of her corrective action and counseling records,
Defendant documented work-related complaints against Plaintiff between 2000 and 2009. (Pye
Decl. at 4-5, ECF No. 11-1.) On many occasions, Plaintiff was verbally counseled about her actions
or issued written warnings. (Id.) However, Plaintiff was never disciplined or terminated, and was
given repeated opportunities to improve her conduct. (Id. at 5.) Each time Plaintiff was confronted
about her behavior reported by Defendant’s employees, she completely denied the occurrence of any
misconduct. (Id.) Around November 2009, the family of resident Cozette Wade (“Wade”) withdrew
her from the facility without warning. (Id.) Subsequently, Pye received a letter written by Wade’s
sister, Leatrice Robinson (“Robinson”). (Robinson Letter at 1, ECF No. 11-14.) In her letter,
Robinson informed Pye that Wade had been removed because of Plaintiff’s inappropriate treatment
of Wade. (Id.) According to Robinson, Plaintiff had told Wade that her family had abandoned her;
that her family wanted to put her in a mental institution; that her caretaker was only after Wade’s
money; and Plaintiff had attempted to obtain the keys to Wade’s house. (Id.) Robinson was
outraged by Plaintiff’s alleged actions and expressed her intent to speak to an attorney about taking
legal action against either Defendant and/or Plaintiff. (Id.) Upon reviewing Robinson’s letter, Pye
terminated Plaintiff. Defendant contends that Pye had a legitimate, good faith belief that Plaintiff
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had abused a resident, and therefore, her termination was proper. (Pye Decl. at 5-6, ECF No. 11-1.)
Plaintiff denies the allegations contained in Robinson’s letter. She maintains that Defendant’s
argument that it relied on Robinson’s letter in firing her was a pretext for the real reason for her
termination, her Worker’s Compensation claim. (McCrimon Aff. at 1, ECF No. 17-1; Pl.’s Br. in
Opp’s to Def.’s Mot. for Supp. J. at 4, ECF No. 17.) Plaintiff also contends that Defendant engaged
in a pattern of retaliatory actions after events surrounding her Worker’s Compensation claim, which
ended with her termination. (Pl.’s Br. in Opp’s to Def.’s Mot. for Supp. J. at 5, ECF No. 17.)
II. MOTION FOR SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) governs summary judgment motions and provides that:
A party may move for summary judgment, identifying each claim or
defense–or the part of each claim or defense–on which summary
judgment is sought. The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law. . . .
A party asserting there is no genuine dispute as to any material fact or that a fact is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
FED . R. CIV . P. 56(c)(1).
In reviewing summary judgment motions, this court must view the evidence in a light most
favorable to the non-moving party to determine whether a genuine issue of material fact exists.
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Adickes v. S.H. Kress & Co., 398 U.S. 144, 153 (1970); White v. Turfway Park Racing Ass'n, Inc.,
909 F.2d 941, 943-44 (6th Cir. 1990). A fact is “material” only if its resolution will affect the
outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination
of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards.
Thus, in most cases the court must decide “whether reasonable jurors could find by a preponderance
of the evidence that the [non-moving party] is entitled to a verdict.” Id. at 252. However,
“[c]redibility judgments and weighing of the evidence are prohibited during the consideration of a
motion for summary judgment.” Ahlers v. Scheibil, 188 F.3d 365, 369 (6th Cir. 1999).
The moving party has the burden of production to make a prima facie showing that it is
entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). If the burden of
persuasion at trial would be on the non-moving party, then the moving party can meet its burden of
production by either: (1) submitting “affirmative evidence that negates an essential element of the
nonmoving party’s claim”; or (2) demonstrating “to the court that the nonmoving party’s evidence
is insufficient to establish an essential element of the nonmoving party’s claim.” Id.
If the moving party meets its burden of production, then the non-moving party is under an
affirmative duty to point out specific facts in the record which create a genuine issue of material fact.
Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992). The non-movant must show “more
than a scintilla of evidence to overcome summary judgment”; it is not enough to show that there is
slight doubt as to material facts. Id. Moreover, “the trial court no longer has a duty to search the
entire record to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford
& Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029,
1034 (D.C. Cir. 1988)).
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III. LAW AND ANALYSIS
A. Defendant’s Motion for Summary Judgment
1. Violations of FLSA and OMFWSA
Plaintiff alleges that while employed by Defendant, she consistently performed work in
excess of forty hours per week without receiving “time and one half” overtime pay in violation of
FLSA and OMFWSA. Defendant argues that Plaintiff has not met her burden of proof for her unpaid
overtime claim.
Under FLSA, employees are entitled to compensation for “employment in excess of [forty
hours per week] at a rate not less than one and one-half times” the employee’s regular rate of pay.
29 U.S.C. § 207(a)(1). The OMFWSA has an identical requirement for overtime pay. Ohio Rev.
Code § 4111.03(A); Simmons v. Wal-mart Assocs., Inc., No. 2:04-cv-51, 2005 U.S. Dist. LEXIS
21772, at *27 (S.D. Ohio July 19, 2005). Because FLSA and OMFWSA have the same overtime
provisions, courts evaluate these claims together. Simmons, 2005 U.S. Dist. LEXIS 21772 at *26.
The Sixth Circuit has held that an employee alleging a failure to pay overtime claim under FLSA
must prove that she “performed work for which [she] was not properly compensated” by a
preponderance of the evidence. Myers v. Copper Cellar Corp., 192 F.3d 546, 551 (6th Cir. 1999)
(quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946)). Employees can do
so through the use of their employer’s records. Employers have a duty to maintain records of an
employee’s wages and hours under 29 U.S.C. § 211(c), as employees seldom keep records of their
wages and hours themselves. See Simmons, 2005 U.S. Dist. Lexis 21772 at *28. The Supreme Court
explained the following regarding the employee’s burden:
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[w]hen the employer has kept proper and accurate records the employee
may easily discharge his burden by securing the production of those
records. But where the employer’s records are inaccurate or inadequate
and the employee cannot offer convincing substitutes a more difficult
problem arises. The solution, however, is not to penalize the employee
by denying him any recovery on the ground that he is unable to prove
the precise extent of uncompensated work . . . . In such a situation we
hold that an employee has carried out his burden if he proves that he
has in fact performed work for which he was improperly compensated
and if he produces sufficient evidence to show the amount and extent
of that work as a matter of just and reasonable inference.
Anderson, 328 U.S. at 687.
Assuming that the records are inaccurate, Plaintiff still has not met her burden, to demonstrate
that she has been inadequately compensated. Plaintiff includes an affidavit from a former employee
of Defendant, Ouedia Finch (“Finch”), who alleges that the time clock often did not work properly,
hours were not properly recorded, and that they were told to write the shorted hours on a slip of
paper, but the hours frequently did not show up on their paychecks. (ECF No. 18.) However, Finch
fails to state how she knows Plaintiff, how she knows Plaintiff’s hours in particular were improperly
recorded as a result of the allegedly malfunctioning time clock, or how she knows Plaintiff was not
accurately paid for all of her hours worked. Rule 56(c) of the Federal Rules of Civil Procedure
requires an affidavit used to oppose a motion for summary judgment to be “made based on personal
knowledge, and show that the affiant or declarant is competent to testify on the matters stated.” As
indicated above, Finch’s affidavit meets neither of these requirements. Furthermore, Plaintiff’s own
affidavit is insufficient. In her affidavit, Plaintiff discusses that Bradshaw was aware she “worked
uncompensated overtime on many occasions” and that Plaintiff would have to stay over her regular
shift on many occasions, but “was usually not compensated for this extra shift.” (McCrimon Aff. ¶¶
11, 12, ECF No. 17-1.) Plaintiff has not produced any evidence demonstrating that she was not
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properly compensated for overtime over a period of several years. Although Plaintiff alleges that she
documented her overtime hours on pieces of paper and submitted them to Bradshaw, Plaintiff has
not provided copies or any records of these slips of paper.
In Simmons, although the plaintiff alleged that he worked off the clock many times, he
“fail[ed] to support his assertions with any additional evidence” and “fail[ed] to identify a single
specific day on which this occurred.” Simmons, 2005 U.S. Dist. LEXIS 21772, at *29-30.
Ultimately, the court held that the plaintiff’s “bald assertion that from 1999 to 2003 he worked off
the clock over 200 times on unspecific days [was] not enough to create genuine issues of material
fact as to whether he [was] owed any additional compensation.” Id. at 30. Like Simmons, Plaintiff’s
allegations amount to no more than bald assertions that she sometimes worked off the clock.
Plaintiff fails to state the number of days, number of hours, or the dates on which this occurred.
Similarly, Plaintiff’s claim for uncompensated overtime must also fail. Therefore, the court finds
that Plaintiff has failed to demonstrate that a genuine dispute exists as to any material fact remains
on these claims. Accordingly, the court grants Defendant summary judgment on Plaintiff’s FLSA
and OMFWSA claims.
2. Worker’s Compensation Retaliation
Plaintiff asserts that she was fired in retaliation for submission of her Worker’s Compensation
claim. Defendant argues that Plaintiff has failed to make a prima facie case for retaliatory discharge
for seeking Worker’s Compensation benefits. Plaintiff argues that she has demonstrated a pattern
of retaliatory actions following her request for Worker’s Compensation benefits, which ended with
her termination in December, 2009.
Ohio Revised Code § 4123.90 states in pertinent part that:
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No employer shall discharge, demote, reassign, or take any punitive
action against any employee because the employee filed a claim or
instituted, pursued or testified in any proceedings under the workers'
compensation act for an injury or occupational disease which occurred
in the course of and arising out of his employment with that employer.
The Sixth Circuit has found that “[t]he scope of the cause of action created by the statute is very
limited, and the burden of proof on the employee to specifically show that the termination was in
direct response to the filing of a claim.” White v. Simpson Indus., 1 F. App’x 462, 466 (6th Cir.
2001). In order to state a claim for a retaliatory discharge under § 4123.90, Plaintiff has the burden
to establish a prima facie case, which requires Plaintiff to allege 1) that the employee was injured
while on the job, 2) that the employee filed a claim for workers’ compensation benefits, and 3) that
the employee was discharged in violation of § 4123.90. Kilbarger v. Anchor Hocking Glass Co., 697
N.E.2d 1080, 1083 (1997). Furthermore, “[t]he employee’s evidence must do more than raise an
inference of improper motive.” White, 1 Fed. App’x at 466 (internal citation omitted). If the
employee makes a prima facie case, then the burden shifts to the employer to show a
“nondiscriminatory reason for the discharge.” Kilbarger, 697 N.E.2d at 1083. The employer need
only demonstrate a legitimate, non-discriminatory reason for the discharge and does not need to
prove this reason or the absence of retaliation. Id. If the employer satisfies his burden of asserting
a legitimate, non-discriminatory reason for the employee’s discharge, the burden shifts back to the
employee. Id. Then it becomes the employee’s duty to establish that the reason for the termination
was pretextual and the real reason for the termination was the “employee’s protected activity under
the Ohio Worker’s Compensation Act.” Id. If the employee fails to show that the reason for
termination was a pretext for termination in violation of the Ohio Worker’s Compensation Act, then
the employee’s claim for retaliatory discrimination must fail. Id.
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Here, Plaintiff may be able to establish a prima facie case. The parties agree that Plaintiff was
injured on the job, that she filed for Worker’s Compensation benefits, and was terminated. Plaintiff
attempts to demonstrate that her termination was in contravention of § 4123.90. Plaintiff has not
presented any direct evidence, such as statements by Pye, Bradshaw, or any other employee of the
Defendant, that would prove her Worker’s Compensation claim was the true reason for her
termination. However, Plaintiff asserts that temporal proximity demonstrates her termination was
in contravention of § 4123.90. Plaintiff’s fourth and final Worker’s Compensation claim was filed
in 2006. (Pye Decl. ¶ 12.) Plaintiff did not seek Worker’s Compensation benefits to treat her injury
between July 2007 and May 2009. (Id. at ¶ 13.) She reactivated the claim in May of 2009, and was
approved to receive further treatment at that time. (Id.) Plaintiff was terminated in December 1,
2009. Therefore, Plaintiff’s temporal proximity argument may create more than an inference of
improper motive as required under White. 1 F. App’x at 466.
Assuming, arguendo, Plaintiff had made a prima facie case, Plaintiff still has not fully
satisfied her burden of proof under § 4123.90. She has not put forth evidence rebutting Defendant’s
legitimate, non-discriminatory reason for termination by demonstrating pretext. As discussed below,
Defendant has articulated a legitimate, non-discriminatory reason for terminating Plaintiff’s
employment, specifically that Pye had an honest belief that Plaintiff had verbally abused and engaged
in hostile behavior toward a resident of Defendant’s facility. An employer has an honest belief when
it “reasonably relied ‘on the particularized facts that were before it at the time the decision was
made.’” Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106,1117 (6th Cir. 2001) (internal
citation omitted). It is not required that the decisional process used by the employer be “optimal” or
leave “no stone unturned.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). Furthermore,
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an employee’s own subjective disbelief in the employer’s honest statement without any supporting
evidence is not enough to create an issue of material fact. McDermott v. Cont’l Airlines, Inc., No.
2:06 cv 0785, 2008 U.S. Dist. LEXIS 29831, at *24 (S.D. Ohio Apr. 11, 2008). Here, Defendant has
put forth evidence that Pye’s decision to terminate Plaintiff was reasonably based on the specific
accusations in Robinson’s letter, which were consistent with Plaintiff’s history of misconduct, for
which she had been counseled and warned numerous times. Also, Defendant has put forth evidence
that Pye believed that confronting Plaintiff with the accusations would not reach a meaningful result,
as Plaintiff would flatly deny any misconduct, as she had always done in the past. The fact that
Wade’s family believed the accusations against Plaintiff and immediately withdrew her from the
Defendant’s care, is evidence that further supports Pye’s decision. Thus, there is substantial evidence
which would support a finding that Pye had an honest belief that Plaintiff had engaged in the
offensive conduct at issue and determined that Plaintiff must be terminated to protect the residents
and Defendant from further liability.
Inasmuch as Defendant has established legitimate, non-discriminatory reasons for its actions,
Plaintiff has the burden of proving pretext by showing that the proffered reason 1) has no basis in
fact, 2) did not actually motivate the defendant’s challenged conduct, or 3) was insufficient to
warrant the challenged conduct. See Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000).
Here, Plaintiff has offered no evidence that Defendant’s belief that Plaintiff mistreated a resident had
no basis, did not actually motivate Defendant’s firing of Plaintiff, or was insufficient grounds for
termination. Plaintiff attempts to use an expert report to support her claim of retaliation, contending
that it demonstrates pretext. In the report, Plaintiff’s expert, Gregg Austin (“Austin”), discusses the
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voluntary abandonment defense1, and that he believes to “a reasonable degree of legal certainty, that
the evidence in this case supports the conclusion that Inner City Nursing Home discharged Pearl
McCrimon in retaliation for her pursuit of workers’ compensation benefits.” (Austin Report at 1-2,
ECF No. 17-3.) Austin concludes that “Inner City made a determination to begin creating a paper
trail of negative ‘counseling’ events, and the timing and character of those events corresponds
directly to Pearl McCrimon’s pursuit of workers’ compensation benefits after she had returned to
work as a ‘damaged’ asset for the company.” (Id.) Plaintiff’s expert seeks to opine on the counseling
events, yet does not indicate that he has either reviewed the files containing the counseling events
or talked to Defendant or its employees regarding the counseling events. He only states that he has
reviewed Plaintiff’s Worker’s Compensation claim file. (Id. at 2.)
Further, Defendant argues that the expert’s report should be precluded on several other
grounds. Plaintiff did not disclose the identity of any expert witness in its Initial Disclosures or any
supplement to them, pursuant to FED . R. CIV . P. 26(a)(1). Further, in the Joint Position Statement
filed with the court by the parties, both parties indicated that they “do not anticipate utilizing experts
or expert reports.” (ECF No. 8.) The report also fails to include the expert’s qualifications as
required by FED . R. CIV . P. 26(a)(2). In addition, Plaintiff’s expert report fails to comply with FED
R. EVID . 702. First, testimony by experts is allowed if “scientific, technical, or other specialized
1
Although Plaintiff mentions this defense several times, it has not been asserted by
Defendant in the instant case. This defense was advanced by Defendant in
another, separate proceeding in regard to Plaintiff’s renewed request for benefits
for a Worker’s Compensation claim initially filed in 2006. Plaintiff had not
sought benefits between July 2007 and May 2009, but reactivated the claim in
May 2009. Thus, Defendant argued that Plaintiff had voluntarily abandoned her
claim.
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knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” FED
R. EVID . 702. The instant situation is not one in which expert testimony is necessary. The court
needs no assistance in evaluating the evidence and the law regarding pretext. Second, the testimony
is allowed if “the testimony is based upon sufficient facts or data.” Id. As discussed above, the
report is not based upon sufficient facts or data. Furthermore, the testimony is inadmissible inasmuch
as it seeks to offer a legal conclusion regarding whether the employee was retaliated against.
Consequently, such expert testimony must be excluded. See Berry v. City of Detroit, 25 F.3d 1342,
1353-54 (6th Cir. 1994). As Plaintiff has failed to comply with FED . R. EVID . 702 and FED . R. CIV .
P. 26, the court will disregard the report.
Plaintiff has not otherwise demonstrated that “the real reason for [her termination] was [her]
protected activity under the Ohio Worker’s Compensation Act,” as required under § 4123.90.
Kilbarger, 697 N.E.2d at 1083. Plaintiff attempts to argue that temporal proximity, termination in
proximity to a Worker’s Compensation event, supports a claim of retaliation and defeats summary
judgment. However, she relies on a non-binding Tennessee state court decision to do so. The Sixth
Circuit and Ohio courts have found that generally temporal proximity alone does not support a claim
for retaliation, although certain circumstances may warrant it. See Nguyen v. City of Cleveland, 229
F.3d 559, 566 (6th Cir. 2000); Motley v. Ohio Civ. Rights Comm’n, No. 07AP-923, 2008 WL
2026426, at *4 (Ohio App. May 13, 2008). Typically, a temporal connection must be accompanied
with other indicia of retaliatory conduct to create an inference of retaliation. Dicarlo v. Potter, 358
F.3d 408, 421 (6th Cir. 2004); Motley, 2008 WL 2026426 at *4. Plaintiff has neither demonstrated
this is such a case where temporal proximity alone is sufficient, nor that there is other compelling
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evidence to support a claim of retaliation.2 Therefore, Plaintiff’s arguments regarding temporal
proximity are unavailing.
Plaintiff also attempts to use an affidavit of a former employee of the Defendant to
demonstrate she was in fact retaliated against. (Finch Aff., ECF No. 18.) As stated above, Rule
56(c) of the Federal Rules of Civil Procedure require an affidavit used to oppose a motion for
summary judgment to be “made based on personal knowledge, and show that the affiant or declarant
is competent to testify on the matters stated.” Finch’s affidavit meets neither of these requirements.
The affidavit only states that Finch was also injured at work and later terminated, which she felt was
a result of her injuries. However, this affidavit neither demonstrates pretext nor addresses Plaintiff
in any way. The Sixth Circuit has held that such “me too” evidence, if relevant, would violate FED .
R. EVID . 403 if admitted, since the probative value would be substantially outweighed by the unfair
prejudice caused by its admission. Schrand v. Federal Pacific Electric. Co., 851 F.2d 152, 156-57
(6th Cir. 1988). Plaintiff fails to demonstrate that “the evidence in this case overcomes the reasons
for inadmissibility articulated in Schrand, namely that the same actors, reasons, and other
circumstances were involved.” Calderwood v. Omnisource Corp., No. 3:04 CV 7765, 2007 WL
2838969, at *5 n.10 (N.D. Ohio Sep. 26, 2007). Finch does not indicate that she has filed any
Worker’s Compensation claims, that she faced counseling regarding her conduct, or that any resident
has indicated that she engaged in abusive conduct. In addition, Finch fails to explain how she knows
2
The court notes that Plaintiff’s brief is filled with derogatory speculation
regarding Defendant’s counsel that is completely inappropriate and will be
disregarded by the court.
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Plaintiff, how she knows Plaintiff was retaliated against, if she observed such retaliation, or if she
knows anything about Plaintiff’s workplace injuries.
Thus, Finch’s affidavit cannot establish that Plaintiff was in fact retaliated against or
demonstrate that Defendant’s legitimate, non-discriminatory reason for terminating Plaintiff’s
employment was a pretext for retaliation. Therefore, because Plaintiff has failed to establish a prima
facie case of retaliation, has improperly raised new allegations, and has not rebutted Defendant’s
legitimate, non-discriminatory reason for termination, Plaintiff has failed to show a genuine dispute
exists on her retaliatory termination claim. Accordingly, Defendant is entitled to summary judgment
on this issue.
3. Violation of COBRA
Plaintiff alleges that Defendant violated COBRA by “unlawfully failing to offer participation
on the group help [sic] plan.” (Compl. ¶ 12, ECF No.1) Defendant argues that Plaintiff admits she
was ultimately offered COBRA, and therefore this claim should be dismissed. This is not dispositive
however, because Defendant does not contest the fact that Plaintiff was not offered the benefits
timely. Further, Plaintiff indicates that when she was offered the benefits, she did not accept them.
She nonetheless indicates that if she were offered COBRA benefits earlier, she would have purchased
coverage to cover her January 2010 medical procedure. Therefore, a material issue of fact remains
regarding Plaintiff’s claim that Defendant violated COBRA by failing to offer her benefits.
Accordingly, Defendant is not entitled to summary judgment on Plaintiff’s COBRA claim.
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B. Plaintiff’s Motion to Strike
In Plaintiff’s Motion to Strike Defendant’s Motion for Summary Judgment (ECF No. 12.),
she argues that the letter from Robinson concerning Plaintiff’s treatment of Wade, and Plaintiff’s
counseling and corrective action records, are inadmissible hearsay and should be stricken. Plaintiff
contends Robinson’s letter is an out-of-court statement offered to prove the truth of the matter
asserted. Plaintiff further argues that the counseling and corrective action records contain statements
that are not the words of the person making the record, and fail to meet the trustworthiness and
contemporaneousness requirements of the business records exception. In addition, Plaintiff argues
that because Defendant’s Motion is entirely based on these hearsay statements, Defendant’s Motion
should be stricken in its entirety. Plaintiff is correct that hearsay evidence, which does not fall within
an exception, may not be considered on a motion for summary judgment. See Hartsel v. Keys, 87
F.3d 795, 799 (6th Cir. 1996). However, the court finds Defendant’s argument that the letter and
records are not being used for a hearsay purpose to be persuasive.
First, although hearsay is generally not admissible, Robinson’s letter to Pye is not hearsay.
See FED . R. EVID . 802. Under Federal Rule of Evidence 801(c), hearsay is “a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Defendant argues that Robinson’s letter is not hearsay because it is not
offered for its truth, and instead, the letter is offered as evidence to show Pye’s state of mind and
belief when he made the decision to terminate Plaintiff. It is well-settled that “a statement that is not
offered to prove the truth of the matter asserted but to show its effect on the listener is not hearsay.”
Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 379 (6th Cir. 2009) (internal citation omitted).
Similarly, a letter is not hearsay when it is not offered to prove its truth, but to show what the reader
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of a letter believed. See United States v. Harris, 942 F.2d 1125, 1130 (7th Cir. 1991). Here,
Robinson’s letter has been offered, not as proof that Plaintiff abused a resident, but instead as
evidence of Pye’s good faith belief that Plaintiff had mistreated a resident and that Plaintiff was
terminated for a legitimate, non-discriminatory reason. Pye also gave credence to the facts that Wade
was immediately removed from the facility and that Robinson had threatened legal action. The letter
was offered to support the conclusion that it was reasonable for Pye to believe that if Defendant
continued to employ Plaintiff, Defendant could face substantial legal liability. Therefore, Robinson’s
letter is properly admissible because it is not being used for a hearsay purpose.
Second, Plaintiff’s counseling and corrective action records are also admissible as nonhearsay and under FED . R. EVID 801(c). As stated above, in order to constitute hearsay, a statement
must be offered for its truth. See FED . R. EVID . 801(c). The Sixth Circuit has held that witness
statements contained within investigative reports are not hearsay when offered in support of summary
judgment, because they are not being offered for the truth of the matters asserted therein, but to show
the state of mind and motive of employer’s managers in taking adverse employment actions against
employee. See Michael v. Catepillar Fin. Servs. Corp., 496 F.3d 584, 598 (6th Cir. 2007) (citing
Haughton v. Orchid Automation, 206 F. App’x 524, 532 (6th Cir.2006)). Other courts have held that
disciplinary records are also not hearsay, since they are not being offered for the truth of the matter
asserted. See e.g., Turner v. Kansas City S. Ry. Co., 622 F. Supp. 2d 374, 385 (E.D. La. 2009)
(holding that discipline letters and records were not being offered for the truth of the matters asserted
and were not hearsay under FED . R. EVID . 801, rather the documents were admissible to “show the
information available to the decision-makers at the time the adverse employment decisions were
made”); Godoy v. Maplehurst Bakeries, Inc., 747 F. Supp. 2d 298, 305 (D. P.R. 2010) (holding a
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letter informing employee that he was being disciplined was not hearsay, and thus admissible,
because it was offered to prove the fact that he was disciplined, not to prove the truth of the
underlying claims). Here too, the counseling and corrective action records are not offered to prove
that Plaintiff was an argumentative and uncooperative employee. Instead, Defendant has offered
these documents to show that Defendant received and recorded multiple complaints about Plaintiff’s
conduct and that Plaintiff had been counseled by her supervisor many times. Further, these records
tend to show Pye’s state of mind and that Plaintiff’s termination was reasonable and in good faith
given the numerous complaints Defendant received about Plaintiff. Therefore, the records are
admissible since they are not being used for a hearsay purpose.
Both Ms. Robinson’s letter and the counseling and corrective action records are properly
admissible as non-hearsay. Thus, the court need not consider Plaintiff’s argument that the corrective
action and write ups are hearsay, and do not qualify for the Business Record Exception to hearsay.
In sum, the disputed evidence is admissible, and therefore Defendant’s argument is not based upon
hearsay evidence. Consequently, Plaintiff’s Motion to Strike is denied.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Strike (ECF No. 12) is denied, Defendant's
Motion for Summary Judgment (ECF No. 11) is granted in part and denied in part, and Plaintiff’s
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Motion for Extension of Time (ECF No. 13) is denied as moot. Therefore, the only claim that
remains is Plaintiff’s claim for violation of COBRA.
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT
September 30, 2011
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