Chandler et al v. CHS-Park View, Inc.

Filing 43

ORDER denying as moot 42 Motion for Leave to submit sur-reply; denying 19 Motion for Summary Judgment; denying 30 Motion for Contempt; overruling 31 Motion to Strike ; overruling 32 Motion to Strike ; overruling 33 Motion to Strike. Case shall proceed as scheduled. Signed by Judge Herman J. Weber on 5/8/13. (do1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BRIDGETT CHANDLER, et al,
Plaintiffs
v.

Case No. 1:12 cv 223-HJW

CHS-PARK VIEW, INC.,
Defendant
ORDER

Pending is the plaintiffs’ “Motion for Summary Judgment” (doc. no. 19).
Plaintiffs have submitted proposed findings of fact and conclusions of law, which
defendant has highlighted as true, false, or irrelevant (doc. no. 24-6). Also
pending are the plaintiffs’ “Objections” (doc. nos. 31-33) to various defense
affidavits and exhibits, and the plaintiffs’ “Motion for Contempt” (doc. no. 30).
Defendant opposes these motions and objections, and also requests leave to file
a sur-reply regarding the contempt motion (doc. no. 42). Having fully considered
the record, including the parties’ briefs, exhibits, and applicable authority, the
Court will overrule the objections, deny the motion for summary judgment, deny
the motion for contempt, and deny (as moot) the motion to file a sur-reply for the
following reasons:
1

I. Background and Procedural History
In 2011, plaintiff Bridgett Chandler was employed by the defendant CHSPark View, Inc. (“CHS”) as a floor nurse at a skilled nursing facility in Ohio. At the
beginning of her day shift on the morning of April 4, 2011, she refused to accept
the facility keys from the nightshift supervisor (Nurse Hall), left work early, and
did not return. The parties dispute the circumstances and reasons for her
departure.
On March 16, 2012, Chandler filed a federal complaint, contending that 1)
CHS wrongfully terminated her employment in violation of Ohio public policy; and
2) CHS subsequently did not comply with the notification requirements of
Consolidated Omnibus Budget Reconciliation Act (“COBRA”), at 29 U.S.C. § 1161
et seq. She also named her minor child “B.C.” as a plaintiff. 1
Defendant CHS answered (doc. no. 7) and asserted that Chandler was an
at-will employee who had voluntarily quit her job (¶¶ 4, 6, 9 “Affirmative
Defenses”). CHS asserted that Chandler was “guilty of gross misconduct” (¶ 7)
and that any alleged “termination” of Chandler’s employment did not violate any
Ohio public policy (¶¶ 2, 4, 5). In light of COBRA’s notification exception for
termination due to “gross misconduct,” CHS denied that it was required to send
her notification of continued health insurance coverage. CHS also asserted that
plaintiff was not entitled to a jury trial on such claim (¶ 10).
On June 14, 2012, the parties indicated to the Court they both anticipated
conducting written discovery and depositions (doc. no. 8, ¶ 10(a), Rule 26(f)
1

For simplicity’s sake, the Court will hereinafter refer to “plaintiff.”
2

Report). The Court set a discovery deadline of December 31, 2012, a dispositive
motions deadline of February 1, 2013, and trial in the June 2013 term (doc. no. 11,
Scheduling Order). According to plaintiff’s counsel, “neither party engaged in any
discovery, other than the initial disclosures” during the discovery period (doc.
no. 30 at 1). Defense counsel, however, points out that he repeatedly attempted
(on July 19 and September 10, 11, and 20, 2012) to schedule Chandler’s
deposition, but was ignored by plaintiff’s counsel. Defense counsel contacted
him again on December 28, 2012, and they agreed to conduct several depositions
on January 29-30, 2013, one day before the dispositive motions deadline. Neither
side filed any discovery motions pursuant to Rule 26 or 37 in the discovery
period.
On January 14, 2013, the parties filed a Joint Status Report, advising that
“discovery is not yet complete, although the parties have agreed to take several
depositions out of time” (doc. no. 15). CHS filed notices of the agreed depositions
of Bridgett Chandler and Theresa Snow (doc. nos. 17, 18). Plaintiff did not file any
notices of deposition in the docket.
On February 1, 2013, Chandler filed a “Motion for Summary Judgment” with
three exhibits: her own affidavit, the affidavit of nightshift supervisor Likicia Hall,
R.N., and a COBRA notice dated March 28, 2012 (doc. no. 19). Although this
Court’s Order required “Proposed Findings of Fact and Conclusions of Law” to
be filed with the motion, plaintiffs did not do so, and instead, sent them by email
to defense counsel. When CHS sought a 3-day extension of time to respond,
plaintiff opposed the request. After additional briefing, plaintiff withdrew
3

opposition. On March 5, 2013, CHS filed its summary judgment response with
numerous exhibits, including its high-lighted version of the plaintiff’s proposed
findings (doc. no. 24-6). The Court deemed the response timely (doc. no. 26
“Order”). CHS also filed the transcript of Chandler’s Deposition (doc. no. 25).
On March 18, 2013, plaintiff filed a reply (doc. no. 34) and three sets of
“Objections” (doc. no. 31-33) to the affidavits and exhibits that CHS had filed with
its response to the motion for summary judgment. Plaintiff also filed three
“Notices” (doc. no. 27-29) with attachments, consisting of a transcript of a
telephonic

hearing

before

the

“Unemployment

Compensation

Review

Commission” on July 25, 2011, a copy of a subpoena for Parkview’s former
Director of Nursing Vanessa Graham (now Kennon), and transcript pages
reflecting that the witness did not appear at deposition on January 30, 2013.
Plaintiff also filed a “Motion to Hold Vanessa Kennen (sic) and Eric B.
Hershberger in Contempt to Court” (doc. no. 30). CHS filed responses to the
objections and contempt motion (doc. nos. 35-37), and plaintiff replied (doc. no.
38-40). The objections and motions are fully briefed and ripe for consideration.
II. Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure, as amended on
December 1, 2010, provides in relevant part 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
4

material fact and the movant is entitled to judgment as a
matter of law.

Rule 56(c)(1) further provides that:
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A) citing to
particular parts of materials in the record . . . 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.

Under Rule 56, the moving party bears the burden of proving that no
genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (l986). The court must construe the evidence and draw all
reasonable inferences in favor of the nonmoving party. Id. at 587. In reviewing a
motion for summary judgment, a court must determine whether the evidence is
so one sided that one party must prevail as a matter of law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251 52 (1986).
III. Relevant Law
The Ohio Supreme Court first recognized a public policy exception to the
doctrine of “at will” employment in Greeley v. Miami Valley Maintc. Contractor,
Inc., 49 Ohio.St.3d 228 (1990). In order to establish a claim under Ohio law for
wrongful discharge in violation of public policy, plaintiff must prove: (1) a clear
public policy manifested in a statute, regulation, or common law; (2) that
discharging an employee under circumstances like those involved would
5

jeopardize the policy; (3) that the discharge was motivated by conduct related to
the policy; and (4) that there was no overriding business justification for the
discharge. Knox v. Neaton Auto Products Mfg., Inc., 375 F.3d 451, 459 (6th Cir.
2004); White v. Sears, Roebuck & Co., 163 Ohio App.3d 416, 421 (2005); Johnson
v. JPMorgan Chase & Co., --- F.Supp.2d ----, 2013 WL 485796, *11 (S.D.Ohio).
Elements 1 and 2 are questions of law to be determined by the Court, whereas
elements 3 and 4 are questions of fact to be decided by the finder of fact. Id.;
Beery v. Assoc. Hygienic Products, LLC, 243 Fed.Appx. 129, 135 (6th Cir. 2007);
Collins v. Rizkana, 73 Ohio St.3d 65, 70 (1995) (“The jury decides factual issues
relating to causation and overriding justification.”); George v. Fairfield Metr.
Housing Auth., 2008 WL 3008663, *7 (S.D.Ohio) (same).
As for plaintiff’s COBRA notification claim, the statute requires employers
sponsoring group health plans to notify an employee of her option to continue
coverage after a “qualifying event.” 29 U.S.C. §§ 1161(a), 1163, 1166(a)(4). Under
COBRA, termination due to “gross misconduct” is not a qualifying event. 29
U.S.C. § 1163(2) (defining the term “qualifying event” as including “termination
(other than by reason of such employee's gross misconduct) . . . of the covered
employee's employment”). Thus, in the event of termination for gross
misconduct, an employee loses the right to elect continued coverage, and the
employer is exempted from the COBRA notice requirement. 29 U.S.C. § 1163(2);
see, e.g., Deutsch v. Kroll Assoc., Inc., 2003 WL 22203740, *6 (S.D.N.Y.);
Boudreaux v. Rice Palace, Inc., 491 F.Supp.2d 625, 637 (W.D.La. 2007).
IV. Analysis
6

A. The Claim for “Termination in Violation of Public Policy”
With respect to the first and second elements, plaintiff argues that Ohio
has a clear policy manifested in its statutes and regulations regarding the care
provided by LPNs, and that discharging her under circumstances of her case
would jeopardize such policy. Plaintiff argues that the “Ohio General Assembly
has issued rules governing the practice on nursing by RNs and LPNs” and points
to Ohio R.C. § 4723.01(F), which defines “[t]he practice of nursing as a licensed
practical nurse" as “providing to individuals and groups nursing care … at the
direction of a licensed physician … or registered nurse.” She cites Ohio Admin.
Code § 4723-4-04 “Standards relating to competent practice as a licensed
practical nurse” and argues that she believed “in good faith” that accepting the
supervisor’s keys could (possibly) have required her to work outside the scope of
her LPN license and therefore, she is entitled to summary judgment on her claim
that her termination violated public policy (doc. no. 34 at 4).
Even assuming that Ohio Admin. Code § 4723-4-04 sets the state standard
for competent practice of LPNs and embodies a “clear policy,” plaintiff is not
entitled to summary judgment because the materials cited in her motion “do not
establish the absence” of any genuine disputes on the second element of her
public policy claim. In other words, plaintiff’s own subjective belief that accepting
the supervisor’s keys could (possibly) have required her to work outside the
scope of her LPN license is insufficient to establish that she was discharged
under circumstances that would jeopardize Ohio’s policy regarding competent
nursing practices.
7

CHS points to state regulations and the opinion evidence of three
registered nurses (“R.N.”) contradicting the factual and legal basis for Chandler’s
subjective belief that she was being asked to assume duties that were beyond her
skill level as an LPN, that might violate nursing regulations, or that might
jeopardize her nursing license (doc. no. 24-1 at 4-25, attached affidavits of Nurses
Kennon, Maninga, and McIntosh, and 24-5 at 2, Ohio Admin. Code § 3701-17-08
“Personnel Requirements” for nursing homes). CHS disputes the plaintiff’s
allegation that briefly accepting the nightshift supervisor’s keys would have
placed her “in control of the entire facility,” and that as a result, she would have
been “providing nursing care without the supervision of a physician or RN, in
violation of the standards of practice for an LPN” (doc. 1, ¶ 14). Given plaintiff’s
subjective belief, CHS points to Ohio Admin. Code § 3701-17-08 which provides
that “Each nursing home shall have a registered nurse on call whenever one is
not on duty in the home” (doc. no. 24-5 at 2). The evidence of record indicates
that Chandler had previously accepted the keys without incident. When asked if
Chandler had been given the “medication cart keys on previous occasions,”
McIntosh testified “Yes, that was the regular routine” (doc. no. 29-1 at 6,
Transcript).
In addition, the record reflects that plaintiff has not shown that she is not
entitled to summary judgment with respect to the third and fourth elements of her
public policy claim (i.e., whether the discharge was motivated by conduct related
to the policy; and whether there was an overriding business justification for the

8

discharge). As the parties have concentrated on disputed facts regarding these
elements, the Court will proceed further.
1. Undisputed Factual Allegations
First, the Court observes that the following facts from the plaintiff’s
“Proposed Findings” (doc. no. 24-6) are not disputed: CHS is an Ohio corporation
that operated a skilled nursing facility known as The Residence at Park-View
(“Park-View”) for disabled and elderly patients (¶ 1). The complaint lists the
address for defendant CHS as “8200 Beckett Park Drive, Hamilton Ohio” and
indicates that the Park-View facility was located at “6300 Daily Road, Ohio” (¶ 2). 2
CHS employed Bridgett Chandler as a floor nurse on the day shift, usually on the
West or South Units of the facility (¶¶ 2, 5). Chandler was a Licensed Practical
Nurse (“LPN”), and much of her work involved monitoring patients and
dispensing medications (¶ 7). As an employment benefit, she had health
insurance for herself and her minor child.
In 2011, Parkview’s Director of Nursing was Vanessa Graham (now
Kennon), and the Assistant Director was Faye McIntosh (¶ 3). Both were
Registered Nurses (“R.N.”). CHS also employed Nursing Supervisors, who were
responsible for supervising and assisting the floor nurses in the performance of
their rounds and for maintaining and dispensing emergency medications kept in
a locked container (“E-box”) (¶ 6). It is undisputed that on the morning of April 4,
2011, Chandlers refused to accept the keys (for the front door and E-box) from

2

Plaintiff provides no city in the Parkview facility’s address.
9

the nightshift supervisor Hall. The parties do not dispute that Chandler then left
the premises and did not return. They also do not dispute that the Director of
Nursing called Chandler that afternoon and spoke with her about her conduct that
morning.
2. Disputed Factual Allegations
The rest of the plaintiff’s proposed findings of fact (and legal arguments
based on them) are high-lighted in red as “disputed” by CHS (doc. no. 24-6, ¶¶ 321). The parties disagree as to myriad details of the surrounding circumstances
that morning. 3 For example, in her “Proposed Findings,” Chandler asserts that
Parkview was “understaffed” in 2011 (¶ 8) and that on April 4, 2011, she was
assigned “too heavy a workload for one person” (¶ 12). She contends she would
have been “responsible for approximately 30 skill care patients and [15] assisted
living patients” on that day (¶ 12). 4 She alleges she complained to the nightshift
Nursing Supervisor “Lakita (sic) Hall,” who was going home and had been

3

The parties do not even agree on the date Chandler began working at Parkview.
Chandler indicates in her proposed findings that she started on October 1, 2010
(doc. no. 26-4, ¶ 2), whereas CHS points to documentation showing that she
actually started on December 22, 2009 (doc. no. 24 at 3; Chandler Dep. at 147, Ex.
B signed employment forms). Chandler acknowledged these forms at deposition,
and the hiring date in her proposed findings is apparently erroneous. Regardless,
her hiring date is not “material” for purposes of summary judgment.
4

Chandler omitted the “15” from her proposed findings, but asserts in her
affidavit that she would have been “responsible for approximately 30 skill care
patients and 15 assisted living patients” (doc. no. 19-1 at 2, ¶ 8).
10

instructed to give her the keys (¶ 12). 5 According to plaintiff, this would have left
her “in control of the entire facility, including the E-box” (¶¶ 13-14). Chandler
alleges that after she refused to take the keys, Nurse Hall spoke by telephone
with Asst. Director McIntosh “at about 7:45 a.m.” and relayed the instruction that
“if Chandler would not accept the supervisor’s keys, then she should clock out
and go home” (¶ 17). Chandler refused to accept the keys and left. She alleges
that the Director of Nursing called her that afternoon and terminated her
employment for failing to follow directions and for refusing to accept Hall’s keys
(¶ 18).
CHS disputes Chandler’s version of events. CHS points out that Chandler’s
assertion of “inadequate staffing” at Parkview is unsupported and incorrect. In its
response, CHS points to personnel records, facility population records, and other
evidence showing that Parkview was adequately staffed for the number of
patients (doc. no. 24 at 7-8, Exs. B-F). CHS suggests that plaintiff’s assertion of
“inadequate staffing” is based on an erroneous assumption of full occupancy,
when in fact, facility census records show only 75% occupancy at most, with
some units at only 50% occupancy (doc. no. 24 at 8). CHS points to floor plans
and other evidence (such as the Affidavit of Asst. Director McIntosh) showing
that, contrary to Chandler’s allegation, Parkview did not even have an assisted
living unit (doc. no. 24 at 7; 24-2 at 1). CHS also points to evidence showing that

5

CHS indicates that plaintiff has misspelled this nurse’s first name as “Lakicia”
or “Lakita” and has erroneously referred to her last name as “Walker” (doc. no.
24 at 3). CHS indicates that this nurse’s name is “Likicia Hall.”
11

plaintiff would only have been responsible for 22-23 patients at the most on April
4, 2011 (doc. no. 24 at 8).
As to Chandler’s time-line of events, CHS points to automated time-clock
records showing that on April 4, 2011, Chandler was late for work and clocked in
at 7:07 a.m. and then clocked out at 7:23 a.m. – not at 7:45 or 8:00 a.m. as
Chandler testified at deposition (doc. no. 24 at 4, citing Chandler Dep. at 126).
Although Chandler claims she was there for approximately one hour, CHS points
to evidence that she was there only 16 minutes. Chandler acknowledged at
deposition that she left work immediately after clocking out (doc. no. 25, Chandler
Dep. at 126). CHS contends that Chandler abandoned her patients and walked off
the job “in a huff” because she did not like her work assignment that day.
CHS points out that Chandler has acknowledged under oath that in her
phone conversation with the Director of Nursing on the afternoon of April 4, 2011,
she falsely told the Director that she had left due to a “family emergency” (doc.
no. 24 at 6, citing Chandler Dep. at 138-139, see also Ex. A, Director’s Statement
dated 4-4-2011 “When I questioned Bridgett about leaving again, and asked her to
please be honest, she then stated she was sorry for not telling the truth . . . I
again confirmed with her that she was quitting without notice and she agreed”).
Ohio Admin. Code § 4723-4-04 (P) provides that “A licensed nurse shall not make
any false, misleading, or deceptive statements. . . to . . . employers.” At
deposition, Chandler confirmed the accuracy of the Director’s written account as
to Chandler’s false reason (doc. no. 25, Chandler Dep. at 138, Q: “Is that a fair
summary of what happened? A: Yes.”), but further testified that she did not
12

“remember” agreeing with the Director that she was quitting without notice (Id. at
143 “I don’t remember her ever saying that”).
In short, plaintiff is not entitled to summary judgment on her claim of
employment termination in violation of public policy.
B. The COBRA Notification Claim
Plaintiff also moves for summary judgment on her COBRA notification
claim, but merely attaches a COBRA notice dated March 28, 2012 for “continuing
coverage” beginning January 1, 2012. Such exhibit does not establish that
plaintiff is entitled to summary judgment. CHS contends that Chandler quit her
job without notice, that her actions amounted to “gross misconduct”
(insubordination and abandonment of her responsibility to care for patients), and
that she was not entitled to COBRA notification pursuant to 29 U.S.C. § 1163(2).
CHS points out that plaintiff acknowledged at deposition that she had refused to
follow instructions and accept the supervisor’s keys. CHS points to scheduling
and time records showing that plaintiff left work early. Genuine disputes of
material fact exist as to whether Chandler engaged in “gross misconduct” such
that her termination from employment was not a “qualifying event” that would
trigger COBRA’s notification requirement. See, e.g., Deutsch v. Kroll Associates,
Inc., 2003 WL 22203740, *6 (S.D.N.Y.) (denying summary judgment because
genuine disputes of material fact existed as to whether employee was terminated
for “gross misconduct” thereby disentitling plaintiff to COBRA benefits). CHS has
pointed to sufficient evidence demonstrating that plaintiff is not entitled to
summary judgment on this claim.
13

C. The Plaintiffs’ Objections
Rule 56(c)(2) provides that a party “may object that the material cited to
support or dispute a fact cannot be presented in a form that would be admissible
in evidence.” Fed.R.Civ.P. 56(c)(2). Plaintiff raises three objections to exhibits
attached to the defendant’s response to the motion for summary judgment.
1. Plaintiff’s First Objection
Plaintiff objects that the 79 pages of “exhibits referenced in the Affidavits
of Vanessa Kennen and Pam Maninga . . . have not been properly authenticated
and therefore are inadmissible” (doc. no. 32). Both affidavits refer to Parkview’s
business records, such as daily census records, personnel staffing records, shift
schedules, audit reports, medication records, E-box list, and the floor plan (doc.
no. 24, Exs. A-I). CHS has attached these documents to its summary judgment
response. In their affidavits, Kennen and Maninga both attest to the documents
as the regular business records of the Parkview facility.
Ms. Maninga indicates in her affidavit that she is the current “Senior
Clinical Consultant to the (now-former) operator of the Parkview facility,” that she
personally reviewed the records, and that “such records are kept, maintained,
and relied upon in the course of ordinary and regularly conducted business”
(doc. no. 24-1 at 13, ¶ 3). In her objection, plaintiff suggests no reason why Ms.
Maninga allegedly cannot authenticate Exhibits A-I. Plaintiff’s objection regarding
authentication may be overruled for this reason alone.

14

Plaintiff argues that Ms. Kennon cannot authenticate these business
records because, although she was the Director of Nursing at the time of
Chandler’s termination, she subsequently left CHS. Plaintiff argues that Ms.
Kennon cannot “attest to the business records of an entity with which she is no
longer affiliated,” but cites no relevant authority. 6 Kennon indicates that, as the
former Director of Nursing at Parkview, she has personal knowledge of the
business records regularly maintained under her tenure there. An affidavit used
to support or oppose a motion “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant . . . is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Kennon’s
affidavit satisfies such requirements, and in any event, all of the records can also
be authenticated by Ms. Maninga. Plaintiff’s objection regarding authentication is
without merit.
Plaintiff further objects that Exhibits A-I were not specifically identified in
the initial Rule 26(a) disclosures and that CHS should have supplemented them.
While parties have an ongoing mutual obligation to supplement initial disclosures
“whenever a party learns that its prior disclosure or responses are in some
material respect incomplete or incorrect,” see Fed.R.Civ.P. 26 (Advisory
Committee Notes, 2013 Edition, comments on subdivision (e), at 160), plaintiff’s

6

Plaintiff attaches a magistrate’s order from an out-of-district case that is
factually distinguishable, as it involved authentication of the records of two
separate unaffiliated businesses, rather than a former employee with personal
knowledge of her employer’s records kept during her tenure. Moreover, the
attached order simply recognized that “the person presenting the foundation for
a business record must be testifying as to the procedures of the appropriate
business” (doc. no. 32-2 at 1).
15

argument provides no basis to impose the sanction of disregarding such exhibits
under the circumstances of the present case.
CHS points out that its initial disclosures were complete when made and
fully complied with Rule 26. See Fed.R.Civ.P. 26(a)(1)(E) (“A party must make its
initial disclosures based on the information then reasonably available to it.”).
CHS listed five potential witnesses: the plaintiff, Faye McIntosh, Vanessa Graham
(now Kennon), Janet Bresnahan, and “unknown representatives.” CHS identified
“select records, including certain Employment Handbook and Policies, and
communications surrounding the determination for plaintiff’s dismissal” (doc. no.
32-1 at 1). Plaintiff made no effort to inquire about any “unknown representatives”
or to request any “select records” pertaining to plaintiff’s dismissal. Although
plaintiff now complains that she had “no knowledge” of Exhibits A-I prior “to the
close of discovery” (doc. no. 32 at 3), the record does not reflect that she made
any effort to request relevant records or to conduct any other written discovery in
a timely manner. Plaintiff has no one but herself to blame for her own failure to
seek discovery. As CHS points out, plaintiff filed suit and bears the burden to
prove her claims.
As for the duty to supplement disclosures with later–acquired information,
CHS points out (doc. no. 36 at 5-6) that until Chandler was deposed on January
30, 2012, CHS did not know what specific documents would be needed to counter
plaintiff’s assertions. See also, Fed.R.Civ.P. 26(a)(1)(A)(i) and (ii) (providing that
disclosure of matters used “solely for impeachment” is not required). Plaintiff
moved for summary judgment on February 1, 2012, and CHS appropriately
16

responded by pointing to evidence showing that plaintiff was not entitled to
summary judgment. For example, CHS responded to plaintiff’s proposed finding
of “inadequate staffing” with documentation showing adequate staffing levels.
Plaintiff can hardly claim to be surprised at such a response. CHS points out that
any “supplementation” of initial disclosures would have been futile, given that
plaintiff moved for summary judgment two days after she was deposed” (doc. no.
36 at 6). Under these circumstances, the alleged failure to supplement
disclosures

was

substantially

justified.

Plaintiff’s

objection

lacks

merit.

Additionally, even supposing that supplementation of the initial disclosures
might have been appropriate, the drastic sanction that plaintiff urges (exclusion
of the relevant testimony of the main defense witness) is not warranted here.
2. Plaintiff’s Objection to the Affidavits of Brack and Graf
Plaintiff also objects (doc. no. 31) to the affidavits of Jennifer Brack and
Brenda Graf. CHS attached such affidavits to its summary judgment response.
Ms. Brack indicates she is the Corporate Benefits Manager for Provider
Services Holdings, LLC (the operator of Parkview in 2011), that she has personal
knowledge of the facility’s record-keeping system and benefits administration.
She indicates that CHS entirely paid Chandler’ health insurance through
December 31, 2011 (doc. no. 24-1 at 27).
Ms. Graf indicates she is CHS’ in-house counsel and that, after Chandler
filed this lawsuit in March of 2012, she directed issuance of a COBRA notice to
the plaintiff as a precaution “in the event it was determined ultimately that
17

plaintiff’s gross misconduct did not provide a complete defense to the lawsuit”
(doc. no. 24-1 at 30).
Plaintiff again complains that CHS did not name these two individuals as
potential witnesses in the initial disclosures. Plaintiff urges that their affidavits
should therefore be excluded for purposes of summary judgment. CHS responds
that the disclosures were accurate and complete when made (doc. no. 36 at 8).
CHS points out that plaintiff conducted no subsequent written discovery. Since
plaintiff was deposed on January 30, 2013, and plaintiff moved for summary
judgment on February 1, 2013, CHS argues that it had little time to supplement
the disclosures based on what it had learned at Chandler’s deposition. For the
reasons already discussed, the Court finds that the sanction of exclusion for
alleged failure to supplement the initial disclosures is not warranted under the
circumstances of this case. Plaintiff’s objection lacks merit.
Plaintiff apparently labors under the misconception that she would be
entitled to summary judgment on the COBRA claim if these two affidavits were
disregarded. Her assumption is incorrect. These two affidavits pertain largely to
any potential damages, not liability. 7 Even if the two affidavits were not
considered, plaintiff would still not be entitled to summary judgment.

7

COBRA's civil enforcement provision provides for statutory damages of up to
$100 per day for failing to abide by its notice requirements and reasonable
attorney fees and costs. See 29 U.S.C. §§ 1132(c)(1) & (3), (g)(1). The award of
statutory damages is within the discretion of the district judge. Bartling v.
Fruehauf Corp., 29 F.3d 1062, 1068-69 (6th Cir. 1994) (observing that courts have
declined to impose penalties in the absence of bad faith or prejudice); Nero v.
University Hosp. Mgmt. Serv. Org., 2006 WL 2933957, *5 (N.D.Ohio).
18

Plaintiffs’ counsel appears to confuse his own responsibility to conduct
discovery with the parties’ ongoing mutual obligation to supplement initial
disclosures. Having delayed depositions until the day before the dispositive
motion deadline, and having filed his motion for summary judgment the next day,
plaintiffs’ counsel argues he was “sand-bagged” because CHS attached evidence
(that plaintiff never sought in discovery) to its summary judgment response.
Plaintiff’s argument is not persuasive, and this objection lacks merit.
3. Plaintiff’s Third Objection
Plaintiff objects to paragraphs 8-10 in the affidavit of Asst. Director Faye
McIntosh, R.N. (doc. no. 33). In ¶ 8, McIntosh indicates “”with respect to Plaintiff’s
termination, I did not speak with Plaintiff on the date she was terminated.”
Plaintiff argues that this is “hearsay.” On the contrary, this line in the affidavit has
nothing to do with hearsay. See Fed.R.Evid. 801(c) (“Hearsay means a statement
that . . . a party offers to prove the truth of the matter asserted in the statement”).
Plaintiff has shown no basis to object to ¶ 8 of the Affidavit. In fact, she
acknowledges that McIntosh did not call her that day (doc. no. 29-1 at 14 “No sir,
she did not . . . I never had any conversation with Ms. Faye McIntosh”).
With respect to ¶ 9 of her affidavit, McIntosh indicates that “I have a
recollection of speaking with [Nurse] Hall on the morning of April 4, 2011.”
Chandler acknowledges that this conversation occurred. In her proposed
findings, Chandler indicates that she refused to take Nurse Hall’s the keys, and

19

that Hall then spoke by telephone with McIntosh “at about 7:45 a.m.” and relayed
the instruction that “if Chandler would not accept the supervisor’s keys, then she
should clock out and go home” (doc. no. 24-6, ¶ 17). Chandler has provided the
affidavit of Hall, who confirms this conversation (doc. no. 19, ¶ 14). The fact that
this conversation took place is not disputed. Plaintiff has shown no basis for
objecting to this part of ¶ 9 of the Affidavit.
In the rest of ¶¶ 9 and 10, McIntosh sets forth what she did and did not
discuss in that conversation with Hall. Plaintiff takes exception to the part of ¶ 9
where McIntosh indicates that she never discussed various other complaints that
Chandler now claims to have been making at the time. Chandler contends that ¶¶
9-10 are inconsistent with McIntosh’s sworn testimony in a telephonic hearing
before the “Unemployment Compensation Review Commission” on July 25, 2011
(doc. no. 29). Chandler contends that McIntosh told the Commission she did not
remember the content of the conversation, therefore, ¶¶ 9-10 are “inadmissible.”
In her reply (doc. no. 40 at 3), plaintiff cites transcript page number “67” but no
such page number exists in the unemployment hearing transcript.
More importantly, in urging that McIntosh is making “inconsistent
statements,” Chandler has not accurately discussed the content of the hearing
transcript. There, McIntosh indicated that she didn’t recall talking with Chandler
that day and that Chandler never talked with her “regarding the issues, what
issues she had with taking the keys, or anything like this” (doc. no. 29-1 at 6, 8).
At the hearing, McIntosh indicated she had also participated in a conference call
with the Director that day, but didn’t remember the substance of the discussion,
20

although she had prepared a written statement at the time (at 7, 9). In her affidavit,
McIntosh refers to her discussion with Hall. Plaintiff confuses matters because
she refers to McIntosh’s hearing testimony about not recalling the substance of
her conversation with the Director, but paragraphs 9-10 of the affidavit only
concern McIntosh’s own conversation with Hall. Since McIntosh’s hearing
testimony and her subsequent affidavit refer to different conversations, plaintiff’s
objection as to purported “inconsistency” lacks merit.
In any event, plaintiff’s hearsay objection serves little purpose here,
because even if paragraphs 8-10 of McIntosh’s affidavit were not considered,
plaintiff would still not be entitled to summary judgment.
D. The Contempt Motion
Finally, plaintiff complains that Vanessa Keenon (Parkview’s former
Director of Nursing) did not appear for her deposition on January 30, 2013.
Plaintiff’s counsel made no effort to reschedule the deposition, and instead,
urges that the Court should hold Kennon and defense counsel “in contempt” and
“bar her from providing testimony on behalf of defendant’s (sic) in this matter”
(doc. no. 30). Plaintiff argues that “the proper remedy . . . would be an award of
sanctions, up to an including entry of a summary judgment in favor of Chandler”
(Id. at 4). The Court declines to hold defense counsel or the non-party witness in
contempt, and in any event, the drastic sanction urged by plaintiff would not be
appropriate under the circumstances.

21

In the first place, defense counsel does not represent this non-party
witness, who no longer works for CHS. Rather, as a matter of professional
courtesy, defense counsel merely provided plaintiff’s counsel with the witness’s
last known address upon request in January 2013. Defense counsel indicates
(doc. no. 37 at 1, fn.1) that he never saw a notice for this deposition until
plaintiff’s counsel filed it as an exhibit on March 18, 2013. Plaintiff’s counsel
noticed this deposition well beyond the discovery deadline. Plaintiff now
complains that, in response to the plaintiff’s motion for summary judgment,
defense counsel obtained and filed Kennon’s affidavit. Plaintiff has shown no
basis whatsoever for any “contempt” against defense counsel.
As for the witness, the Court is concerned by allegations that a deposition
notice was ignored, assuming that such deposition was properly noticed. Rule
45(e) provides that the “issuing court may hold in contempt a person who, having
been served, fails without adequate excuse to obey the subpoena.” Fed.R.Civ.P.
45(e). Here, it is unclear that the subpoena was “properly noticed,” given that
plaintiff’s counsel did not file a notice in the record at the time and given that the
notice has other irregularities on its face. For example, the subpoena notice did
not fully comply with the federal rules, as it did not indicate that plaintiff’s
counsel tendered to the witness any fees for one day’s attendance or for the
mileage allowed by law (approximately 13 miles in this instance). See Fed.R.Civ.P.
45(b)(1) (“Serving a subpoena requires delivering a copy to the named person
and, if the subpoena requires that person’s attendance, tendering the fees for 1
days’ attendance and the mileage allowed by law.”).
22

Plaintiff’s counsel apparently made no attempt to arrange an agreed date
for this deposition or to discuss matters with defense counsel in an effort to
ensure the attendance of Kennon, the former Director of Nursing for Parkview.
Plaintiff’s counsel did not reschedule the deposition. Although plaintiff’s counsel
indicates he served the notice on the witness on January 24, 2013 and that the
deposition was scheduled for January 30, 2013, the record reflects that plaintiff’s
counsel waited until March 18, 2013 to file a return of subpoena.
Moreover, the non-party witness has provided an affidavit indicating that
she was not served on the date claimed by plaintiff’s counsel. She indicates that,
at the time, she was moving furniture into a U-Haul truck at 8 p.m. at night,
inadvertently misplaced the notice, and had no way to know who to contact about
the matter. The record suggests that the witness may have an adequate excuse
under the circumstances. See, e.g., Brown v. Voorhies, 2010 WL 4384227, *2
(S.D.Ohio) (holding that because plaintiff “has not produced clear and convincing
evidence that KBHR wilfully disobeyed a specific court order or that it failed
without adequate excuse to obey his subpoena, the Court will not enter a finding
of contempt”). Additionally, the record does not reflect that the witness has been
served with any notice of the plaintiff’s contempt motion.
In light of the growing contentiousness of counsel in this case, the Court
reminds counsel that they are fully expected to deal with one another in a civil
and courteous manner. See S.D. Ohio Local Rules, Introductory Statement on
Civility (“common courtesy, respect, and personal integrity play an essential role
in the administration of justice”). The Court also reminds counsel that they have
23

an obligation under the rules to confer with one another before filing discovery
disputes. Counsel’s attention is directed to Local Rule 37.1 which provides:
Objections, motions, applications, and requests relating
to discovery shall not be filed in this Court, under any
provision in Fed. R. Civ. P. 26 or 37 unless counsel have
first exhausted among themselves all extrajudicial
means for resolving the differences. After extrajudicial
means for the resolution of differences about discovery
have been exhausted, then in lieu of immediately filing a
motion under Fed. R. Civ. P. 26 or 37 and S. D. Ohio Civ.
R. 37.2, any party may first seek an informal telephone
conference with the judicial officer assigned to
supervise discovery in the case.

Plaintiff’s counsel could easily have avoided the problems he now complains of,
but instead, seeks to gain procedural advantage from his own apparent failures in
this regard. Given Ms. Kennon’s affidavit, plaintiff is well apprised of her likely
testimony. Plaintiff will have full opportunity to cross-examine the witness at trial.
Finally, the Court observes that on April 25, 2013, defense counsel asked
for leave to file a sur-reply regarding the contempt motion (doc. no. 42). Briefing
on this motion is complete, and given the Court’s denial of the motion for
contempt, additional briefing is unnecessary.
IV. Oral Argument Not Warranted
Local Rule 7.1(b)(2) provides that courts have discretion whether to grant
requests for oral argument. The parties have fully briefed the relevant issues. The
Court finds that oral argument is not necessary. Yamaha Corp. of Am. v.
Stonecipher’s Baldwin Pianos & Organs, 975 F.2d 300, 301-02 (6th Cir. 1992);
24

Schentur v. United States, 4 F.3d 994, 1993 WL 330640 at *15 (6th Cir. (Ohio))
(observing that district courts may dispense with oral argument on motions for
any number of sound judicial reasons).

Accordingly, all three “Objections” (doc. nos. 31-33) are OVERRULED; the
“Motion for Summary Judgment” (doc. no. 19) is DENIED; the “Motion for
Contempt” (doc. no. 30) is DENIED; and the AMotion for Leave to Submit Surreply@ (doc. no. 42) is DENIED as moot. This case shall proceed as scheduled.
IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court

25