Moss v. University Village Retirement Community

Filing 49

OPINION AND ORDER by Judge John E Dowdell ; granting in part and denying in part 26 Motion in Limine (Re: 48 Opinion and Order,, Setting/Resetting Deadline(s)/Hearing(s),,,, Ruling on Motion for Summary Judgment, ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
TRACIE MOSS,

)
)
Plaintiff,
)
)
v.
)
)
UNIVERSITY VILLAGE RETIREMENT )
COMMUNITY,
)
)
Defendant.
)

Case No. 12-CV-307-JED-PJC

OPINION AND ORDER
Before the Court is the Motion in Limine (Doc. 26) filed by defendant, University Village
Retirement Community (UVRC). The facts and claims in this case are summarized in the
Court’s Opinion and Order denying summary judgment (Doc. 48) and will be referenced only as
necessary in the analysis of the Motion in Limine.
I.

Evidence Relating to Michael Knighten
UVRC requests that the Court enter an order excluding certain evidence relating to

Michael Knighten, a UVRC employee who is generally relevant to plaintiff’s claim of alleged
wrongful termination in violation of public policy under Burk v. K-Mart Corp., 770 P.2d 24
(Okla. 1989). The Court is familiar with some of the evidence relating to this claim, as it was
presented in the parties’ summary judgment briefing. That evidence shows that, while plaintiff
was on maternity leave from UVRC, a resident made an allegation of sexual abuse by Michael
Knighten, who was a UVRC staff member.

Pursuant to a state regulatory rule, which

implements the Oklahoma Nursing Home Care Act, facilities such as UVRC are required to
report such allegations to the Oklahoma Department of Health. Okla. Admin. Code 310:675-75.1. In plaintiff’s absence, other UVRC staff failed to report the allegation of abuse. Following

her return to work from maternity leave, plaintiff learned of the abuse allegation, generally
complained about the failure of other UVRC staff to timely report it, and made the required
report following her own investigation. She was terminated days later, and plaintiff alleges that
the termination is in retaliation for the report she made pursuant to Oklahoma law.
UVRC denies that her termination had anything to do with plaintiff’s report of the abuse
allegation, and UVRC points to evidence that it had made numerous reports of incidents to the
Oklahoma Department of Health in the past.

In response, plaintiff asserts that the true

motivation of Vanessa Neal, the Vice President and Executive Director of UVRC, in terminating
plaintiff’s employment can be inferred from evidence that (1) Neal was friends with Mr.
Knighten, the UVRC employee who was alleged to have abused the resident, (2) Knighten had
previously been written up for sexually inappropriate and harassing behavior towards other
UVRC staff, and (3) Knighten had previously pleaded guilty to an assault and battery charge,
which was known to UVRC. From this, plaintiff asserts that the allegation of sexual abuse was
not reported by other UVRC staff while plaintiff was on maternity leave because such a report
would reflect badly upon UVRC for continuing to employ Knighten after knowledge of his
assault and battery conviction and his documented inappropriate and sexually harassing conduct
toward another UVRC employee. Hence, plaintiff asserts that she was terminated for making the
report of alleged sexual abuse by Knighten.
The Court has previously found the existence of genuine disputes of material fact with
respect to UVRC’s motivation for terminating plaintiff’s employment. (Doc. 48 at 5-6). It is
clear that Knighten’s history at UVRC and the fact that UVRC was aware of Knighten’s assault
and battery conviction are relevant to whether UVRC disapproved of plaintiff’s reporting of the

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abuse allegation and thus terminated her employment for making that report. UVRC’s Motion in
Limine relating to Mr. Knighten is thus denied.
II.

Alleged Business Practices by One of UVRC’s Owners
UVRC requests that the Court preclude plaintiff from introducing evidence or making

any reference to allegations that one of UVRC’s owners, Matt Gawey (1) asked a UVRC resident
to leave money to UVRC in the resident’s will, (2) yelled at contractors for not doing something
that they had yet to receive a permit to do, and (3) was “rude, uncaring, [and] rash” toward
employees. (Doc. 26 at 8). All three of these allegations were made by Leanna Van Eman, a
former UVRC employee, as reasons she left the employ of UVRC. (Id.). Van Eman testified
that she “had heard” “very secondhand” about the first allegation, but that “it was never
verified.” (Doc. 26-4, Depo. p. 10). She also testified that she never saw Mr. Gawey “do
anything that [she] felt was unethical.” (Id., Depo. pp. 11-12).
Plaintiff responds that she should be permitted to introduce such allegations as evidence
of “Mr. Gawey’s reputation as a less than ethical businessman,” and claims that such evidence is
“clearly relevant because it suggests that Gawey created an atmosphere in which rules, policies,
and procedures were ignored and retaliation was an accepted business practice.” (Doc. 32).
Aside from the potential hearsay problems with such evidence, the allegations are too attenuated
to the issues in this case to be relevant to the plaintiff’s claims. Plaintiff asserts that she was
terminated by UVRC in violation of public policy or in retaliation for exercising her rights under
the Family and Medical Leave Act (FMLA).

It is not alleged that Mr. Gawey had any

involvement in the decision to terminate plaintiff or in any underlying events relating to the
reporting to the Department of Health or to the plaintiff’s FMLA leave. The hearsay allegations
against Mr. Gawey are simply not relevant to the issues in the case. UVRC’s Motion in Limine

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on this issue is thus granted. Plaintiff shall not introduce evidence or argument relating to the
reasons Ms. Van Eman left UVRC or to the allegations of unethical or inappropriate conduct by
Mr. Gawey.
IT IS THEREFORE ORDERED that UVRC’s Motion in Limine (Doc. 26) is granted in
part and denied in part, as set forth herein.
SO ORDERED this 9th day of September, 2014.

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