Baab v. AMR Services Corp.

Citation811 F. Supp. 1246
Decision Date06 January 1993
Docket NumberNo. 5:91 CV 2574.,5:91 CV 2574.
PartiesLori L. BAAB, Plaintiff, v. AMR SERVICES CORPORATION, Defendant.
CourtU.S. District Court — Northern District of Ohio

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Robert J. Ohlweiler, Canton, OH, for plaintiff.

Carolyn K. Seymour, Robert M. Wolff, Duvin, Cahn & Barnard, Cleveland, OH, for defendant.

ORDER

SAM H. BELL, District Judge.

I. INTRODUCTION

Currently before the court is defendant's motion for summary judgment, Docket # 26. Final briefing on this matter was completed on the 2nd of November, 1992, rendering the defendant's motion ripe for adjudication.

The circumstances which culminated in this litigation may be briefly stated as follows. Plaintiff was an employee of the defendant, a servicer of airlines. Plaintiff omitted and/or misrepresented some facts on her employment application. Unaware of plaintiff's misstatements, the employer hired her as a ramp serviceperson (baggage handler and aircraft cleaner). Thereafter, plaintiff suffered injuries precluding uninterrupted job performance; she also suffered from epileptic seizures. After being examined by a company physician, plaintiff was prohibited from returning to her position as a ramp serviceperson. Plaintiff presently remains on the defendants records as an employee on an unpaid leave of absence. Greater factual detail, where necessary, is provided below.

Plaintiff, a citizen of Ohio, filed her complaint in an Ohio state court in November of 1991. That complaint, brought against three out-of-state corporate defendants, was promptly removed by the defendants on the basis of diversity jurisdiction. Since that time, the defendants moved for, and were granted dismissal of the portion of plaintiff's case. On the 27th of July, 1992, this court entered an order which concluded:

Defendants AMR Corporation and American Airlines are hereby dismissed as parties to this cause. Further, the third count of the complaint is dismissed in its entirety for failure to state a claim upon which relief can be granted.

(Order Granting Defendants' Motion to Dismiss, Docket # 17). Hence, plaintiff is left with a redacted complaint, which raises three state law1 claims, to wit: constructive discharge for sexual harassment, (count one), intentional infliction of emotional distress (count two) and discriminatory discharge based upon plaintiff's handicapped status, epilepsy (count four).2 Defendant has moved for summary judgment on all counts. In so doing, the defendant raises novel issues of law which, unfortunately, has both required some degree of deliberation and accounts for the length of the following opinion.

II. STANDARD OF REVIEW

In reviewing a motion for summary judgment, a court must consider the pleadings, related documents, evidence, and all reasonable inferences in a manner most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979). Rule 56 provides, in relevant part, as follows:

(c) ...
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
. . . . .
(e) ...
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Three Supreme Court cases have provided guidance as to the nature of the respective burdens allocated under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The ultimate burden lies with the non-moving party to show the existence of a genuine issue of material fact. "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts ... In the language of the Rule, the non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.' Fed.Rule Civ.Proc. 56(e)." Matsushita, 475 U.S. at 586-587, 106 S.Ct. at 1356 (emphasis supplied). "In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The court in Anderson held that "the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff had had a full opportunity to conduct discovery." Anderson, 477 U.S. at 257, 106 S.Ct. at 2514.

On the other hand, the moving party's burden under Rule 56 is lighter.

Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c) ... suggests the absence of such a requirement.

Celotex, supra, at 323, 106 S.Ct. at 2553 (emphasis supplied).

The Sixth Circuit Court of Appeals, in Street v. J.C. Bradford and Co., 886 F.2d 1472 (6th Cir.1989) recently reviewed court decisions and commentary regarding the impact of Anderson, Celotex, and Matsushita on summary judgment practice. The court concluded that a "new era" in summary judgment practice has opened in the court system as a result of these opinions.

Scholars and courts are in agreement that a "new era" in summary judgments dawned by virtue of the Court's opinions in these cases ... On the whole, these decisions reflect a salutary return to the original purpose of summary judgments. Over the years, decisions requiring denial of summary judgment if there was even a suggestion of an issue of fact had tended to emasculate summary judgment as an effective procedural device.

Street, supra, at 1476.

The court enunciated the following "new era" principles, among others: as on federal directed verdict motions, the "scintilla" rule applies, i.e., the respondent must adduce more than a scintilla of evidence to overcome the motion; the respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment"; the trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact. Id. at 1479-1480 (footnotes and citations omitted).

With these standards in mind, the court shall address the defendant's motion.

III. LAW AND ANALYSIS
A. The After-Acquired Evidence Doctrine

The defendant's first contention is that the summary judgment is appropriate on all remaining counts on the basis of what has come to be called the after-acquired evidence doctrine. See e.g., Summers v. State Farm Mutual Auto Ins. Co., 864 F.2d 700 (10th Cir.1988). This concept arises when an employee has engaged in misconduct, either prior to employment or during her employment, and then brings a claim for discriminatory discharge. At its most basic level, this doctrine holds that if "an employer can prove that, had it known of its employee's misconduct, it would have terminated his or her employment," the plaintiff employee may not recover on her civil rights claim. McKennon v. Nashville Banner Pub. Co., 797 F.Supp. 604, 608 (M.D.Tenn.1992). Although both defendant and relevant courts have proclaimed that this doctrine has been "adopted by the Sixth Circuit", its adoption of this standard is not, standing alone, conclusive for the purposes of this case. Id. Although it is clear that the after-acquired evidence doctrine governs federal claims of discrimination, see Paglio v. Chagrin Valley Hunt Club Corp., 1992 WL 144674, 1992 U.S.App. LEXIS 15399 (6th Cir.1992), in the case at bar we deal with discriminatory discharge claims premised upon Ohio law. Thus, Ohio's actual or prospective adoption of this doctrine is our initial concern.

i. Application of the After-Acquired Evidence Doctrine in Ohio

In deciding a question of state law, this court is, of course, bound by the determination of the state's highest court. To this court's knowledge, the Ohio Supreme Court has not addressed the after-acquired evidence doctrine. Where a state's highest court has not spoken on a precise issue, "a federal court may not disregard a decision of the state appellate court on point, unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1485 (6th Cir.1989). This rule applies regardless of whether the appellate court decision is published or unpublished. Id. See also Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1140 (6th Cir.1986). This court's...

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