Barry v. O'Grady

• Decision Date: 31 March 2017
• Docket Number: Case No. 2:14-cv-2693
• Parties: TERESA BARRY, Plaintiff, v. JAMES P. O'GRADY, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

TERESA BARRY, Plaintiff, v. JAMES P. O'GRADY, et al., Defendants.

Case No. 2:14-cv-2693

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

March 31, 2017

CHIEF JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Terence P. Kemp

OPINION AND ORDER

This matter is before the Court on several motions: Defendants' Motion for Summary Judgment [ECF No. 75]; Plaintiff's Objections and Motion to Strike [ECF No. 113]; and Plaintiff's Motion for Leave to File a Third Amended Complaint [ECF No. 103]. For the following reasons, the Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, Plaintiff's Objections and Motion to Strike is DENIED AS MOOT, and Plaintiff's Motion for Leave is GRANTED.

I. BACKGROUND

A. Factual Background

1. Barry's Start at the FCMC

At this stage, in which Defendants seek judgment in lieu of a trial, the Court is required to view the facts of the case in the light most favorable to Barry—the nonmoving party with respect to Defendants' Motion for Summary Judgment. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970). So long as the record indicates a genuine issue of material fact, summary judgment must be denied.

Plaintiff Teresa Barry began working at the Franklin County Municipal Court ("FCMC") in 2005. (Barry Dep. Part 1 at PageID 2721 [ECF No. 97-1].) She was hired as a judicial secretary for Judges Harland Hale and Amy Salerno. (See Barry Decl. ¶ 11 [ECF No. 104].) Barry worked for Judges Hale and Salerno for nearly two years. (See Barry Dep. Part 1 at PageID 2734-35.)

In February 2007, Barry was transferred to Judge Andrea Peeples's chambers on the 14th Floor of the FCMC. (Barry Dep. Part 1 at PageID 2734-35.)¹ Like the other municipal court judges, Judge Peeples occupied shared chambers. (See id. at PageID 2735.) Barry served as secretary to both judges in chambers: the fluctuating chambers mate and Judge Peeples. (See id.) Barry worked successfully, and without incident, as a judicial secretary for nearly five years. (See id. at PageID 2736-37.) During those years, Barry received only positive comments from judges and had no complaints filed in her performance record. (See id.) In Barry's first Employee Performance Evaluation, Judge Peeples indicated that Barry met the performance standards in eight categories and exceeded the performance standard in one category. (Id. at PageID 2738.)

2. Judge O'Grady Takes the Bench

Barry alleges that her work environment changed dramatically in December 2011 when Defendant Judge James O'Grady took the bench and joined the chambers shared by Judge Peeples. (See Barry Dep. Part 1 at PageID 2742.) According to Barry, Judge O'Grady would frequently joke and laugh with his bailiff, Amy Frank, and Judge Peeple's bailiff, Joye Saunders. (See id. at PageID 2745.) Judge O'Grady and the bailiffs would congregate near Barry's desk. (See id.) She alleges that the conversations frequently involved language that Barry considered "foul" and "demeaning to women," including regular reference to anal sex. (Id. at PageID 2743; Barry Decl. ¶ 3 [ECF No. 104].) According to Barry, Judge O'Grady, for example, used the word"fuck" on a "regular, daily basis." (Barry Dep. Part 1 at PageID 2744.) He would, Barry reports, "maybe walk off the bench and say, that guy was a fucking idiot, or she's a fucking idiot." (Id. at PageID 2744-45.) And he would, at times, use the word "bitch" when referring to women. (Id. at PageID 2746.) Judge O'Grady once commented that an attorney was "smoking hot"; he then mused: "if I wasn't married." (Id. at PageID 2744.) Judge O'Grady would also "reference attire, short skirts, things like that." (Id.) Although Barry regularly heard Judge O'Grady's comments, the comments were not directed at Barry. (Id. at PageID 2746.) According to Barry, Judge O'Grady was purportedly interested in whom Barry was dating: "He would ask if [she] had a date that weekend, where [they] went, did [they] have drinks, and [was she] going to see him again." (Id.)

Barry points to Judge O'Grady's actions toward Tracy Barnes, an employee in the assignment office, as an example of Judge O'Grady's demeaning conduct toward women. (See Barry Dep. Part 1 at PageID 2747.) Barnes submitted a writing sample as part of an application for a promotion. (Id.) Judge O'Grady opposed Barnes's promotion. (Id.) After reviewing her writing sample, he commented to his bailiff: "Look at this. . . . Look, she can't even form a fucking sentence." (Id.) After Barnes failed to get the promotion, Judge O'Grady laughed and said, "Do you think Tracy hates me now?" (Id.)

Barry also identifies several instances where Saunders read excerpts aloud from Fifty Shades of Grey in chambers during work hours. (Barry Dep. Part 2 at PageID 3101-02 [ECF No. 102].) Saunders would read excerpts of the sex acts in the book to Frank and Judge O'Grady; the three of them would then share a laugh. (Id. at PageID 3102.)

3. Description of a Female Attorney

According to Barry, the incident that most disturbed her was a sexually explicitconversation between Judge O'Grady and the bailiffs on November 14, 2012. (See Barry Dep. Part 1 at PageID 2776.) The conversation revolved around the alleged sexual exploits of a female attorney practicing before the municipal court. (Id.) According to Barry, bailiff Frank did most of the talking. She described to Saunders and Judge O'Grady how the female attorney was seeing a male attorney. (Id.) The male attorney purportedly got "his whole down-below waxed, his balls, everything," and the female attorney, as relayed by Frank, would "lick[] him like a lap dog." (Id. at PageID 2776-77.) Frank then related that the same female attorney supposedly had sex with the male attorney and also with a second male attorney on the same day. (Id. at PageID 2777.) At some point in the conversation, Saunders brought up anal sex. (Id. at PageID 2778.) Saunders joked that it "was an exit only, and nothing entered in." (Id.) Judge O'Grady also contributed to the gossip. (Id.) He remarked about the female attorney "being good at what she does." (Id.) After laughing about the attorney's sex life, Judge O'Grady and the bailiffs joked about the same attorney's conviction on three impaired driving charges. (Id. at PageID 2779.)

After listening to Judge O'Grady and the bailiffs, Barry decided to act. She sent a private Facebook message to the female attorney that same evening. (Barry Dep. Part 1 at PageID 2782.) In the message, Barry informed the attorney that she might want to be more careful with what she talks about with respect to her personal life. (Id. at PageID 2783.) The attorney responded with concern; she indicated that she would come in to see Barry the next day. (Id. at PageID 2783-84.)

That same evening, Barry also made a posting on Facebook to her friends. (Barry Dep. Part 1 at PageID 2786-88.) She posted:

I spent this afternoon getting sick from my co workers talking horrible about there friends and mine. It all came down to being jealous. The men and women are hot and the people especially women are je[a]lous pigs. Can u imagine thinking someone was ur friend and that bitch u thought was xlur friend ran her mouth. Uknow what. Get in shape and stop eating and drinking and u could have her life. As far as the others chiming in ur just miserable. So she has a great sex life. So do I . . . women are judged by beauty more from jealous women than anyone. Oh one last thing the one wom[a]n that chimes in alot prayed and bowed her head to pray. I guarantee u she is not in his plan.

(Barry Facebook Post at PageID 657 [ECF No. 75-11].) At her deposition, Barry decoded this post. The "hot" men and women she referenced were the attorneys referenced above. (Barry Dep. Part 1 at PageID 2789.) The "miserable" people chiming in were Frank, Saunders, and Judge O'Grady. (Id. at 2790.) And the woman who bowed her head to pray was Saunders. (Id. at PageID 2792.)

The next day, November 15, 2012, the female attorney came to chambers and spoke with Barry. (Barry Dep. Part 1 at PageID 2797.) The conversation was brief. Barry informed the attorney that Frank, Saunders, and Judge O'Grady had talked about her sex life and her OVIs. (Id. at PageID 2800-01.) Barry then advised her: "be careful what you tell people because, you know, it gets around and it can be embarrassing and people talking about you." (Id. at PageID 2798.) After the conversation with Barry, the female attorney walked into Judge O'Grady's office and shut the door. (Id. at PageID 2798-99.) The attorney was in Judge O'Grady's office for 10 to 15 minutes. (Id. at PageID 2799.) The attorney left and then Judge O'Grady eventually walked out of his office to take the bench. (Id.) His face "was beet red" and, according to Barry, he looked at her "like he probably wanted to kill [her]." (Id.) At one point that day, he stated that he wished he could fire somebody. (See Barry Dep. Part 2 at PageID 3063 [ECF No. 102].)

In the grievance she submitted to the Office of Disciplinary Counsel ("ODC"), and in her deposition, Barry expressed disbelief that the attorney would speak to Judge O'Grady. (Barry Dep. Part 1 at PageID 2799-801; ODC Compl. at PageID 596 [ECF No. 75-7].)² As Barryexplained: "I was trying to give her a heads-up that people were talking about her, and she decided on her own to go talk to Judge O'Grady. . . . [I]f that was me, I wouldn't have done that." (Barry Dep. Part 1 at PageID 2800.)

Following the incident, Judge O'Grady was angry and hostile toward Barry. (Barry Dep. Part 2 at PageID 3063.) Barry was on medical leave from November 28, 2012, through January 4, 2013. (See FCMC Time Clock at PageID 2687 [ECF No. 96-3].) According to Barry, Judge O'Grady's hostility continued after Barry returned from leave. He told Barry, for example, that she needed to take her daughter's picture off her computer's screen-saver. (Barry Dep. Part 2 at PageID 3063.)

4. The April 18 Employee Performance Evaluation

Barry received an Employee...