Berry v. Frank's Auto Body Carstar, Inc.

• Decision Date: 19 September 2011
• Docket Number: Civil Action No. 10–378–JGW.
• Citation: 52 Employee Benefits Cas. 2202,817 F.Supp.2d 1037
• Parties: Michael BERRY, et al. v. FRANK'S AUTO BODY CARSTAR, INC., et al.
• Court: U.S. District Court — Southern District of Ohio

52 Employee Benefits Cas. 2202

817 F.Supp.2d 1037

Michael BERRY, et al.

v.FRANK'S AUTO BODY CARSTAR, INC., et al.

Civil Action No. 10–378–JGW.

United States District Court,S.D. Ohio,at Cincinnati.

Sept. 19, 2011.

John H. Forg, III, Law Office of John H. Forg, West Chester, OH, for Michael Berry, et al.

Jonathan Wayne Philipp, Philipp & Gregory, Independence, OH, for Frank's Auto Body Carstar, Inc., et al.

MEMORANDUM OPINION AND ORDER

J. GREGORY WEHRMAN, United States Magistrate Judge.

Pending are plaintiffs' motion for partial summary judgment [Doc. 16] and defendants' motion for summary judgment. Doc. 17. Also pending are defendants' motion to strike portions of certain affidavits submitted by plaintiffs [Doc. 25] and plaintiffs' motion to strike a supplemental affidavit of defendant David Brinkman. Doc. 31. For the following reasons, defendants' motion for summary judgment will be granted as to counts one and two of plaintiffs' complaint; count three of plaintiffs' complaint will be dismissed without prejudice; plaintiffs' motion for partial summary judgment will be denied; and both motions to strike will be denied as moot.¹

I. Factual and Procedural History

Plaintiff Michael Berry (“Michael”) ² was employed by defendant Frank's Auto Body Carstar, Inc. (“Carstar”) from 2004 until September 2009. Throughout his employment Michael received medical insurance from Carstar. In June 2008, Michael's son Brennan (sometimes spelled “Brennen” in the record) was born. Initially, Brennan was a covered dependent on an insurance policy obtained by his mother, Jacqueline Berry (“Jacqueline”). Jacqueline became uninsured when she lost her job in October 2008. In December 2008, Michael and Jacqueline married. Beginning on January 1, 2009 Michael carried Jacqueline and his children (Brennan, Carson and Tanner) on the insurance policy he received from his employment at Carstar.

In May 2009, Brennan was hospitalized after losing the use of his arms. The next month Brennan was diagnosed as suffering from cerebral palsy and he began receiving daily medication and frequent physical therapy. Plaintiffs allege that Brinkman, the owner of Carstar, thereafter began complaining to Michael and/or Jacqueline about the insurance costs associated with Brennan's treatment.

On September 8, 2009 Michael was working at Carstar when he got into an argument with another employee, Kristie Chisenhall, at an office near the front of Carstar. Though witnesses reported that Chisenhall remained at least relatively calm, Michael became highly irate. Michael loudly called Chisenhall a “fat ass bitch,” and told Chisenhall that she was stupid and nobody liked her. Michael screamed at Chisenhall to “shut the f* * * up” and called her a “fat bitch.” Michael told Chisenhall that “you'll get yours; you'll see” and told Chisenhall she should “go home to [her] fat f* * *ing family.” Chisenhall felt harassed and physically threatened and stated that Michael lunged at her in what she perceived to be a threatening way. Lisa Wamprect, an employee of Carstar who witnessed the argument, stated that Michael “was lunging at the glass wall between he and Kristie [Chisenhall]” and that she (Wamprect) “was scared of what he [Michael] was going to do.” Doc. 24–2, p. 3. Tim Brengel, another employee of Carstar who witnessed the argument, stated that “all hell had broken loose.” Doc. 17–1, p. 3. Brengel also stated that Michael “kept smacking his hands together and lunging at her [Chisenhall].” Id. Brengel deemed Michael to have been “totally out of control.” Id. Michael left Carstar's premises after the argument to pick up his children from daycare. After leaving Carstar, Michael screamed to Brinkman on the phone, “I told you to fire that fat bitch.” Doc. 17–2, p. 4.

In his affidavit, Michael admits to having engaged in a shouting match with Chisenhall. Michael admitted yelling at Chisenhall to “shut up, fat bitch,” to telling her to “shut the f* * * up” and asking her why she did not “go home to your f* * *ing family.” Doc. 20–1, p. 3. Michael contended, however, that his argument with Chisenhall “was not worse that [sic] a number of other arguments I had witnessed, or even participated in.” Id. In responses to requests for admission, Michael denied lunging at Chisenhall during the argument in question, but admitted making hand gestures toward her. Doc. 17–2, p. 6.

Brinkman suspended Michael and Chisenhall and retained an independent human resources consultant, Jody Forman, to conduct an investigation. Forman interviewed witnesses ³ and ultimately recommended that Carstar terminate Michael's employment. Carstar terminated Michael's employment on September 12, 2009–three days after the argument he had with Chisenhall.

Concerned about insurance coverage, Jacqueline later contacted Brinkman to ascertain how to obtain COBRA insurance coverage. Eventually, Brinkman directed Jacqueline to speak to Philip DuBois, Carstar's insurance broker. DuBois ultimately agreed to keep the Berrys on Carstar's health plan through the end of that year if they (the Berrys) paid the premiums. The Berrys were insured through Carstar's policy with Anthem until April 2010, when Michael obtained health insurance from his new employer.

In June 2010, Michael, Jacqueline and their three minor children (Brennan, Carson and Tanner) (collectively “Plaintiffs”) brought this action against Carstar and Brinkman (collectively “Defendants”), raising three causes of action. First, plaintiffs allege retaliatory termination in violation of the Employee Retirement Income Security Act (“ERISA”). Second, plaintiffs allege defendants violated plaintiffs' COBRA rights by failing to notify them of their COBRA rights. Third, plaintiffs allege defendants discriminated against Michael on the basis of his association with Brennan, in violation of Ohio Revised code (“ORC”) 4112.02(A) and 4112.99.

II. AnalysisA. Motions to Strike

Defendants ask the Court to strike portions of affidavits offered by plaintiffs on hearsay grounds. Doc. 25.⁴ Plaintiffs contend the material in question is not inadmissible hearsay as it is offered “for the purpose of demonstrating notice of the falsity of DuBois' assertion that plaintiffs were receiving their full COBRA benefits[,]” Doc. 25, p. 2, and showing notice is an admissible purpose for using out-of-court statements. See, e.g., United States v. Crosgrove, 637 F.3d 646, 657–58 (6th Cir.2011). Hearsay cannot be considered when ruling on a motion for summary judgment. Wiley v. United States, 20 F.3d 222, 226 (6th Cir.1994). But motions to strike are disfavored; ⁵ a Court should ignore inadmissible evidence instead of striking it from the record. See, e.g., Lombard v. MCI Telecommunications Corp., 13 F.Supp.2d 621, 625 (N.D.Ohio 1998). Because the motions for summary judgment may be properly resolved without consideration of the materials in question, the Court need not definitively determine whether the materials are inadmissible hearsay.

Similarly, defendants seek to strike a portion of Jacqueline's second affidavit in which she states that Brinkman said, “you guys are killing me on insurance.” According to defendants, that statement is inadmissible because it is contradictory to Jacqueline's deposition testimony in which she testified only that Brinkman said “you guys are killing me” with no reference to insurance. See, e.g., Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir.1997) (“a party cannot create a genuine issue of material fact by filing an affidavit, after a motion for summary judgment has been made, that essentially contradicts his earlier deposition testimony.”). However, as defendants are entitled to summary judgment even if the entire phrase “you guys are killing me on insurance” is considered, the motion to strike may be denied as moot.

Defendants also seek to strike exhibit C to Jacqueline's deposition, a document purporting to be a letter to Michael from Anthem insurance. See Doc. 16–2, p. 65. Defendants contend the document should be stricken because it is unauthenticated and “[o]nly authenticated documents may be considered on summary judgment.” Green v. Throckmorton, 2010 WL 4279191, at *9 (S.D.Ohio Oct. 22, 2010). Plaintiffs assert the document is properly authenticated via circumstantial evidence as Jacqueline asked an Anthem representative to send a letter documenting their conversation and she received exhibit C in response. Again, however, the Court need not resolve that argument because the motions for summary judgment may be adequately and properly resolved without consideration of the exhibit in question.

In their motion to strike, plaintiffs seek to strike a supplemental affidavit of Brinkman, as well as portions of defendants' reply to plaintiffs' response to defendants' motion for summary judgment, because Brinkman refers to a decision of the Ohio Unemployment Compensation Review Commission. Doc. 31. Plaintiffs' argument is based on ORC § 4141.281(D)(8), which provides in relevant part that no finding of fact or law in an unemployment proceeding “shall be given collateral estoppel or res judicata effect in any separate or subsequent judicial ... proceeding ....” Defendants contend that statute is inapplicable because they are merely using the decisions denying Michael's claim for unemployment to demonstrate that they had a basis to terminate Michael, but are not relying on those unemployment decisions to completely preclude Michael's claims in this action. The Court need not resolve this claim based entirely on Ohio state law because defendants are entitled to summary judgment, even if the unemployment-related evidence is not considered by the Court.

B. Summary Judgment

Plaintiffs ask for summary judgment on only count two of their complaint, which contends defendants failed to notify plaintiffs of their COBRA rights. Defendants seek complete summary judgment on all counts.

1. Standard of Review

Summary judgment is proper only if...