Davis v. Flexman, C-3-96-394.

• Decision Date: 23 August 1999
• Docket Number: No. C-3-96-394.,C-3-96-394.
• Citation: 109 F.Supp.2d 776
• Parties: Julia Ann DAVIS, et al., Plaintiffs, v. Jerry E. FLEXMAN, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

109 F.Supp.2d 776

Julia Ann DAVIS, et al., Plaintiffs, v. Jerry E. FLEXMAN, et al., Defendants.

No. C-3-96-394.

United States District Court, S.D. Ohio, Western Division.

August 23, 1999.

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Lee Charles Falke, Lee C Falke & Associates, Dayton, OH, for Plaintiffs.

Nicholas D Satullo, Laura M Sullivan, Richard Haber, Reminger & Reminger, Cleveland, OH, W. Michael Conway, Conway & Hall, Dayton, OH, for defendants.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. # 41): PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. # 40) OVERRULED; CONFERENCE CALL SET

RICE, Chief Judge.

This matter comes before the Court upon the Defendants' Motion for Summary Judgment (Doc. # 41) and Plaintiff Joanne Voelkel's Motion for Partial Summary Judgment (Doc. # 40). The Defendants seek summary judgment on the Plaintiffs' eleven-count amended Complaint (Doc. # 30), which alleges violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, et seq. (Counts I, II, and III); the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq. (Counts IV, VI, and IX); Ohio Revised Code Chapter 4112 (Counts V, VII, and X); breach of contract (Count VIII) and conversion (Count XI). Plaintiff Joanne Voelkel seeks summary judgment on her breach of contract and conversion claims. (Counts VIII and XI).

I. Factual Background¹

The Defendants in this litigation are Jerry E. Flexman ("Flexman"), individually, and Jerry E. Flexman, Ph.D., Inc., d.b.a. the Flexman Clinic. Dr. Flexman serves as the sole shareholder and only officer of the corporation. (Jerry Flexman depo. at 8-9). The Plaintiffs are Joanne Voelkel, a former independent contractor who performed counseling services at the Flexman Clinic, and Julia and Steven Davis, who sought marital counseling from Voelkel. The present dispute stems from Flexman's failure to provide a sign language interpreter for Voelkel's counseling sessions with the Davises, Flexman's termination of Voelkel's independent contractor "affiliate agreement," and Voelkel's contention that she has been compensated improperly under the terms of the affiliate agreement.

Voelkel began working for the Flexman Clinic in November, 1991. (Voelkel depo. at 15). She signed an "affiliate agreement" with the Clinic in 1993. The agreement identified Voelkel as an independent contractor. (Id. at 17). It also provided that her compensation would be "50% of collections." (Voelkel affidavit at Exh. A, ¶ 6). Julia and Steven Davis first consulted Voelkel in January, 1996, seeking counseling for marital problems and Julia's depression. (Id. at 69). During their first visit, the Davises expressed their need for an interpreter. (Id. at 70; S. Davis depo. at 23-24). They explained that Julia Davis particularly needed an interpreter, because she communicated best through sign language and was not proficient with the English language. (Id.). Voelkel left a note in Jerry Flexman's office mailbox on January 25, 1996, explaining the Davises' request. (Id. at 72-73). She then spoke with Flexman personally on January 29, 1996, and he told her the Clinic had no obligation to provide the Davises with an interpreter. (Id. at 76). He also questioned who would be responsible for paying for the interpreter. (Id.).

Voelkel subsequently called a social services agency, obtained a copy of the ADA, and placed it in Flexman's mailbox. (Id. at 78-80). She then met again with the Davises on February 1, 1996, and they renewed their request. (Id. at 80). After receiving yet another interpreter request from Julia Davis on February 28, 1996, Voelkel spoke with Flexman on April 5, 1996. (Id. at 82, 85). He told her he still had not read the ADA, but believed the Clinic was not responsible. (Id. at 85). Flexman also told Voelkel she could provide the interpreter if she believed the Davises needed one. (Id.). Julia Davis then provided her own interpreter for one session. Voelkel told Flexman about the session on May 8, 1996, and explained that having an interpreter present had been beneficial. (Id. at 88). Around that time, the Davises also made a formal, written request to the Clinic for an interpreter. (Id. at 89). Flexman consulted an attorney about his legal obligation to provide such a person sometime in May, 1996. (Affidavit of Stephen Watring at ¶ 2). The attorney advised Flexman that federal law did not impose an absolute obligation upon the Clinic to provide an interpreter. He opined that the ADA would permit the Clinic to try less expensive alternatives first. (Id. at ¶ 3).

Voelkel met with Flexman again on May 10, 1996. (Id. at 92). He suggested various "alternatives" to the Clinic paying for an interpreter, and once again stated that Voelkel could pay the expense herself. (Id. at 92-93). In late May, 1996, Flexman offered to set up a computer so Voelkel and the Davises could type messages during their counseling sessions. (Id. at 98). Voelkel was skeptical that a computer would resolve Julia Davis' problem, given her limited ability to use the English language, but she agreed to try. (Id.). The Davises also agreed to try a computer. (Id. at 99). On May 31, 1996, the Davises arrived for a counseling session, and no computer was available, even though Flexman knew about the appointment. (Id. at 102-103; S. Davis depo. at 32). Voelkel then left a detailed note in Flexman's box explaining why the Davises needed an interpreter. (Id. at 100). She spoke with Flexman again about an interpreter on June 3, 1996. He became angry, however, and she once again agreed to try less expensive alternatives first. (Id. at 100, 103).

Voelkel went on vacation until mid-June, 1996. (Id. at 23). When she returned, she found a letter in her mailbox terminating her affiliate agreement with the Clinic. (Id.). The letter was dated June 7, 1996. (Id. at 24). Voelkel met with Flexman after receiving the letter, and he agreed to allow her to maintain her relationship with the Clinic until July 31, 1996. (Id. at 25). Flexman also told Voelkel that he terminated her affiliate agreement as a result of job performance problems, including her removal of files from the office, and her failure to meet clients and complete paperwork promptly. (Id. at 25-26).

Voelkel and Flexman next met on June 24, 1996, and he mentioned having received correspondence from the Davises' attorney. (Id. at 103). The correspondence was dated June 5, 1996, and Flexman had received it on June 7, 1996. (Jerry Flexman depo. at 49). During his conversation with Voelkel, Flexman also agreed to set up a computer for the Davises' June 28, 1996, appointment with Voelkel. (Id. at 104). When the Davises arrived, however, the computer was not set up, and Voelkel had not heard from Flexman. (Id. at 104; S. Davis depo. at 57). The Davises then told Voelkel on July 8, 1996, that they did not want to schedule any more appointments at the Flexman Clinic. (Id. at 107). Voelkel subsequently began seeing the Davises on August 28, 1996, in her own private practice. She used a professional interpreter and paid $39 per hour for the service. (Id. at 109-110).²

II. Summary Judgment Standard

The Court first will set forth the parties' relative burdens once a motion for summary judgment is made. Summary judgment must be entered "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 Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Of course, [the moving party] 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.

Id. at 323, 106 S.Ct. 2548. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial[,]" quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 [6th Cir.1987]). The burden then shifts to the non-moving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a motion for judgment as a matter of law under Fed.R.Civ.P. 50. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff"). Rather, Rule 56(e) "requires...