Dodge v. U.S., No. C-3-96-110.

• Decision Date: 08 March 2001
• Docket Number: No. C-3-96-110.
• Parties: Sheila DODGE, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

Page 873

162 F.Supp.2d 873

Sheila DODGE, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

No. C-3-96-110.

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

March 8, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael Burdge, Dayton, OH, for Plaintiffs.

Pamela Stanek, Christopher Carrigg, Gregory Berberich, Dayton, OH, for Defendants.

DECISION AND ENTRY OVERRULING THE MOTION OF THE UNITED STATES TO DISMISS PLAINTIFF'S NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS, ARISING OUT OF THE ACTIONS OF CONNER AND MOORE (DOC. # 86-1); THE MOTION OF THE UNITED STATES, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT ON ABOVE MENTIONED CLAIMS (DOC. #86-2) SUSTAINED; STATE LAW RETALIATION CLAIM AGAINST FACILITIES PLUS AND RICHARD MAST IS SOLE REMAINING CLAIM; CONFERENCE CALL SET TO FIX NEW TRIAL DATE

RICE, Chief Judge.

The instant litigation arises out of the alleged sexual harassment, by two members of the United States Air Force, of Plaintiff Sheila Dodge ("Dodge"), an employee of a temporary employment agency who was assigned to Wright Patterson Air Force Base by the agency's customer.¹ Remaining as party Defendants in this litigation are the United States, Facilities Plus, Inc. ("Facilities Plus"), and Richard Mast ("Mast"). As stated previously by the Court, the instant litigation is the consolidation of three cases, C-3-96-110, C-3-96-307, and C-3-98-159.² The complex procedural history of these lawsuits was recently reiterated in this Court's Entry of October 31, 2000 (Doc. # 95), and the Court will assume the parties' knowledge of that history.³

Pending before the Court are the Motion of the United States to Dismiss Plaintiff's negligent and intentional infliction of emotional distress claims, arising out the conduct of Jim Conner ("Conner") and Patrick Moore ("Moore") (Doc. # 86-1), and its Motion, in the alternative, for Summary Judgment on those claims (Doc. # 86-2). Due to the presentation of evidence by the parties outside of the pleadings, the Government's Motion will be addressed as one for summary judgment. The Government's Motion to Dismiss (Doc. # 86-1) is, accordingly, OVERRULED. As a means of analysis, the Court will first set for the standard governing all motions for summary judgment, and will then turn the parties' arguments.

I. Standard for Motion for Summary Judgment

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 nonmoving 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 nonmoving 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 directed verdict motion (now known as a motion for judgment as a matter of law, 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 so 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 Serv., 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 the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the factfinder. 10A Wright, Miller & Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990); see also L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992)("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment....") Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.

II. Negligent Infliction of Emotional Distress Claim (Portion of Count Four)

In its Motion, the United States requests summary judgment on Plaintiff's claim of negligent infliction of emotional distress, on the ground that such a claim is not cognizable in the present circumstances. The Government argues that Ohio courts have limited negligent infliction of emotional distress claims to situations where the plaintiff was a bystander to an accident or was in fear of physical consequences to her own person. Citing Hatlestad v. Consolidated Rail Corp., 75 Ohio App.3d 184, 598 N.E.2d 1302 (1991), it argues that the claim is not recognized in the employment context. Plaintiff has responded that the Court has concluded that no employer-employee relationship existed between Plaintiff and the Government and, therefore, Hatlestad is inapposite. Plaintiff asserts that the Government cannot argue that Plaintiff is not an employee for purposes of her discrimination claims and yet argue that she is an employee for purposes of her emotional distress claims.

Ohio courts have narrowly limited the scope of negligent infliction of emotional distress claims. "Ohio courts have limited recovery for claims alleging negligent infliction of emotional distress to situations such as where the plaintiff was a bystander to an accident or was in fear of physical consequences to his own person." Gearing v. Nationwide Ins. Co., 76 Ohio St.3d 34, 40, 665 N.E.2d 1115, 1120 (1996); Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 162-63, 677 N.E.2d 308, 329 (1997)(recovery for negligent infliction of severe emotional distress has typically been limited to instances where the plaintiff has either witnessed or experienced a dangerous accident and/or was subjected to an actual physical peril); Hartwig v. United States, 80 F.Supp.2d 765 (N.D.Ohio 1999). As stated in Tschantz v. Ferguson:

[A] plaintiff may only recover for emotional harm negligently inflicted by a defendant by instituting a "traditional" claim for negligent infliction of emotional distress. Hatlestad, 75 Ohio App.3d at 191, 598 N.E.2d at 1306-1307. The plaintiff will then be required to show that he or she (1) was a bystander to an accident, (2) reasonably appreciated the peril thereof, and (3) suffered serious and foreseeable emotional distress as a result of his cognizance or fear of the peril. Paugh, paragraphs three and four of the syllabus.

97 Ohio App.3d 693, 714, 647 N.E.2d 507, 521 (1994).

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