Gerald v. Univ. of S. Miss.

• Decision Date: 15 January 2014
• Docket Number: CIVIL ACTION NO. 2:12cv147-KS-MTP
• Court: U.S. District Court — Southern District of Mississippi
• Parties: DR. BONNIE GERALD PLAINTIFF v. UNIVERSITY OF SOUTHERN MISSISSIPPI (USM); DR. MARTHA SAUNDERS, INDIVIDUALLY AND OFFICIALLY; DR. ROBERT LYMAN, INDIVIDUALLY AND OFFICIALLY; DR. KATHY YADRICK, INDIVIDUALLY AND OFFICIALLY; DR. MIKE FORSTER, INDIVIDUALLY AND OFFICIALLY DEFENDANTS

DR. BONNIE GERALD PLAINTIFF v. UNIVERSITY OF SOUTHERN MISSISSIPPI (USM);DR. MARTHA SAUNDERS, INDIVIDUALLY AND OFFICIALLY;DR. ROBERT LYMAN, INDIVIDUALLY AND OFFICIALLY;DR. KATHY YADRICK, INDIVIDUALLY AND OFFICIALLY;DR. MIKE FORSTER, INDIVIDUALLY AND OFFICIALLY DEFENDANTS

CIVIL ACTION NO. 2:12cv147-KS-MTP

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION

SO ORDERED AND ADJUDGED January 15, 2014

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Defendants' Motion for Summary Judgment [26] and Motion to Strike Affidavit of Dr. Rocco A. Barbieri ("Motion to Strike") [39]. Having considered the submissions of the parties, the record, and the applicable law, the Court finds that both motions should be granted in part and denied in part.

BACKGROUND

Plaintiff Dr. Bonnie Gerald asserts several federal and state law claims in relation to her former employment at the University of Southern Mississippi ("USM") in Hattiesburg, Mississippi. Defendant Dr. Martha Saunders was the President and Defendant Dr. Robert Lyman was the Provost of USM at all times relevant to the Complaint. Defendant Dr. Kathy Yadrick was Dr. Gerald's supervisor and is the Chair of the Department of Nutrition and Food Systems ("NFS") at USM. Defendant Dr. Mike Forster is the Dean of USM's College of Health, which encompasses the NFS, and is Dr. Yadrick's supervisor.

In May of 2007, Dr. Gerald was hired as an Associate Professor of Nutrition and Food Systems at USM. This was a tenure track appointment. The tenure track at USMis typically composed of six annual contracts. Prior to her employment at USM, Dr. Gerald was a tenured professor at Louisiana Tech University ("LTU"). USM gave Dr. Gerald a one-year credit toward tenure in light of her prior employment at LTU.

On October 10, 2009, during the third year of her employment, Dr. Gerald was involved in a serious motorcycle accident. Dr. Gerald sustained multiple fractures (including, but not limited to, two broken legs, two broken ankles, a broken arm, and a broken clavicle) and spleen damage, which necessitated extensive medical treatment and hospitalization. Dr. Gerald was unable to work for the remainder of the fall semester and missed the entire spring semester of 2010 as a result of her injuries. Dr. Gerald taught one online class and participated in a research project in the summer of 2010. She resumed teaching classes in person in the fall of 2010. Dr. Gerald used a walker or cane at various times after she returned to teaching at USM. Also, Dr. Gerald visited the hospital approximately five (5) times between August of 2010 and May of 2011 for treatment relating to the injuries she sustained in her motorcycle accident or for resulting complications.

All faculty at USM undergo annual performance evaluations. In addition, tenure track faculty receive a "pre-tenure" review during the third year of their employment. Generally, the purpose of the pre-tenure review is to determine if a faculty member is making satisfactory progress toward tenure. Dr. Gerald's pre-tenure review should have occurred in the spring of 2010. However, the review was delayed until 2011 because of Dr. Gerald's motorcycle accident. Dr. Gerald's pre-tenure review processed through the following decisionmakers: (1) the NFS pre-tenure review committee (composed of tenured faculty members Dr. Denise Brown, Dr. Carol Connell, and Dr.Elaine Molaison); (2) the NFS Chair, Dr. Yadrick; (3) the College Advisory Committee ("CAC") (composed of seven tenured faculty members from the College of Health); (4) the Dean of the College of Health, Dr. Forster; and (5) the Provost, Dr. Lyman.

On February 9, 2011, the members of the NFS pre-tenure review committee (the "NFS Committee") unanimously recommended against the renewal of Dr. Gerald's employment. (See Doc. No. [26-10].) The NFS Committee noted deficiencies in "minimum requirements for category 2 research dissemination"; student evaluation ratings per "the department mean of 4.33"; and Dr. Gerald's responsiveness to "issues raised by students since her appointment . . . ." (See Doc. No. [26-10] at pp. 1-2.) On March 1, 2011, Dr. Yadrick recommended against the continued employment of Dr. Gerald. (See Doc. No. [26-11].) Dr. Yadrick found that Dr. Gerald did not meet "important expectations of her employment as an associate professor; her teaching performance has been a particular issue of chronic concern." (Doc. No. [26-11] at p. 1.) On March 21, 2011, the CAC, by a vote of 6-0 (with one recusal), concurred with the NFS Committee and Dr. Yadrick, and recommended that "Dr. Gerald not be granted the requested pre-tenure renewal contract." (Doc. No. [26-12].) On April 7, 2011, Dr. Forster concurred with the evaluations of the NFS Committee, Dr. Yadrick, and the CAC. (See Doc. No. [26-13].) On May 12, 2011, Dr. Lyman advised Dr. Gerald in writing that she had "received a negative endorsement from the department tenured faculty, department chair, the college advisory committee, and the Dean." (Doc. No. [26-14].) Dr. Lyman further provided that he agreed with the determination that Dr. Gerald was not making satisfactory progress toward tenure. As a result, Dr. Gerald was to "be issued a terminal contract for 2011-2012." (Doc. No. [26-14].)

On July 22, 2011, before any terminal contract was issued to Dr. Gerald, she advised Dr. Forster in writing that she was resigning effective August 19, 2011, so that she could "pursue other interests." (Doc. No. [26-15] at p. 1.) Also on July 22, Dr. Gerald advised Dr. Yadrick in writing that, inter alia, she refused to continue to work for a supervisor who views her "severe injuries as annoyances and makes tactless remarks about my physical condition in the presence of staff". (Doc. No. [26-15] at p. 2.)

On February 9, 2012, Dr. Gerald submitted her Charge of Discrimination [26-12] to the Equal Employment Opportunity Commission ("EEOC"), alleging disability and gender discrimination. On May 25, 2012, the EEOC issued its Dismissal and Notice of Rights [26-17].

On July 3, 2012, Dr. Gerald filed suit against the Defendants in the Circuit Court of Forrest County, Mississippi. (See Compl. [26-1].) The Complaint asserts that the Defendants intentionally discriminated against Dr. Gerald because of her disability and failed to provide reasonable accommodations in violation of the Americans with Disabilities Act ("ADA") and/or the Rehabilitation Act of 1973. Gender discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended to include the Lilly Ledbetter Fair Pay Act of 2009, is alleged on the basis of a male professor, who was purportedly less qualified than Dr. Gerald, receiving a favorable pre-tenure review. Dr. Gerald further seeks relief under Title 42 U.S.C. § 1983 for alleged violations of her rights to due process and equal protection, as well as her rights under the First Amendment. Dr. Gerald also alleges the following state law claims: intentional infliction of emotional distress, negligent infliction of emotional distress, breach of implied contract, constructive discharge, outrage, negligence, menace, promissory estoppel,equitable estoppel, detrimental reliance, and breach of express contract.

On August 31, 2012, the Defendants timely removed the proceeding to this Court on the basis of federal question subject matter jurisdiction under Title 28 U.S.C. § 1331. (See Notice of Removal [1].) On October 10, 2013, the Court granted in part and denied in part Defendants' Motion to Strike the Plaintiff's Designation of Dr. Rocco A. Barbieri as an Expert on the Plaintiff's Alleged Disabilities [25]. (See Op. & Order [33].) The Court found that Dr. Barbieri had not been properly designated as an expert witness, and thus held that "Dr. Barbieri will not be permitted to present expert testimony at trial under Federal Rule of Evidence 702." (Op. & Order [33] at p. 12.) However, the Court found that Dr. Barbieri could testify as a fact witness "regarding his treatment of the Plaintiff as reflected in any medical record documenting the treatment." (Op. & Order [33] at pp. 12-13.)

On September 6, 2013, Defendants filed their Motion for Summary Judgment [26]. Dr. Gerald submitted an affidavit from Dr. Barbieri in support of her opposition to summary judgment. (See Barbieri Aff. [34-6].) On November 12, 2013, Defendants filed their Motion to Strike [39], arguing that Dr. Barbieri's affidavit violates the Court's October 10 Opinion and Order [33].

DISCUSSION

I. Motion to Strike [39]

The following portions of Dr. Barbieri's affidavit are the subject of this motion:

3. Although I have been, for many years, a Board Certified Orthopedic Surgeon, a layman could easily see that, throughout the years 2010 through 2011, Dr. Gerald was disabled, physically impaired, and was substantially limited in regard to her ability to work, walk, stand, or engage in numerousother major life activities to include: caring for herself, performing manual tasks, sleeping, lifting, bending, and/or concentrating.

4. In laymen's terms she had two broken legs, two broken ankles, a broken arm, fractures, spleen damage and a broken clavicle. She had multiple skin grafts, infections, requiring additional hospitalization, that resulted from the foregoing. These infections contributed significantly to extensive swelling in her extremities. She needed considerable assistance and accommodations regarding walking or standing or working. Often she needed a cane, walker, and/or wheelchair to ambulate.

5. Clearly, she was disabled in 2010 and 2011. Clearly, as anyone could see, she needed assistance and accommodations so she could work.

6. Against my advice, she did her best to return to work because she needed to survive. My office allowed her to return to work assuming, because it was an obvious need, that she would be assisted and accommodated in her work - - particularly in the teaching aspect of her profession.

(Barbieri Aff. [34-6] at...