O'hara v. Univ. of West Fla.

• Decision Date: 24 August 2010
• Docket Number: Case No. 3:07cv351/RS.
• Citation: 750 F.Supp.2d 1287
• Parties: Sharon E. O'HARA, Plaintiff,v.UNIVERSITY OF WEST FLORIDA, Defendant.
• Court: U.S. District Court — Northern District of Florida

750 F.Supp.2d 1287

Sharon E. O'HARA, Plaintiff,

v.UNIVERSITY OF WEST FLORIDA, Defendant.

Case No. 3:07cv351/RS.

United States District Court, N.D. Florida,Pensacola Division.

Aug. 24, 2010.

Sharon E. O'Hara, Pensacola, FL, pro se.Kurt Eric Ahrendt, Glen Allen Bassett, Attorney Generals, Tallahassee, FL, for Defendant.

ORDER

RICHARD SMOAK, District Judge.

Before me are the Magistrate Judge's Report and Recommendation (Doc. 81), Defendant's Objections To Magistrate's Report and Recommendation (Doc. 84), and Plaintiff's Opposition To Summary Judgment Denying The Retaliation Complaint (Doc. 85). I have considered Defendant's and Plaintiff's objections de novo.

IT IS ORDERED:

1. The Magistrate Judge's Report and Recommendation is approved and incorporated in this Order.

2. The relief requested by Defendant's Motion for Summary Judgment (Doc. 74) is granted as to Plaintiff's claim of retaliation in violation of Title VII. The clerk shall enter partial summary judgment for Defendant as to Plaintiff's claim of retaliation.

3. Defendant's Motion for Summary Judgment is denied as to Plaintiff's claim of sexual harassment.

REPORT AND RECOMMENDATION

MILES DAVIS, United States Magistrate Judge.

This case filed pursuant to 42 U.S.C. § 2000e, Title VII of the Civil Rights Act (“Title VII”) is before the court upon defendant's motion for summary judgment and statement of facts (doc. 74 & 75). The court entered a detailed order directing the plaintiff to respond (doc. 76) and she has done so. (Doc. 78). Upon review of the evidence in the summary judgment record, it is the opinion of the undersigned that defendant's motion for summary judgment should be granted in part and denied in part.

PROCEDURAL HISTORY and FACTS

Plaintiff Sharon O'Hara began employment with the University of West Florida on or about January 31, 2003 as a contract employee of the Florida Small Business Development Center (“SBDC”) Network. (Doc. 74, exh. 1 at ¶ 7). ¹ She held the position of Coordinator for the Defense Economic Training Assistance (“DETA”) Program. ( Id.) This position was a grant-funded contract position for a discrete and finite term, with no guarantees of future employment and which was subject to termination at any time. ( Id.) Ms. O'Hara's contract term expired on September 29, 2005. (Doc. 74, exh. 2 at exh. D). On Monday, April 18, 2005, Jerry Cartwright wrote what can be characterized as a letter of reprimand to Ms. O'Hara regarding her unprofessional behavior at a departmental meeting held on the previous Friday. (Doc. 74, exh. 2, exh. B). Ms. O'Hara wrote a lengthy rebuttal letter in her defense the same day. (Doc. 74, exh. 2, exh. C). The following week, ² Mr. Cartwright gave Ms. O'Hara written notice that her employment with the University would end effective September 29, 2005, and that effective immediately she should return keys and her office cell phone and begin working from home. (Doc. 74, exh. 2, exh. D). She filed a complaint of discrimination with the EEOC and filed this case upon receipt of her right to sue letter.

In her fifth amended complaint, Ms. O'Hara asserts that UWF discriminated against her in violation of Title VII by subjecting her to sexual harassment and retaliation. The alleged discrimination took the form of terminating Ms. O'Hara's employment, retaliating against her and treating her unequally. (Doc. 46 at 3).³ Ms. O'Hara contends that UWF failed to take action when formal complaints were made ⁴ concerning the sexual harassment and inappropriate comments of Jerry Cartwright and Larry Strain, and that UWF allowed the behavior to continue, thus tacitly endorsing a hostile work environment. (Doc. 46 at 7). Ms. O'Hara asserts that Jerry Cartwright made advances and inappropriate comments to her, several times telling her words to the effect of “you know what you have to do for me to have your program succeed,” and that he retaliated against her by sending her home to “work from home” in April of 2005 for the remaining five months of her contract and did not renew that contract. ( Id.) Larry Strain is also alleged to have made sexually harassing comments both in private and in front of other employees. Ms. O'Hara lists several examples of the alleged harassment in her complaint. She also asserts that she took all of the prescribed steps to report the behavior of Strain and Cartwright to her supervisor and to the UWF Human Resources Department but was denied assistance in preventing further sexual harassment and retaliatory remarks. ( Id. at 8). Furthermore, she asserts that Jerry Cartwright did not renew her contract because she refused to give in to his sexual harassment and because she reported his and Larry Strain's behavior to the Human Resources Department. ( Id.)

Defendant has moved for summary judgment and filed a statement of facts and various summary judgment materials including excerpts from Ms. O'Hara's deposition and two supporting affidavits. (Doc. 74–75). According to the defendant, these documents establish that there are no genuine issues of material fact to be tried and further establish that Ms. O'Hara cannot prove she was subjected to sexual harassment or retaliation. Defendant first contends that Ms. O'Hara cannot establish a prima facie case of sexual harassment. Without affirming or denying that veracity of Ms. O'Hara's allegations of sexual harassment, defendant maintains that she has not established that the alleged harassment was sufficiently severe or pervasive enough to alter the terms and conditions of her employment. Even if she had met the elements of a prima facie case, defendant contends that the adverse employment decision stemmed from a legitimate, non-discriminatory reason: Ms. O'Hara's poor interpersonal skills and the effect her behavior was having on the SBDC, both locally and regionally. With respect to Ms. O'Hara's retaliation claim, defendant contends that she cannot establish a prima facie case because she did not engage in protected activity, and that if she did, there was no causation between the allegedly protected activity and the adverse employment action.

The court directed Ms. O'Hara to respond to the defendant's submissions. (Doc. 76). The court's order advised Ms. O'Hara of the importance and ramifications of Rule 56 summary judgment consideration, and directed her to file and serve affidavits and any other documents or materials authorized to be filed under Federal Rule of Civil Procedure 56 and Northern District of Florida Local Rule 56.1(A). (Doc. 76). Ms. O'Hara was also specifically instructed to file and serve a separate, short and concise statement of the material facts as to which she contended that there existed a genuine issue to be tried, and warned that all material facts set forth in the statement of facts filed by the defendant would be deemed to be admitted unless controverted by her statement of material facts. ( Id. at 3). Ms. O'Hara filed an opposition to a motion for summary judgment which, although not in the traditional form of an affidavit, was sworn under penalty of perjury. (Doc. 78). Despite the court's specific instruction, Ms. O'Hara did not submit a separate statement of facts. In lieu of this, she addressed the contents of the defense exhibits which provided the basis for its statement of facts, sequentially addressing statements made Mr. Cartwright's affidavit. (Doc. 78 at 9–16).

In her response, Ms. O'Hara contends that the defendant's reliance upon excerpts of her deposition is improper because such excerpts can be “taken out of context.” She asserts that the defendant should be required to tender a complete, unabridged, and certified copy. Ms. O'Hara has cited no authority for her assertion. Although Fed.R.Civ.P. 56(c) formerly provided that summary judgment was appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 56(c), effective December 1, 2007, the language of this rule was changed to omit specific reference to depositions, instead referring only generally to “the discovery and disclosure materials on file.” Thus, Ms. O'Hara's conclusion that a party must file entire depositions rather than excerpts of depositions is no longer supported even by a literal reading of the language of the rule. And, other courts that have considered the issue have found that the submission of deposition transcript excerpts, rather than entire depositions, in support of a motion for summary judgment is proper, because a party who believes that there is additional relevant information in the deposition transcripts that is not contained in the excerpts is free to file its own excerpts or the full transcripts in support of its response. See, e.g., Zhanjian Go–Harvest Aquatic Products Co., Ltd. v. Southeast Fish & Seafood Co., 2008 WL 516109 (S.D.Fla.2008); Sandova v. Wackenhut Correctional Corp., 21 F.3d 1109, 1994 WL 171703 (5th Cir.1994); Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir.2009) (finding that deposition excerpts are often preferred by the district court if they are properly authenticated); Dean v. Chrysler Corp., 38 F.3d 568, 1994 WL 574188 (5th Cir.1994). Ms. O'Hara has not submitted either the complete deposition or any additional excerpts.⁵

Moving to the question of the proper authentication of the deposition excerpts, Ms. O'Hara is correct that they are not authenticated. To authenticate a deposition excerpt, a party should include the cover sheet and the court reporter's certificate, neither of which was done in this case. See Alexander v. CareSource, 576 F.3d at 560 (citing cases). However, although Ms. O'Hara complains about the fact of the lack of authentication, she raises no challenge to the substantive accuracy of the excerpts provided, other than to claim that they can be taken “out...