Ryan v. Shulkin
| Decision Date | 08 December 2017 |
| Docket Number | CASE NO. 1:15-CV-02384 |
| Parties | ANNETTE RYAN, Plaintiff, v. DAVID J. SHULKIN, SECRETARY, UNITED STATES DEPARTMENT OF VETERAN AFFAIRS, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
OPINION AND ORDER
Plaintiff Annette Ryan ("Ryan") has filed this case against her former employer, David J. Shulkin, Secretary for the United States Department of Veteran Affairs (the "VA"), alleging claims of hostile work environment, gender and disability discrimination, and retaliation. This case is before the Court upon three motions: Defendant's Motion for Summary Judgment, Doc #: 55, Defendant's Objection to Plaintiff's Evidence in Support of her Opposition to Summary Judgment ("Defendant's Objection"), Doc #: 68, and Plaintiff's Objection to Defendant's Reply Brief in Support of its Motion for Summary Judgment ("Plaintiff's Objection"), Doc #: 71. For the following reasons, Defendant's Motion for Summary Judgment is DENIED in part and GRANTED in part. Defendant's Objection is OVERRULED and Plaintiff's Objection is OVERRULED.
On October 13, 2015, Ryan filed her Complaint in Cuyahoga County Court of Common Pleas, case number CV-15-852581, against then-Secretary of the United States Department of Veteran Affairs (the "VA"), Ryan McDonald. David Shulkin replaced McDonald as Secretary of the VA while this case was pending and has been substituted as the named defendant. On November 20, 2015, the VA filed Notice of Removal to this Court. Doc #: 1.
On August 21, 2017, the VA filed the instant Motion for Summary Judgment. Doc #: 55. Ryan filed an Opposition on October 12, 2017, Doc #: 60, and filed a Motion for Leave to File a Corrected Brief in Opposition on October 13, 2017, Doc #: 65. The Court granted Ryan's Motion for Leave and will consider only the corrected brief. On October 26, 2017, the VA replied to Ryan's Opposition, Doc #: 69, and also filed its Objection, Doc #: 68. Ryan filed a Response to the VA's Objection, Doc #: 70, and filed her own Objection, Doc #: 71, on November 6, 2017. The VA replied to Ryan's Response to the VA's Objection on November 13, 2017. Doc #: 72.
Federal Rule of Civil Procedure 56(c)(2) allows a party to object to the admissibility of evidence presented in support or opposition of a motion for summary judgment. The Committee Notes explain:
Subdivision (c)(2) provides that a party may object that material cited tosupport or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.
Fed. R. Civ. P. 56 advisory committee's note to 2010 amendments. The Court will consider each party's Objection in turn.
The VA objects to two types of evidence relied upon by Ryan on the grounds that they are inadmissible hearsay: (1) the EEO Affidavit of Mr. Douglas M. Jenison (the "Affidavit") and (2) a statement made by Mr. Desi Hale (the "Statement"). Thus, the Court must determine (1) whether the Affidavit and Statement are hearsay and (2) whether any exception to the rule against hearsay applies.
"Hearsay" means a statement that: "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." FED. R. EVID. 801. But hearsay does not include statements that are offered against an opposing party and (1) made by a person whom the party authorized to make a statement on the subject or (2) made by the party's employee on a matter within the scope of that relationship while it existed. FED. R. EVID. 801(D). Mr. Jenison's Affidavit was taken during the course of the VA's EEO investigation. Resp. 1; Doc #: 60-17. Mr. Jenison was an Registered Nurse on the same unit as Ryan. Def. Obj. 2. Mr. Hale's Statement was taken during an interview with VA police officer Eric Carlson. Resp. 1; Doc #: 60-17. At that time, he was a janitor at the VA. Id. "Employees who talk to investigators are either speaking on matterswithin the scope of their duties under Fed. R. Evid. 801(d)(2)(D) or are in effect 'authorized' to cooperate with investigators, so their statements fit Fed. R. Evid. 801(d)(2)(C)." Weinstein v. Siemens, 756 F. Supp. 2d 839, 852 (E.D. Mich. 2010) (quoting 30B Graham, Federal Practice & Procedure, § 7021). Thus, the Affidavit and Statement are admissible under Rule 801(d)(2) so the VA's Objection is OVERRULED.1
Ryan makes one objection: she objects to the VA presenting new evidence in its Reply in Support of its Motion for Summary Judgment. Pl.'s Obj. 1. She argues that this additional evidence violates Federal Rule of Civil Procedure 56 and asks the Court to disregard it. Id. "The purpose of Rule 56(c) is to afford the nonmoving party notice and a reasonable opportunity to respond to the moving party's summary judgment motion and supporting evidence."2 Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)). Rule 56(c) applies where the moving party submits new evidence in its reply. Seay v. Tennessee Valley Auth., 339 F.3d 454, 481 (6th Cir. 2003) ().
The Court should allow the nonmoving party an opportunity to file a sur-reply, particularly if the Court's decision relies on new evidentiary submissions. Seay, 339 F.3d at 481; see also Engineering & Mfg. Services, LLC v. Ashton, 387 Fed. Appx. 575, 583 (6th Cir. 2010). But this does not mean that parties can never present new evidence in their reply briefs. See The Charter Oak Fire Ins. Comp. v. SSR, Inc., No. 11-cv-118, 2015 WL 10890126, *6-7 (E.D. Ky. July 13, 2015). If Ryan wanted to address the VA's new evidence, the proper mechanism for doing so would be to move the Court for leave to file a sur-reply. She did not do so. The Court sees no reason why Ryan's decision not to move the Court to file a sur-reply requires the Court to disregard any evidence presented in the VA's Reply. Further, it appears from Ryan's brief that she only objects to additional evidence relating to her disability discrimination claim. The Court is denying summary judgment as to this claim. Thus, Ryan's Objection is OVERRULED.
Summary judgment will be granted 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 a judgment as a matter of law." FED. R. CIV. P. 56(a). On the other hand, if a reasonable jury could return a verdict for the nonmoving party, summary judgment for the moving party is inappropriate. Baynes v. Cleland, 799 F.3d 600, 606 (6th Cir. 2015). The movant bears the initial burden of showing that there is no material issue in dispute. Id. at 607 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is deemed material only if it might affect the outcome of the caseunder the governing substantive law. Id. (citing Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994), in turn citing Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986)). In reviewing a motion for summary judgment, the court must view the facts and any inferences reasonably drawn from them in the light most favorable to the nonmoving party. Id. (citing Kalamazoo Acquisitions, LLC v. Westfield Ins. Co., 395 F.3d 338, 342 (6th Cir. 2005)).
From November 2011 through November 2014, Ryan was employed by the VA as a Licensed Practical Nurse ("LPN") on its Long Term Spinal Cord Unit ("LTSCU"). Am. Compl. ¶¶ 1, 3, 12, 13, Doc #: 5. Her immediate supervisor was Ms. Lisa Herman. Ryan Dep. 22. Ms. Elizabeth Noelker supervised Herman. Ryan Dep. 22-23. Ryan began working with nursing assistant MD Garrett immediately after starting with the VA in November 2011. Ryan Dep. 30. Garrett first began making sexually-charged comments to Ryan in early 2012. Ryan Dep. 38. By early Summer 2012, Garrett's behavior had progressed to both comments and inappropriate touching. Ryan Dep. 38-39. Garrett subjected Ryan to inappropriate touching and comments that were sexual in nature at least 2-3 times a week over a period of six months. ORM Compl. 2.
Garrett engaged in inappropriate conduct in front of Herman on several occasions. Ryan Dep. 48. On one occasion when a charge nurse was giving assignments out, Garrett made lip-smacking noises as the charge nurse was pulling her shirt to expose her bra. Ryan Dep. 49. Herman walked in and told both Garrett and the charge nurse that their behavior was inappropriate. Id. Another time, Ryan was sitting at a computer at the nurse's station near Herman when Garrett sat next to Ryan and began rubbing her legs. Ryan Dep. 50. Herman told Garrett to stop and he did. Id. Garrett would repeatedly make sexual jokes in front of Hermanand she would tell him to stop. Ryan Dep. 50. On more than one occasion, Ryan protested Garrett's behavior in front of Herman. Ryan Dep. 51. Herman was also present during staff meetings where Ryan would tell Garrett to stop touching her inappropriately. Ryan Dep. 103. Each time Herman would ask Garrett to stop. Id.
For approximately six months prior to Ryan reporting Garrett to the VA Union, Garrett's conduct continued to escalate to a level that Ryan described as "the next level of [physical] assault." Ryan ...
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