Opinion
Case No. 3:19-CV-02627-JGC
05-05-2022
Victoria FRANCIS, Plaintiff v. PROMEDICA HEALTH SYSTEM, INC., et al., Defendants.
Daniel I. Bryant, Bryant Legal, LLC, Columbus, OH, Matthew B. Bryant, Toledo, OH, for Plaintiff. Meghan Anderson Roth, Shawn A. Nelson, Marshall & Melhorn, Toledo, OH, for Defendants.
Daniel I. Bryant, Bryant Legal, LLC, Columbus, OH, Matthew B. Bryant, Toledo, OH, for Plaintiff.
Meghan Anderson Roth, Shawn A. Nelson, Marshall & Melhorn, Toledo, OH, for Defendants.
ORDER
James G. Carr, Senior United States District Judge This is an employment discrimination case. Plaintiff, Victoria Francis, brings claims for discrimination and retaliation under Title VII and analogous provisions of Ohio law against her former employer, ProMedica Health System, Inc. and its affiliates (collectively, ProMedica). She alleges that ProMedica discriminated against her because she is Russian and speaks with a Russian accent. She further alleges that ProMedica retaliated against her when it declined to renew her contract after she complained of discrimination.
Pending is plaintiff's Motion to Strike the Affidavit of Michelle Morris (Doc. 51). For the reasons discussed below, I deny plaintiff's motion.
Background
Plaintiff worked for ProMedica as an Acute Care Nurse Practitioner in the Wound Care division. (Doc. 51, pgID 1891). Michelle Morris was the Manager of Wound Care. (Id. ).
Defendants submitted an affidavit from Michelle Morris in support of their motion for summary judgment. (Doc. 38-3). In the affidavit, Ms. Morris details her knowledge of performance issues that plaintiff allegedly had while working in Wound Care. Ms. Morris alleges that plaintiff had communication, collaboration, and teamwork issues with other staff members. She also claims that those issues ultimately led to ProMedica's decision to not renew plaintiff's contract in Wound Care.
Plaintiff asks me to strike this affidavit. She cites to Federal Rule of Civil Procedure 12(f) and Rule 56(c)(2) in support of this request.
Standard of Review
Federal Rule of Civil Procedure 12(f) provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). In striking a pleading, a court may act on its own or upon motion of a party either before the party responds to the pleading or within 21 days of being served with the pleading. Id.
Federal Rule of Civil Procedure 56(c)(2) provides that "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). In other words, evidence that is not admissible in any form cannot support a motion for summary judgment, and thus, may be stricken. See Watters v. Summit Cty., Ohio , No. 5:14CV2390, 2016 WL 3544752, at *2 (N.D. Ohio) (Limbert, M.J.).
Under Rule 56(c)(4), "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).
In considering a motion to strike under Rule 56, a court should "use a scalpel, not a butcher knife" and strike only those portions of the affidavit that are inadmissible. Giles v. Univ. of Toledo , 241 F.R.D. 466, 469 (N.D. Ohio 2007) (Zouhary, J.).
Discussion
1. Plaintiff's Motion to Strike Ms. Morris’ Affidavit
Plaintiff asks me to strike Ms. Morris’ summary judgment affidavit because it conflicts with her deposition testimony and affidavit submitted to the EEOC. Her primary argument relates to the difference between the words communication and collaboration. According to plaintiff, Ms. Morris stated in her deposition and to the EEOC that ProMedica did not renew plaintiff's contract because of communication issues. However, in the affidavit she submitted in support of summary judgment, Ms. Morris referred to those issues as collaboration issues.
Plaintiff also asks me to strike Ms. Morris’ summary judgment affidavit because it contains more information than her EEOC affidavit and allegedly contradicts other specific portions of her prior testimony.
A. Application of Rule 12(f)
As an initial matter, plaintiff cannot obtain relief under Federal Rule of Civil Procedure 12(f). Defendants correctly point out that this rule applies only to pleadings. The affidavit plaintiff asks me to strike here is not a pleading. Defendants submitted it as an exhibit to their summary judgment motion. As the Sixth Circuit has explained, "[e]xhibits attached to a dispositive motion are not ‘pleadings’ within the meaning of Fed.R.Civ.P. 7(a) and are therefore not subject to a motion to strike under Rule 12(f)." Fox v. Michigan State Police Dep't , 173 F. App'x 372, 375 (6th Cir. 2006).
B. Application of Rule 56
Rule 56 is instead the appropriate avenue for seeking to strike an affidavit filed in support of summary judgment. See Upshaw v. Ford Motor Co. , 576 F.3d 576, 593 (6th Cir. 2009) (noting that a court should strike portions of summary judgment affidavits that do not satisfy the requirements of Rule 56 ).
i. Communication vs. Collaboration
Plaintiff focuses most of her briefing on the difference between the terms communication and collaboration. She claims that Ms. Morris replaced her references to communication issues with references to collaboration issues. The reason for this change would presumably be to eliminate any suggestion that plaintiff's Russian accent played a role in ProMedica's decision to not renew her employment contract.
Plaintiff argues that communication and collaboration do not mean the same thing, and therefore, Ms. Morris’ testimony is contradictory. It is for that reason that she asks me to strike Ms. Morris’ summary judgment affidavit.
Defendants respond that communication and collaboration mean the same thing, and Ms. Morris used them interchangeably. They contend that when Ms. Morris said plaintiff had communication issues, what she meant was that plaintiff had difficulty working in a team. Because this testimony is not directly contradictory, defendants argue that I should not strike Ms. Morris’ summary judgment affidavit.
In deciding whether to admit a post-deposition affidavit for summary judgment purposes, a district court should first "determine whether the affidavit directly contradicts the nonmoving party's prior sworn testimony." Aerel, S.R.L. v. PCC Airfoils, L.L.C. , 448 F.3d 899, 908 (6th Cir. 2006). "A directly contradictory affidavit should be stricken unless the party opposing summary judgment provides a persuasive justification for the contradiction." Id. But if there is no direct contradiction, "the district court should not strike or disregard that affidavit unless the court determines that the affidavit constitutes an attempt to create a sham fact issue." Id.
The Sixth Circuit narrowly defines the term "direct contradiction." Briggs v. Potter , 463 F.3d 507, 513 (6th Cir. 2006). Statements are not directly contradictory if they can be simultaneously true. S.L. by & through K.L. v. Pierce Twp. Bd. of Trustees , No. 1:07-CV-986, 2011 WL 13242965, at *4 (S.D. Ohio) ; see also https://www.merriam-webster.com/dictionary/contradictory ("a proposition ... so related to another that if either of the two is true the other is false and if either is false the other must be true").
Further, a party attempts to create a sham fact issue where it submits an affidavit for the sole purpose of creating a genuine issue of material fact to avoid summary judgment. See Giles , supra , 241 F.R.D. at 472. The purpose of the prohibition against sham affidavits is to prevent a party from abusing the summary judgment process. That is, " ‘[i]f a party who has been examined at length [under oath] could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.’ " France v. Lucas , 836 F.3d 612, 622 (6th Cir. 2016) (quoting Perma Research & Dev. Co. v. Singer Co. , 410 F.2d 572, 578 (2d Cir. 1969) ).
The sham affidavit doctrine applies to nonmoving parties who attempt to defeat summary judgment by filing a contradictory affidavit. Reed v. City of Memphis, Tennessee , 735 F. App'x 192, 198 (6th Cir. 2018). It does not apply where "the moving party files an allegedly contradictory affidavit with his or her motion for summary judgment." Id. (emphasis in original).
a) Ms. Morris’ Affidavit Is Not Directly Contradictory
Turning to the first question of whether Ms. Morris’ summary judgment affidavit directly contradicts either her EEOC affidavit or deposition testimony because it uses the term collaboration rather than communication, I find that it does not.
I agree with plaintiff that the words communication and collaboration are not interchangeable on their face. But that does not mean that they are directly contradictory. Further, I cannot examine the words in a vacuum but must examine them in the context of the testimony in this case.
The testimony at issue relates to ProMedica's reason for declining to renew plaintiff's employment contract. According to plaintiff, Ms. Morris initially testified that the reason was plaintiff's communication issues. But in her summary judgment affidavit, Ms. Morris stated that the reason was plaintiff's collaboration issues.
That is not, however, a complete picture of Ms. Morris’ testimony. In her deposition, Ms. Morris testified that plaintiff had both communication and collaboration issues. She recounted complaints from staff members about what she referred to as plaintiff's communication issues, including plaintiff's failure to direct nurses regarding patient care. (Doc. 34-2, pgID 641-43). She also referenced collaboration and teamwork issues, noting that some staff members found plaintiff "demanding and disrespectful." (Id. , pgID 623-24, 639).
Ms. Morris used the term collaboration frequently throughout her deposition. Contrary to plaintiff's suggestion, it was not a new term that arose in Ms. Morris’ summary judgment affidavit.
Further, Ms. Morris appears to have used the terms communication and collaboration somewhat interchangeably to describe plaintiff's performance issues. There is a specific portion of her deposition that illustrates this well. After Ms. Morris testified that plaintiff had communication issues, plaintiff's counsel asked her to expound upon those issues. Ms. Morris responded:
Um, that being a part of the team and having conversations and, and engaging, um, yeah, it's, it's hard to step into a new team, um, but having conversations, um, I know the vascular affiliates were making hard, but making things difficult from her perspective, but reaching out to ongoing collaboration with Dr. Simman and Abbas to tread that way or the other APPs from the vascular team, um, that's always the encouragement, collaborate with your peers, collaborate with your physicians.
(Id. , pgID 604).
Ms. Morris continued, "There seemed to be collaboration obstacles ... as we were trying to work them out. So the key communication is ... ongoing with the vascular affiliates because they then follow up with those providers on the care of the vascular patients. And if that was not occurring then there's breakdown." (Id. , pgID 604-05).
To summarize this testimony, when plaintiff's counsel asked Ms. Morris to describe plaintiff's communication issues, she responded by emphasizing the importance of teamwork and collaboration. And in describing plaintiff's "collaboration obstacles," Ms. Morris used the term communication.
It is evident, then, that Ms. Morris saw these terms as interrelated and perhaps even interchangeable.
Therefore, I am not convinced that Ms. Morris’ summary judgment affidavit directly contradicts her prior testimony. In fact, they seem relatively consistent to me.
It is worth noting that in several places, defendants replaced the word communication in Ms. Morris’ EEOC affidavit with the word collaboration in her summary judgment affidavit. In those instances, defendants kept the rest of the text either substantially or exactly the same. Regardless of their reasons for doing so, it does not change the outcome of this motion. As I explain above, Ms. Morris did not use the terms communication and collaboration in a directly contradictory way. Further, while her EEOC affidavit does not contain the word "collaboration," Ms. Morris does detail plaintiff's difficulties working on a team in that affidavit. (Doc. 51-2, pgID 1923) (claiming that plaintiff was "rude and disrespectful," and her supervisors provided feedback on how to work appropriately on a team). Therefore, it is not inconsistent with her summary judgment affidavit because both describe collaboration issues.
The terms communication and collaboration are not directly contradictory on their face, Ms. Morris described plaintiff's alleged collaboration issues in her deposition before she submitted her summary judgment affidavit, and her deposition suggests that she conflated the two words when discussing plaintiff's performance problems.
For those reasons, I find that her summary judgment affidavit is not directly contradictory.
b) The Sham Affidavit Doctrine Does Not Apply
I must next consider the question of whether Ms. Morris’ summary judgment affidavit is a sham affidavit. If it is, I should grant plaintiff's motion to strike. If it is not, I should deny the motion.
I agree with defendants that the sham affidavit doctrine does not apply here. The Sixth Circuit has held that it only applies to a nonmoving party who submits an affidavit in an attempt to create an issue of fact and avoid summary judgment. Reed , supra , 735 F. App'x at 198. It does not apply "where the moving party files an allegedly contradictory affidavit with his or her motion for summary judgment." Id. (emphasis in original).
Here, defendants filed Ms. Morris’ affidavit in support of their own motion for summary judgment. They are the "moving party" for purposes of the rule laid out in Reed .
There is a logical explanation for this rule. It "reflect[s] the importance of distinguishing legitimate efforts to supplement the summary judgment record from attempts to create a sham issue of material fact that would defeat summary judgment." Id. There is little reason for a party moving for summary judgment to attempt to undermine its own motion. Id.
That logic applies here. Defendants have no incentive to file an affidavit with their motion for summary judgment that undermines the relief they are seeking in that very motion.
I therefore see no reason, and plaintiff provides none, why the Reed rule should not apply here. Accordingly, I deny plaintiff's motion to strike insofar as it relates to the distinction between communication and collaboration.
Plaintiff also objects generally that Ms. Morris’ affidavit adds 21 paragraphs of additional facts. But that alone is not a reason to strike it. And it does not prove that the affidavit is a sham, as plaintiff argues. Rather, courts routinely admit later-sworn affidavits that "supplement potentially ambiguous or incomplete testimony or address an issue that was not thoroughly or clearly explored in deposition." Gard v. Grand River Rubber & Plastics Co. , No. 1:20CV125, 2021 WL 6000039, at *8 (N.D. Ohio) (Barker, J.).
ii. Other Alleged Inconsistencies
Plaintiff highlights several other portions of Ms. Morris’ affidavit that she believes are inconsistent with Ms. Morris’ prior testimony.
a) Ms. Morris’ Involvement in the Investigation
First, plaintiff argues that Ms. Morris’ testimony regarding the investigation she undertook into plaintiff's complaint about alleged discriminatory remarks is inconsistent between her summary judgment affidavit and her deposition. Plaintiff claims that in her deposition, Ms. Morris testified that she had no knowledge of ProMedica's investigation into plaintiff's complaint. However, in her summary judgment affidavit, she states that she "took the lead" on the investigation.
But this summary of the testimony does not provide the full context. Ms. Morris never testified that she had no knowledge of the investigation into plaintiff's complaint. She simply testified that once she escalated the complaint to her supervisor, she was no longer involved. (Doc. 34-2, pgID 513). But before she escalated the complaint, Ms. Morris testified that she had a discussion with plaintiff about the complaint, spoke with the nurse who allegedly made the discriminatory comment (Ms. Hoover), followed up with Ms. Hoover's manager and peers, and had a meeting with both plaintiff and Ms. Hoover. (Id. , pgID 594-600). This certainly qualifies as an investigation, and both Ms. Morris and plaintiff's counsel referred to it as such during the deposition. (Id. ).
While Ms. Morris claims that she "took the lead" on the investigation in her summary judgment affidavit, she follows that comment with a description of her conversations with Ms. Hoover and the other staff members she interviewed. (Doc. 38-3, pgID 1573). Thus, it appears to me that Ms. Morris is simply stating she "took the lead" as to the phase of the investigation that involved her conversations about Ms. Hoover.
This does not contradict her deposition testimony.
b) Dr. Gale's Review of Plaintiff
Second, plaintiff argues that Ms. Morris testified inconsistently about Dr. Gale's review of plaintiff's performance. Plaintiff claims that in her deposition, Ms. Morris testified that she did not know anything about Dr. Gale's review. However, in her summary judgment affidavit, Ms. Morris asserts that Dr. Gale reported issues with plaintiff's performance.
Further context is required here as well. During the deposition, plaintiff's counsel asked Ms. Morris about a specific document called a "Sponsoring Collaborative Physician review." (Doc. 34-2, pgID 680-81). Ms. Morris testified that she did not know whether Dr. Gale performed that review and likewise did not know whether he performed a written review of plaintiff in general. (Id. ). In her summary judgment affidavit, Ms. Morris states that Dr. Gale "reported back that [plaintiff] refused to give him any clinical opinions." (Doc. 38-3, pgID 1576).
But this is not contradictory. Ms. Morris did not even reference the "Sponsoring Collaborative Physician review" in her summary judgment affidavit. Further, while she stated in her deposition that she did not know whether Dr. Gale performed a written review, she did not say anything about an oral review. And defendants contend that Dr. Gale's review was oral.
Therefore, I find there is no contradiction in Ms. Morris’ testimony regarding Dr. Gale's report.
c) Plaintiff's Move to Outpatient
Third, plaintiff argues that Ms. Morris testified inconsistently about ProMedica's decision to move plaintiff to outpatient care before deciding to not renew her contract. It is not entirely clear which testimony plaintiff believes is contradictory. Plaintiff references a statement in Ms. Morris’ EEOC affidavit, a statement in her summary judgment affidavit, a statement from her deposition, and statements from plaintiff's deposition.
The statements from plaintiff's deposition are irrelevant to the issue of whether Ms. Morris’ testimony is inconsistent. Therefore, I will not consider them.
As far as Ms. Morris’ testimony, I do not see any inconsistencies in the portions that plaintiff highlights. Plaintiff first points to a part of Ms. Morris’ EEOC affidavit in which she stated that ProMedica moved Ms. Hoover to another team while it investigated the alleged discriminatory conduct against plaintiff. Plaintiff fails to explain how this relates to her own transfer to another team, and I cannot see how it does.
Plaintiff then identifies a statement from Ms. Morris’ summary judgment affidavit that plaintiff agreed to a transfer to an outpatient clinic. But plaintiff does not identify any earlier, contradictory testimony from Ms. Morris stating that plaintiff opposed this transfer. Plaintiff points only to deposition testimony about her not wanting ProMedica to terminate her contract. This testimony is not contradictory because it does not relate to the same issue.
Therefore, I find there is no contradiction in Ms. Morris’ testimony regarding plaintiff's transfer to an outpatient clinic.
d) The Chart Audit
Fourth, plaintiff asserts that Ms. Morris testified inconsistently about a "chart audit" related to plaintiff's job performance. It is again unclear which portions of Ms. Morris’ testimony plaintiff references in support of this argument.
Ms. Morris testified in her deposition that several of plaintiff's supervisors did a "chart audit" of plaintiff's "therapy and care." (Doc. 34-2, pgID 659). But plaintiff does not identify, and I cannot find, any reference to that "chart audit" in Ms. Morris’ summary judgment affidavit. Therefore, I find there is no contradiction in Ms. Morris’ testimony regarding the chart audit of plaintiff.
2. Defendants’ Motion to Strike Affidavit of Deborah Gladieux
Defendants filed a separate motion to strike one of plaintiff's affidavits, primarily on the grounds that the affiant, Deborah Gladieux, did not base her statements on personal knowledge. (Doc. 41).
I held a hearing on February 16, 2022, in which I heard argument on that motion and outlined my rulings. Plaintiff's and defendants’ counsel agreed that they understood my oral rulings and did not need a written order on the motion.
I therefore grant defendants’ motion to the extent outlined in the transcript of that proceeding.
Conclusion
For the foregoing reasons, it is ORDERED that:
1. Plaintiff's Motion to Strike the Affidavit of Michelle Morris (Doc. 51) be, and the same hereby is, denied; and
2. Defendants’ Motion to Strike the Affidavit of Deborah Gladieux (Doc. 41) be, and the same hereby is, granted to the extent outlined in the February 16, 2022 hearing transcript.
This ruling does not limit plaintiff's ability to cross-examine Ms. Morris in the event of a trial.
So ordered.