Rodgers v. Gary Community School Corp.Rodgers v. Gary Community School Corp.
OPINION AND ORDER
This matter is before the Court on the: (1) “Motion for Summary Judgment,” filed by Defendant, Gary Community School Corporation, on July 30, 2015 [DE 29]; and (2) “Objection and Motion to Strike Plaintiff S.J. Exhibit A & Plaintiffs S.J. Exhibit B,” filed by Defendant, Gary Community School Corporation, on September 16, 2015 [DE 37], For the reasons set forth below, the Motion for Summary Judgment [DE 29] is GRANTED IN PART AND DENIED IN PART. The Motion for Summary Judgment is GRANTED as to Counts II and III and the Clerk is ORDERED to DISMISS WITH PREJUDICE Counts II and III of Plaintiffs complaint. The Motion for Summary Judgment is DENIED as to the reasonable accommodation claim under the ADA in Count I, which remains pending. The Objection and Motion to Strike [DE 37] is DENIED.
Background
Plaintiff, Latanya Rodgers, has been employed as a custodian by Defendant, the Gary Community School Corporation
Undisputed Facts
Rodgers is a custodian with GCSC [Rodgers Dep. at 102]. Her duties include cleaning her assigned area and securing it [Id. at 103]. Normally her work schedule is between either 2:30 p.m. to 10:30 p.m. or 2:00 p.m. to 10:00 p.m. [Id. at 104], Her supervisor is Mr. Kenneth Smith, manager over operations [Id. at 105].
On September 16, 2011, Rodgers was sexually assaulted by a co-worker while she was cleaning a restroom at the school [Comp. ¶ 1]. After the incident, Rodgers began to suffer panic attacks [Rodgers Dep. at 23]. The employee responsible for the attack was fired by GCSC based upon the incident [Id.]. Rodgers was sued by the co-worker in small claims court, she counter sued, and received a judgment against him [Id. at 31].
Rodgers filed a workers’ compensation claim and received approximately $17,000 for the claim [Rodgers Dep. at 101]. On February 22, 2012 (prior to her returning to work), Plaintiffs workers’ compensation mental health treatment provider, Mary Mirro, drafted a letter [DE 32-1]. The letter states that “Ms. Rodgers has been experiencing Post Traumatic Stress Symptoms since the incident.” [Id] The mental health treatment provider made several recommendations: (1) there will always be proper lighting in the parking lot and around the school building and dumpster area; (2) Rodgers or any custodial staff member should never be left alone in the school building; (3) the custodial staff should work together as a team, for example, walk each other out to the parking lot at the end of the shift; and (4) no person should take the garbage out by themselves [DE 32-1]. According to Rodgers, her doctor wrote out the requested accommodations, and “submitted those to, you know, my building people.” [Rodgers Dep. at 79.] Rodgers testified during her deposition that no one from GCSC ever sat down with her and discussed the recommendations of Mirro dated February 20, 2012 [Id. at 174-75],
Dr. Michael Kovacich issued Rodgers a doctor’s note stating she “has been under my care and has been released as of April 16, 2012.” [DE 30-5.] She felt forced to return to work after Rodgers received a phone call from Defendant’s administrative personnel advising her that her benefits would be terminated if she did not return to work [Rodgers Dep. at 51-52]. On April 16, 2012, Rodgers returned to work and has been working full-time as a custodian until the present [Id. at 53].
On May 7, 2012, Rodgers’ workers’ compensation treatment provider drafted a second, more detailed letter to GCSC saying Rodgers was referred to her by Lynn Karfomenos, a medical case manager, nurse life care planner, and legal nurse consultant, and Mirro “concurred with the diagnosis that was made from the EAP counseling service, Post Traumatic Stress Disorder (PTSD).” [DE 32-2.] Mirro also stated in the letter that on January 20, 2012, Rodgers presented as being “anxious, withdrawn and fearful.” [Id.] Mirro saw Rodgers twice during the week of
Rodgers testified during her deposition that GCSC did not consistently accomplish Mirro’s requested accommodations. Specifically, she said about the school parking lot that “they finally got some of the lights to work. They worked for a moment, but then they went out.” [Rodgers Dep. at 176.] Ultimately, Rodgers said there was not a resolution to the lighting issue [Id. at 177]. Rodgers also testified that the teamwork approach was never really implemented, and there was no additional training for the custodial staff [Id. at 178-79]. After she returned to work, Rodgers was put in a position where she was expected to take the garbage out by herself [Id. at 179].
Rodgers gave deposition testimony that after the assault on September 11, 2011, she was diagnosed by a GCSC doctor with high blood pressure, anxiety, panic attacks, syncopal stress, and post-traumatic stress disorder, which she claims affect her daily life [Rodgers Dep. at 87-99, 157-59, 166-67]. She claims her conditions often prevent her from being able to think clearly, to concentrate, they disrupt her sleep, and have affected her ability to interact and communicate normally with other people [Id. at 7, 163-64, 166-67]. Rodgers testified that she suffered an episode of stress-related syncope and high blood pressure shortly after she returned to work, and the episode resulted in Rodgers being transported to the hospital [Id. at 68-69, 184-85]. Rodgers was seen and treated in the emergency department on April 25, 2012, and was released with the direction that “she may return to work in 3 days.” [DE 30-3.]
Rodgers filed a charge of discrimination with the Gary Human Relations Commission and the Equal Employment Opportunity Commission (“EEOC”) dated May 23, 2012 [DE 30-1]. She received a right to sue notice from the EEOC on September 24, 2014 [Compl. ¶ 2], The complaint also alleges that Rodgers was “denied a promotion or hiring to which she would have been entitled.” [Id. ¶ 18.]
Discussion
Summary judgment must- be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
A party opposing a properly supported summary judgment motion may not rely on allegations or denials in her own pleading, but rather must “marshal and present
I. Motion to Strike
Preliminarily, the Court must address GCSC’s objection and motion to strike Plaintiffs Summary Judgment Exhibit A (a letter from Mary Mirro, Plaintiffs workers’ compensation mental health treatment provider, dated February 22, 2012), and Plaintiffs Summary Judgment Exhibit B (a letter from Mary Mirro dated May 7, 2012). GCSC argues the exhibits must be excluded because Rodgers should have disclosed the identity of an expert and an expert report, and because they are unauthenticated, contain hearsay, and have inconsistent and confusing dates.
Exhibit A is a letter from Mary Mirro that is dated February 22, 2012, and yet confusingly refers to “the incident” at school occurring “last September 2012.” [DE 32-1], Plaintiff responds that Rodgers testified about this document during her deposition with enough specificity to render it admissible, and that the reference to the incident occurring in September 2012 “is clearly a typographical error by the author of the document.” [DE 41 at 3-4.] Additionally, Plaintiff contends that “[tissues concerning relevancy of exhibits, expert witness status, hearsay contained within exhibits, and lack of proper foundation could easily have been discussed and resolved by the parties even during the course of the deposition itself,” and argues that because Defendant failed to raise these issues then, it has waived its right to now object. [Id. at 8.]
Exhibit B is another letter from Mary Mirro that is dated May 7, 2012, but oddly not signed by Mirro until September 10, 2012 [DE 32-2], Plaintiff urges that the “inconsistency has nothing to do with relevance whatsoever.” [DE 41 at 4.]
With regard to a motion for summary judgment, “[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) (emphasis added). “In other words, the Court must determine whether the material can be presented in a form that would be admissible at trial, not whether the material is admissible in its present form.” Stevens v. Interactive Fin. Advisors, Inc., No. 11 C 2223,
Regarding authentication, the Federal Rules of Evidence provide that “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). Proper authentication methods include, inter alia, testimony of a witness with knowledge. Fed. R. Evid. 901(b)(1). “Rule 901 requires only a prima facie showing of genuineness and leaves it to the jury to decide the true authenticity and probative value of the evidence.” United States v. Harvey,
GCSC also objects to these two exhibits because Plaintiff has not disclosed any expert opinions or submitted any expert reports. “[A] party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). However, only those retained or specially employed to provide expert testimony must submit an expert report complying with Rule 26(a)(2)(B). Fed. R. Civ. P 26(a)(2)(B). Rodgers contends Mirro is a treating physician and the exhibits merely contain her conclusions and recommendations. [DE 41 at 6-7.] In this case, it seems that Mirro was not retained or employed to provide expert testimony—she was the workers’ compensation therapy provider. See Zurba v. United States,
The Court notes that if Plaintiff intends to use either Mirro or the EAP counselor as an expert in her case at trial, Plaintiff should have disclosed those individuals. See Fed. R. Civ. P. 26(a)(2)(C) (requiring a witness who is expected to present evidence under Federal Rule of Evidence 702, 703, or 705, who does not provide a written report, to still disclose the subject matter on which the witness is expected to present evidence and a summary of the facts and opinions to which the witness is expected to testify). Plaintiff is reminded about the duty of this disclosure and that at trial, Plaintiff will have to qualify individuals as experts and satisfy the elements of Rule 702 admissibility by laying a foundation for such opinions.
Motions to strike are heavily disfavored, and usually only granted in circumstances where the contested evidence causes prejudice to the moving party. Kuntzman v. Wal-Mart,
II. Motion for Summary Judgment
GCSC first argues that Rodgers failed to exhaust her administrative remedies [DE 30 at 5]. To bring a claim under the ADA, a plaintiff must first file a charge alleging the unlawful employment practice with the EEOC and receive notice of a
However, an ADA plaintiff may bring a claim not included in the EEOC charge “if there is a reasonable relationship between the allegations in the charge and the claims in the complaint, and the claims in the complaint can reasonably be expected to grow out of an EEOC investigation of the allegations in the charge.” Cheek,
Rodgers alleges in the EEOC charge that she was sexually assaulted at work on September 16, 2011, she was harassed and denied terms and conditions of employment by GCSC, she was forced to return to work, she was denied “reasonable accommodations,” and she was denied a position that she believed she was entitled to based upon seniority. [DE 30-1.] In this case, the complaint and the EEOC charge are both based upon a single precipitating incident (the sexual assault at work), and they both involve the same conduct, same individuals, and decisions by the same people. The claims Rodgers lists in the charge for discrimination are reasonably related to the charges in the complaint. Thus, she is not procedurally barred from bringing her claims.
1. ADA Claim
Count I of the complaint alleges that “GCSC has failed to consistently provide [ ] reasonable accommodations” in violation of the ADA. [DE 30-2 at 4.] The ADA prohibits employers from discriminating against their employees “on the basis of disability.” 42 U.S.C. § 12112(a); see also Silk v. Bd. of Trustees, Moraine Valley Cmty. Coll., Dist. No. 524,
One is “disabled” under the ADA if she has a physical or mental impairment that substantially limits one or more major life
According to the recent Code of Federal Regulations (“C.F.R.”), the term substantially limits “is not meant to be a demanding standard” and determining “whether an impairment ‘substantially limits’ a major life activity should not demand extensive analysis.” 29 C.F.R. § 1630.2(j)(l)(i) and (iii). The regulations further provide that the “term ‘substantially limits’ shall be construed broadly and in favor of expansive coverage!.]” 29 C.F.R. § 1630.2(j)(l)(i). In arguing that she fits the statutory definition of “disabled,” Rodgers contends that her condition of post-traumatic stress disorder substantially limits the following major life activities: sleeping, thinking, concentrating, interacting with people, and communicating. [DE 31 at 13.]
Although neither party brought this regulation to the Court’s attention, there is a recent regulation that lists post-traumatic stress disorder as an impairment that will “virtually always be found to impose a substantial limitation on a major life activity.” 29 C.F.R. § 1630.2(j)(3)(ii). Indeed, the regulation expressly states that “it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated:... post-traumatic stress disorder... substantially limit[s] brain function.” 29 C.F.R. § 1630.2(j)(3)(iii). Keeping in mind this regulation and the ADA amendments which were enacted to ensure broad coverage, the Court turns to analyzing whether Rodgers’ post-traumatic stress syndrome substantially limits a major life activity.
In her statement of additional undisputed facts, Rodgers states her “conditions often prevent her from being able to think clearly or concentrate, disrupt her sleep, and have affected her ability to interact and communicate normally with other people” and then cites to specific pages and lines in her deposition. [DE 31 at 5.] The Court has carefully reviewed these portions of Rodgers’ deposition cited in support of her claim that she is substantially limited in a major life activity and recites below the pertinent excerpts:
—Rodgers testified that her medication makes it “hard to kind of think.” [Rodgers Dep. at 7.]
—Rodgers testified that “it’s hard to concentrate from going through all this paperwork and trying to keep up with everything — when I get a lot of paperwork, I get sick. I don’t want to go through it. It’s hard to go through... everything’s got to be written down now. It’s like I can’t even put that in my memory... .And then if something throws me off, I walk in circles. It takes me a moment to regroup.... I think I got a little meaner.” [Id. at 166-67.]
—Rodgers testified that “the damages that I incurred through this was fear, my relationship with my husband changed, the intimidations that I used to have with being around a man, and since [ ] grabbed me from behind, I’m not good with people standing behind me no more. My health condition has changed. I never had anxieties and all that stressissue. No. I never had those kinds of— where I get those tensions and stuff in my neck and my body. I never had that — go through that since the incident happened. It’s messed with my character. When I work with my peers, they don’t — they don’t interact with me anymore.” [Id. at 163-64.]
—As an example of Rodgers “difficulty organizing and communicating her thoughts” [DE 31 at 5], Plaintiff cites the following portion of the deposition in response to the question “when was George Neal your supervisor?” Rodgers answered: “Now, I don’t want to give you — I don’t know what date that he— because we lost Mr. Neal — he’s no longer with us, and Mr. Neal — okay—I got assaulted — so I’m thinking — now this is just a random thinking because I can’t really give you a specific date of his — it changing over from — Mr. Smith kind of took over — -I’m thinking that Mr. Smith took over in 2010 — 2010—10 or 11 — no. I know he was here in 11, so it had to be 2009 or 2010 — in one of those, I think, Mr. Smith took over.” [Id. at 21-22.]
In addition to Rodgers’ deposition testimony, on February 22, 2012, her workers’ compensation treatment provider, Mirro, stated that “Ms. Rodgers has been experiencing Post Traumatic Stress Symptoms since the incident.” [DE 32-1.] Finally, in a letter dated May 7, 2012, Mirro stated she “concurred with the diagnosis that was made from the EAP counseling service, Post Traumatic Stress Disorder (PTSD).” [DE 32-2.]
Viewing the facts relevant to Rodgers’ condition in the light most favorable to her, and assessing those facts under the new, less stringent analysis called for by the ADA amendments, there is sufficient evidence to permit a reasonable jury to find that Rodgers has a disability under the ADA. This conclusion is supported by the regulation providing post-traumatic stress disorder should virtually always be found to impose a substantial limitation on a major life activity, the Mirro letters, Rodgers’ deposition testimony, as well as the fact that “[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.” 29 C.F.R. § 1630.2(j)(l)(iii).
Rodgers must also establish that she is a “qualified individual” under the ADA, which is defined as an individual with a disability “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). GCSC largely argues that Rodgers was not a qualified individual with a disability because “she is capable of performing, and does perform, her job as a janitor.” [DE 30 at 12.] This argument, while directed more towards whether Rodgers is disabled, basically concedes that Rodgers can perform the essential functions of her position, with or without a reasonable accommodation.
The ADA requires an employer to engage in an interactive process with a qualified individual to determine whether a reasonable accommodation will allow her to work. Beck v. University of Wisconsin Bd. Of Regents,
Similarly, there is also a genuine dispute as to whether GCSC was involved in an interactive process with Rodgers, and whether it provided Rodgers with reasonable accommodations. The federal regulations implementing the ADA state: “[t]o determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with ' the individual with a disability in need of the accommodation.” 29 C.F.R. § 1630.2(o)(3). Yet, this is a two-way street, and the regulations state the “appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.F.R. pt. 1630, app. As the Seventh Circuit described in Beck, “[n]o hard and fast rule will suffice because neither party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts' to help the other party determine what specific accommodations are necessary.” Beck,
2. Title VII Claim
Rodgers also claims that GCSC violated Title VII’s anti-retaliation provisions. Title VII provides that an employer may not “discharge any individual. . .because of such individual’s race, col- or, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). To prevail on a Title VII retaliation claim, Rodgers must prove that: (1) she engaged in activity protected under Title VII; (2) she suffered an adverse employment action; and (3) there is a causal nexus between her protected action and the adverse employment action. Smart v. Ball State Univ.,
Rodgers clearly satisfies the first element because filing an EEOC complaint is protected activity. She does not, however, satisfy the second step that she has suffered an adverse employment action. To the extent Rodgers contends that GCSC retaliated against her by denying her requests for accommodation, this is “insufficient to serve as a stand-alone retaliation claim because these allegations merely restate Count I.” Pack v. Illinois Dep’t of Healthcare and Family Serv., No. 13-cv-8930,
In Rodgers’ complaint, she alleges she was “denied a promotion or hiring to which she would have been entitled.” [Compl. ¶ 18.] GCSC argues that it took no adverse job action against Rodgers, and that it was entitled to summary judgment on this count. [DE 30 at 14-15.] Rodgers does not advance any argument in her response in opposition to the motion for summary judgment; therefore, this claim is also deemed abandoned and waived. See Palmer,
Even assuming, arguendo, she did not waive the argument, it would still fail
3. Intentional Infliction of Emotional Distress
Rodgers also states a count for intentional infliction of emotional distress (Count III). As with Count II, Plaintiff completely fails to address GCSC’s argument that summary judgment is appropriate on this count. Therefore, the claim for intentional infliction of emotional distress is waived. See Palmer,
Even if Rodgers had not waived this claim, it would still fail. Count III alleges that GCSC “intentionally, recklessly and/or negligently inflicted severe and prolonged emotional distress upon Rodgers by and through its harassment and discrimination of Rodgers through the term and duration of Rodgers’ employment with GCSC.” [Compl. at 8.] The ITCA provides that a claim against a political subdivision is barred unless the prescribed notice is filed within 180 days after the loss occurs. Ind. Code 34-13-3-8; see also Davidson v. Perron,
Conclusion
For the reasons set forth above, the Motion for Summary Judgment [DE 29] is GRANTED IN PART AND DENIED IN PART. The Motion for Summary Judgment is GRANTED as to Counts II and III and the Clerk is ORDERED to DISMISS WITH PREJUDICE Counts II and III of Plaintiffs complaint. The Motion for Summary Judgment is DENIED as to the reasonable accommodation claim under the ADA in Count I, which remains pending. The Objection and Motion to Strike [DE 37] is DENIED.
SO ORDERED.
Notes
. The Court notes that Congress amended the ADA, effective January 1, 2009, to broaden the class of individuals who qualify as "disabled” under the statute. Pub. L. No. 110-325, 112 Stat. 3553. Although the amendments are not retroactive, see Winsley,