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Ramirez v. Bolster & Jeffries Health Care Group, LLC

United States District Court, W.D. Kentucky, Bowling Green Division

September 21, 2017

RICARDO RAMIREZ and KIM WADE, Co-Personal Representatives of the Estate of Malana Sneed Ramirez PLAINTIFFS



         This matter is before the Court on Defendant's Motion for Summary Judgment (DN 71), Plaintiffs' Motion for Summary Judgment (DN 96), Defendant's Motion to Strike (DN 104), Defendant's Motion for Leave to File Excess Pages (DN 107), Plaintiffs' Motion for Leave to Resubmit (DN 125), Plaintiffs' Motion for Leave to Resubmit (DN 128), and Defendant's Motion to Strike (DN 131). The motions are ripe for adjudication. For the reasons outlined below, Defendant's Motion for Leave to File Excess Pages is GRANTED; Defendant's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART; and Plaintiffs' Motion for Summary Judgment, Defendant's Motions to Strike, and Plaintiffs' Motions for Leave to Resubmit are DENIED.


         In March 2011, Malana Sneed Ramirez (“Ramirez”) was hired as a certified nursing assistant (“CNA”) by Defendant Bolster & Jeffries Health Care Group, LLC (“Bolster & Jeffries”) at its Hearthstone Place nursing home facility in Elkton, Kentucky. (1st Am. Compl. ¶ 9, DN 19; Kemp Decl. ¶ 5, DN 71-2). Hearthstone Place has two different levels of care- skilled care and personal care-and residents' rooms are segregated on this basis. (Kemp Dep. 19:5-7, Mar. 1, 2016, DN 85-3). When Ramirez started, she worked as a CNA on the skilled-care side of the facility where her duties included “push[ing], pull[ing], mov[ing], and/or lift[ing] a minimum of 75 pounds . . . .” (Kemp Dep. 36:19-25; Evans Decl. ¶ 4, DN 71-3; Kemp Decl. ¶ 7; Kemp Decl. Ex. C, DN 71-2). “[E]ach resident has a plan of care that specifies what kind of care they receive, whether it be a two-person transfer, one-person transfer, or hoyer lift, how much assistance that they need during bathing, grooming, [and] brushing their teeth.” (Kemp Dep. 14:2-6). The CNAs are responsible for reviewing each patient's plan of care and making sure that the care is received during the CNA's shift. (Kemp Dep. 13:13-14:18; Kemp Decl. ¶ 6, DN 71-2; Evans Decl. ¶ 3).

         Working as a CNA on the skilled-care side of Hearthstone Place, Ramirez had an optional work schedule under what is referred to as the “Baylor program.” (Kemp Decl. Ex. M, DN 71-2). Unlike a traditional work schedule, under the Baylor program a CNA would work a twelve-hour shift on both Saturday and Sunday but would be paid for an additional eight-hour shift for each of those days worked.[1] (Kemp Decl. Ex. M).

         On April 19, 2012, Ramirez requested and was approved for FMLA leave for the upcoming birth of her daughter. (Kemp Decl. ¶ 15, DN 71-2; Kemp Decl. Ex. J, DN 71-2). According to Hearthstone Place's records, Ramirez's FMLA leave was to begin on July 9, 2012. (Kemp Decl. ¶ 20). In May 2012, Ramirez's supervisors purportedly learned that she refused to transfer or lift three residents. (Kemp Dep. 74:8-76:16, 163:23-164:5; Evans Decl. ¶¶ 7-9, DN 71-3; Rose Decl. ¶¶ 4-5, DN 71-5). Ramirez disputes the report and asserts that Katherine Evans, a former administrator employed by Defendant, stated the transfer was done for the safety of Ramirez's unborn child. (Pls.' Mot. Leave Conventionally File Exs. Ex. 1, at 16, DN 83-2). Ramirez was then transferred to a non-lifting position on the personal-care side of the facility, which was part-time and paid $1.50 per hour less than the skilled-care job. (Kemp Dep. 93:3-15; Evans Decl. ¶¶ 9-10; Kemp Decl. ¶ 16).

         After the transfer, Ramirez received a written disciplinary report for failing to notify the family of a resident of the resident's refusal of care on May 14, 2012.[2] (Kemp Dep. 102:5-13; Kemp Decl. Ex. K, DN 71-2). On May 25, 2012, Ramirez left her shift early. (Kemp Decl. ¶ 19; Kemp Decl. Ex. L, DN 71-2). On May 30, 2012, Ramirez was counseled by Director of Nursing Wayne Charbonneau about an issue involving resident privacy. (Kemp Decl. ¶ 19; Kemp Decl. Ex. L). She was also asked to refrain from discussing work matters with residents. (Kemp Decl. Ex. L).

         In July 2012, Ramirez's daughter was born and she took FMLA leave. (R. Ramirez Dep. 23:9-12, Sept. 18, 2015, DN 85-7). Sometime that month, Ramirez contacted the U.S. Equal Employment Opportunity Commission (“EEOC”), and on August 1, 2012, Ramirez signed an EEOC Intake Questionnaire claiming she was demoted because of her pregnancy. (Smith Decl. Attach. 12-16, DN 115-1). The EEOC subsequently prepared a Charge of Discrimination form, but Ramirez never signed it. (Smith Decl. Attach. 10).

         After taking FMLA leave for her daughter's birth, Ramirez returned to work on September 15, 2012. (Kemp Decl. ¶ 21). Upon return, she was given two options: work on the skilled-care side in the Baylor program just as she had before the transfer in May, or resume the personal-care position she had when her FMLA leave began. (Kemp Dep. 113:15-114:4). Ramirez chose the skilled-care job and elected to participate in the Baylor program. (Lyon Dep. 31:1-10, 41:21-42:14; Kemp Dep. 113:24-114:4, 117:6-8).

         The next documented performance issue occurred more than two months after Ramirez returned from FMLA leave. In late November 2012, she received a verbal notice for being absent from work on November 24 and 25. (Kemp Dep. 122:4-123:7; Kemp Decl. Ex. N, DN 71-2). On December 12, 2012, Ramirez filed this action alleging sex and pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17, and the Kentucky Civil Rights Act (“KCRA”), KRS Chapter 344. (Compl. ¶¶ 37-56, DN 1). She also alleged disability discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, and the KCRA, violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654, and retaliation under KCRA.[3] (Compl. ¶¶ 57-78).

         On April 21, 2013, the daughter of a resident under Ramirez's care purportedly complained that she found her mother with feces on her.[4] (Kemp Decl. Ex. O, DN 71-2; Kemp Dep. 126:16-18; Holder Decl. ¶¶ 3-4; Charbonneau Decl. ¶¶ 7-11, DN 71-4). Because of this incident and Ramirez's alleged conduct in response to the incident, one of the owners of the facility, Nancy Bolster (“Bolster”), decided to terminate Ramirez's employment. (Kemp Dep. 139:14-140:5, 150:25-151:2; Bolster Decl. ¶ 9, DN 71-1).

         After the termination, Ramirez amended the Complaint to assert an additional claim of wrongful termination based on a violation of KRS 216B.165. (1st Am. Compl. ¶¶ 81-90). During the pendency of this action, Ramirez died, and her co-personal representatives revived this action. (Order 1, DN 38; Order 4, DN 73). Following discovery, both parties have moved for summary judgment and have filed other related motions, which are ripe for decision.


         This Court has subject-matter jurisdiction of this matter based upon federal question jurisdiction. See 28 U.S.C. § 1331. In addition, the Court has supplemental jurisdiction over Plaintiffs' state-law claims. See 28 U.S.C. § 1367(a).


         A. Defendant's Motion to Strike (DN 104)

         Defendant has raised numerous objections to evidence placed in the record by Plaintiffs and has moved to strike various exhibits filed by Plaintiffs because the exhibits are inadmissible. (Def.'s Mot. Strike 5-22, DN 104 [hereinafter Def.'s Mot. Strike - Evidence]). This motion, however, is improper.

         Fed. R. Civ. P. 56(c)(2) allows a party to object to summary judgment evidence that cannot be presented in a form that would be admissible at trial. Fed.R.Civ.P. 56(c)(2). Since the 2010 amendments to Rule 56, “[t]here is no need to make a separate motion to strike.” Fed.R.Civ.P. 56, advisory committee note of 2010. “[M]otions to strike are generally disfavored. Rather than striking material, a court may simply ignore inadmissible evidence.” Trs. of the Plumbers & Steamfitters Local 184 Supplemental Pension Plan v. Ivitts Plumbing Contractors, Inc., No. 5:12-CV-112-TBR, 2014 WL 3905589, at *3 (W.D. Ky. Aug. 11, 2014) (citation omitted).

         In ruling on a motion for summary judgment, the Court must consider only evidence that would be admissible at trial. See McFeeley v. United States, 700 F.Supp. 414, 418 n.1 (S.D. Ind. 1988) (citing Fed.R.Civ.P. 56(e)). This case is complicated by Ramirez's untimely passing; the Court, however, is still bound by the rules of evidence and “[i]nadmissible hearsay evidence cannot be considered.” Woida v. Genesys Reg'l Med. Ctr., 4. F.Supp.3d 880, 903 (E.D. Mich. 2014) (citations omitted).

         In support of their dispositive motion and in opposition to Defendant's dispositive motion, Plaintiffs rely on audio recordings from three different days of testimony from the unemployment insurance hearing held following Ramirez's termination.[5] (Pls.' Mot. Leave File Conventionally File Exs. Ex. 1, DN 83-1). Defendant has objected to the consideration of those recordings based on hearsay and authentication issues. (Def.'s Mot. Strike - Evidence 5-8). Because Ramirez was not deposed in this case, it is understandable that Plaintiffs would seek to rely on her testimony in that administrative proceeding. That testimony, however, is hearsay under Fed.R.Evid. 801 which is inadmissible unless an exception or exclusion applies. See Fed. R. Evid. 802.

         Because of Ramirez's unavailability to testify, the Court must determine whether the hearsay exception in Rule 804(b)(1) applies. In relevant part, the rule provides:

         The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1)Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had-or, in a civil case, whose predecessor in interest had-an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Fed. R. Evid. 804(b)(1). While Ramirez's testimony in an administrative proceeding satisfies the first element, the second element has arguably been met because both parties were represented by counsel during the approximately three-hour hearing held over multiple days, and counsel actively questioned witnesses during that hearing. For the purpose of ruling on the pending motions for summary judgment, the Court will assume-but not rule-that the testimony from the unemployment insurance hearing would be admissible at trial.

         As noted by Defendant, the transcripts from the unemployment insurance hearing apparently created by Plaintiffs are hearsay and also suffer from authentication issues. (Def.'s Mot. Strike - Evidence 5-8). One version purports to be transcribed from each of the three days of the hearing. (Pls.' Mot. Leave Conventionally File Exs. Ex. 1). Other transcripts contain annotations and editorial comments that were clearly not part of the original testimony. (Powell Aff. Ex. 1-A, DN 128-2; Powell Aff. Ex. 1-I, DN 128-2). Like the testimony from the hearing itself, the Court will assume that the transcripts (without the editorials, of course) would be presented in admissible form for trial. See Lawyers All. For Nuclear Arms Control-Philadelphia Chapter, 766 F.Supp. 318, 323-24 (E.D. Pa. 1991) (“When addressing a summary judgment motion the court may consider evidence that would not be admissible at trial only if the court finds that the evidence can be reduced to a form that would be so admissible.” (citations omitted)). See also Fed. R. Civ. P. 56(c)(2) (“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.”).

         Finally, the affidavits executed by Plaintiffs' counsel are not admissible evidence. (Powell Aff., DN 127-2; Powell Aff., DN 128-2). Plaintiffs' counsel does not have personal knowledge of the events alleged in the Amended Complaint. See Fed. R. Evid. 602; Robert G. Lawson, The Kentucky Evidence Law Handbook § 3.05[1][a] (5th ed. 2013) (“All testimony must be based on a witness' observation of the matter about which he is testifying.” (internal quotation marks omitted) (citation omitted)). In addition, counsel's characterization of witnesses' testimony is not personal knowledge and is likely based on hearsay. See Hack v. H.V.R. Parts, Inc., 742 F.Supp. 283, 286 (W.D. Pa. 1990) (“The affidavit must be based on personal knowledge and not on the hearsay statement of another purported witness.” (citing Sellers v. M. C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988))); see also Fed. R. Civ. P. 56(c)(4) (“An 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.”). Accordingly, the Court will not consider counsel's affidavits in ruling on the pending motions.

         As explained above, Fed.R.Civ.P. 56(c)(2) requires the Court to consider only evidence that would be admissible at trial in addressing the merits of the parties' summary judgment motions. The Court will assume for the purpose of the pending dispositive motions that the recordings of the unemployment insurance hearing would be admissible, but counsel's affidavit would not be admissible. Defendant's motion to strike, however, will be denied.

         B. Defendant's Motion to Strike (DN 131)

         Defendant has also moved to strike Plaintiffs' Response to Defendant's Motion for Summary Judgment (DN 127). (Def.'s Mot. Strike, DN 131). The Court had previously struck Plaintiffs' response as being noncompliant with Court rules and, as Defendant notes, Plaintiffs' revised response filed pursuant to that order neither reflects full respect for this Court's prior order nor the requirements of Court rules. (Order 1-2, DN 124; Def.'s Mot. Strike 1-2, DN 131).

         The Court does not believe, however, it would be in the interest of justice to further delay its ruling on the pending motions and require Plaintiffs to resubmit. While the Court elects not to strike Plaintiffs' response in this instance, Plaintiffs' counsel is warned that she must follow the rules of this Court as a member of the bar. This Court considers modifying font sizes, line spacing, and margins as blatant attempts to circumvent the page limitations imposed by LR 7.1, and such attempts will not be tolerated. An appropriate motion seeking leave shall be filed prior to filing anything with the Court that does not comply with Federal Rules of Civil Procedure or this Court's Local Rules. Defendant's motion to strike, however, will be denied.

         C. Defendant's Motion for Leave to File Excess Pages (DN 107)

         Defendant has moved for leave to file a reply that exceeds the length permitted by LR 7.1(d) by one page. (Def.'s Mot. Leave File Excess Pages, DN 107). Despite objection, and in light of Plaintiffs' efforts to circumvent the page limitation, Defendant's request for leave to file a reply with one additional page beyond what LR 7.1(d) permits is reasonable. The motion will be granted.

         D. Plaintiffs' Motion for Leave to Resubmit (DN 125)

         Plaintiffs have also moved for the Court to allow them to file their objections to evidence in the record. (Pls.' Mot. Leave Resubmit, DN 125). The proposed filing consists of 28 pages of evidentiary objections arguing the weight of the evidence presented. Having reviewed it, however, nothing in this submission changes the Court's analysis below. It contains nothing more than Plaintiffs' nitpicking of Defendant's evidence in support of the motion for summary judgment and quarreling with Defendant's characterization of that testimony. The ultimate effect of this submission is to increase the pages allotted for Plaintiffs' response to Defendant's dispositive motion from 40 to 68 pages.

         In ruling on the dispositive motions, the Court will consider only evidence that could be submitted in a form that would be admissible at trial. Accordingly, this motion will be denied.

         E. Plaintiffs' Motion for Leave to Resubmit (DN 128)

         In Plaintiffs' Motion for Leave to Resubmit (DN 128), they seek leave to refile the response that the Court previously struck from the record as being in violation of LR 7.1. (Order, DN 124). As stated above, members of the bar are expected to comply with Court rules, and this motion is not well-taken in light of the Court's previous order. Because Plaintiffs have already filed a response to Defendant's summary judgment motion and had ample opportunity to respond to Defendant's dispositive motion, the Court will deny this motion. Having previously stricken Plaintiffs' 47-page response and 28-page “exhibit” containing additional legal arguments opposing the motion, the Court will deny Plaintiffs' motion to resubmit the same substance in a 28-page addendum to their present 40-page response. (Order, DN 124).

         F. Plaintiffs' Motion for Summary Judgment (DN 96)

         Plaintiffs assert that they are entitled to summary judgment on the basis that Defendant's defenses are barred by collateral estoppel, res judicata, claim preclusion, and judicial estoppel. (Pls.' Mot. Summ. J. 4-18, DN 96). As outlined below, this motion will be denied.

         In ruling on a motion for summary judgment, the Court must determine whether there is any genuine issue of material fact that would preclude entry of judgment for the moving party as a matter of law. See Fed. R. Civ. P. 56(a). The moving party bears the initial burden of stating the basis for the motion and identifying evidence in the record that demonstrates an absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party satisfies its burden, the non-moving party must then produce specific evidence proving the existence of a genuine issue of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         While the Court must view the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show the existence of some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted). Rather, the non-moving party must present specific facts proving that a genuine factual issue exists by “citing to particular parts of the materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.

         Plaintiffs' reliance on collateral estoppel, res judicata, and claim preclusion contradicts well-established law as to the effect of the administrative process applicable to unemployment insurance claims. As this Court has noted, “the Sixth Circuit has held that a Kentucky Unemployment Insurance Commission's decision awarding a plaintiff unemployment benefits does not ‘have issue-preclusive effect upon Title VII claims.'” Thomas v. Kmart Corp., No. 4:04CV-171-M, 2006 WL 2802266, at *8 (W.D. Ky. Sept. 28, 2006) (quoting Hicks v. Floyd Cty. Bd. of Educ., 99 F. App'x 603, 604 (6th Cir. 2004) (per curiam)). Similarly, as the Kentucky Supreme Court has explained:

An unemployment compensation hearing is designed to adjudicate promptly a narrow issue of law, and to grant a limited remedy to an unemployed worker. The use of an unemployment compensation decision to bind the parties in a subsequent . . . action . . . would be wholly inappropriate, and would frustrate the underlying purpose of . . . collateral estoppel. If findings entered at an unemployment compensation hearing may be used to establish the employer's liability . . . in a subsequent lawsuit, the employer would have a strong incentive to use its superior resources consistently to oppose a discharged employee's claim for unemployment benefits. Issues presented . . . will be contested strongly, and the hearings will become lengthy and more detailed, and will no longer be suited to the prompt resolution of unemployment compensation claims. Judicial economy would be frustrated, rather than improved, as many unemployment compensation hearings [would] become forums in which claims for unlawful or unconstitutional discharge are tried.

Berrier v. Bizer, 57 S.W.3d 271, 281 (Ky. 2001) (internal quotation marks omitted) (quoting Bd. of Educ. of Covington v. Gray, 806 S.W.2d 400, 403 (Ky. 1991)). See also Hicks v. Floyd Cty. Bd. of Educ., 99 F. App'x 603, 605 (6th Cir. 2004) (holding that the Kentucky Unemployment Insurance Commission's determination that the employee was terminated without good cause was irrelevant in the employee's subsequent civil suit alleging violations under Title VII and 42 U.S.C. § 1983). Thus, Ramirez's unemployment claim cannot be used in the present action as the basis of collateral estoppel, res judicata, or claim preclusion.

         The Court likewise concludes that summary judgment should be denied as to the applicability of judicial estoppel in this case. As the Sixth Circuit has explained:

The doctrine of judicial estoppel bars a party from (1) asserting a position that is contrary to one that the party has asserted under oath in a prior proceeding, where (2) the prior court adopted the contrary position either as a preliminary matter or as part of a final disposition. A court should also consider whether the party has gained an unfair advantage from the court's adoption of its earlier inconsistent statement. Although there is no set formula for assessing when judicial estoppel should apply, it is well-established ...

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