United States District Court, W.D. Kentucky, Bowling Green Division
RICARDO RAMIREZ and KIM WADE, Co-Personal Representatives of the Estate of Malana Sneed Ramirez PLAINTIFFS
BOLSTER & JEFFRIES HEALTH CARE GROUP, LLC DEFENDANT
MEMORANDUM OPINION AND ORDER
N. STIVERS, JUDGE UNITED STATES DISTRICT COURT
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
STATEMENT OF FACTS AND CLAIMS
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).
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. (Kemp Decl. Ex. M).
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.
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. (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).
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).
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).
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. (Compl. ¶¶ 57-78).
April 21, 2013, the daughter of a resident under
Ramirez's care purportedly complained that she found her
mother with feces on her. (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).
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.
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).
Defendant's Motion to Strike (DN 104)
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.
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).
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
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. (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.
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:
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.
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
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[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.
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.
Defendant's Motion to Strike (DN 131)
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).
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
Defendant's Motion for Leave to File Excess Pages (DN
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.
Plaintiffs' Motion for Leave to Resubmit (DN
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.
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.
Plaintiffs' Motion for Leave to Resubmit (DN
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).
Plaintiffs' Motion for Summary Judgment (DN
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.
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
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
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
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
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.
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