Opinion
CAUSE NO. IP99-1122-C-T/G.
February 26, 2001.
ENTRY ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, INCLUDING DEFENDANTS' MOTIONS TO STRIKE
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Plaintiffs, Donna M. Gaskins and Elizabeth A. Corey, sued Defendants, Vencor, Inc., and John C. Olmstead, concerning events arising out of Plaintiffs' employment relationships with Defendants. Plaintiffs' Complaint list two counts. In Count I, Plaintiffs allege that Vencor sexually discriminated against them in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), 2000e-3(a), in the form of sexual harassment and retaliation. In Count II, Plaintiffs allege state law claims of intentional infliction of emotional distress and intentional interference with a business relationship against Mr. Olmstead. Additionally in Count II, Ms. Gaskins alleges assault and battery against Mr. Olmstead. Defendants moved for summary judgment on both Counts of Plaintiffs' Complaint. Those motions are currently before the court. For the following reasons, Defendants' motions will be denied in part and granted in part.
I. INTRODUCTION
In this case, Plaintiffs allege that they were subjected to repeated acts of sexual harassment by John Olmstead, a supervisor in the hospital where all three were employed. Donna Gaskins admits that at some point in the past she had a consensual affair with Mr. Olmstead. However, after some time had passed, their relationship began to sour and, according to Ms. Gaskins, she was subjected to reprehensible treatment by Mr. Olmstead; treatment which amounted to sexual harassment. Mr. Olmstead, however, as far as the court can deduce, disputes that he and Ms. Gaskins had any affair whatsoever. Quite obviously, their versions of the events that led to this cause of action are exactly diametrical. Eventually, Ms. Gaskins' employment was terminated. That is not in dispute.
However, the reason for her dismissal is another center of controversy in this case. While Defendants assert that Ms. Gaskins was terminated by Mona Euler, Mr. Olmstead's supervisor, because she sexually harassed Mr. Olmstead in violation of company policy, Ms. Gaskins asserts that Vencor's motivation for terminating her was retaliation. Elizabeth Corey also claims that she was sexually harassed by Mr. Olmstead. She too is no longer employed by Vencor, and the circumstances surrounding her dismissal are subject to debate. Ms. Corey claims that she was constructively discharged in retaliation for complaining about Mr. Olmstead's conduct. Defendants, on the other hand, maintain that Ms. Corey mistreated patients, and for that reason her employment at Vencor came to an end.
Of course, the specific events which gave rise to this lawsuit are the subject of great dispute. This brief description of the case is presented only to provide the reader with some (although admittedly cursory) knowledge of the general nature of this suit in an attempt to make the immediately following discussions easier to comprehend. It is not meant to be a complete examination of this case, or even all of the causes of action alleged, but rather a capsule summary of the nature of this cause of action. A more thorough discussion of the facts follows below. However, before reaching the facts, the shaggy underbrush of nit picking attacks on Plaintiffs' evidentiary submissions must be cleared out.
II. DEFENDANTS' OBJECTIONS TO PLAINTIFFS' STATEMENT OF ADDITIONAL MATERIAL FACTS AND DEFENDANTS' MOTIONS TO STRIKE
A. Objections To Plaintiffs' Statement Of Additional Material Facts
Plaintiffs submitted to this court a total of 147 Additional Material Facts ("AMFs"). While only denying 4 of those facts, Defendants objected to at least 83, including over 215 single objections! While it is not necessary to address each and every one of those objections at this point, some general comments on the merits of those objections as a whole is instructive before the court sets forth the Facts for the purpose of deciding Defendants' motions.
While some of Defendants' objections are meritorious, most of their objections border on the frivolous. For instance, Defendants, by the court's count, made 68 foundational objections, including many in which Defendants argue that Plaintiffs lack personal knowledge to testify to events that happened to them. The court is at a loss to understand how Plaintiffs lack personal knowledge of those events. The court can only assume from the quality and numerosity of Defendants' objections that those objections were largely made in an effort to hinder the court's consideration of the material facts in this case.
Defendants' objections to AMF 56 are illustrative of Defendants' attempt to cloud this court's picture of the undisputed material facts. AMF 56 states, "Olmstead made Gaskins bleed and would not stop when she told him to." Ms. Gaskins cites volume II of her deposition at page 90, lines 10 through 17. Defendants object to this simple fact arguing that it assumes facts not in evidence, is unintelligible, and the testimony cited in support of this fact is inadmissible hearsay and lacks foundation. Before addressing Defendants' specific objections, the court will take the time to lay out the deposition testimony which is so objectionable to Defendants.
Q During the course of your employment at Vencor, did John Olmstead ever strike you?
A Hit me?
Q Yes.
A He never hit me. But he had me bleeding twice and he did push me backwards against — oh, he did push me backwards once again [sic] the countertop, and I hurt my back. And then I fell and hurt my knee that time when he scared me. But he never punched me, struck me.
Q When you say he made you bleed twice, tell me about those two incidents.
A One was the — with the attempted anal sex. When I went to the bathroom, I realized that — do you understand?
Q I do. But he did stop when you asked him to stop, right?
A Well, yeah. But he got what he wanted anyway. I mean, the other time —
Q Let's stop right there. He got what he wanted anyway. Did he ejaculate while you were having anal sex?
A No. I mean, it didn't work. It was vaginal after that.
Q All right. And the other time?
A He stuck his hands down my pants and his fingernail scraped the vaginal wall, the inside of the vaginal wall.
Q Okay. As a consequence of either one of those two incidents of bleeding, did you seek medical care?
A No. But when he scratched me like that, I told him to stop, he was hurting me. And he told me to stop being such a baby.
Q What did you say to that?
A Nothing. It was upsetting. I mean, I probably said something, but I don't know now.
(Gaskins Dep. Vol. II at 89:10-90:20.)
From the cited deposition testimony and AMF 56, the court can conclude that as an AMF Ms. Gaskins is stating that Mr. Olmstead made her bleed while attempting anal sex, and that he cut the interior vaginal wall with his fingernail, thus making her bleed, and refused to stop when she requested. This testimony (and reasonable inferences from it) clearly and directly support AMF 56. It is neither unintelligible nor objectionable. The court cannot begin to discern what Defendants' counsel could not understand about it.
Moreover, from the deposition testimony above, it appears quite clear that Vencor's attorney deposing Ms. Gaskins did not find her testimony on these subjects to be "unintelligible." Additionally, no fact is assumed which is not in evidence. Federal Rule of Civil Procedure 56(c) makes clear that the court can consider deposition testimony when determining whether summary judgment is appropriate. This deposition testimony is not objectionable and, thus, these facts are in evidence for the purpose of determining whether summary judgment is warranted here.
The court notes that the same attorney who deposed Ms. Gaskins, also signed Defendants' Responses to Plaintiffs' Additional Material Facts.
The hearsay and foundational objections are equally meritless. What Ms. Gaskins told Mr. Olmstead is admissible to show that Mr. Olmstead was on notice that Ms. Gaskins wanted him to stop touching her, and what Mr. Olmstead told Ms. Gaskins is admissible as an admission of a party opponent. See FED. R. EVID. 801(d)(2). Ms. Gaskins clearly has personal knowledge of these events and, thus, Defendants' lack of foundation argument is worthless. See FED. R. EVID. 602. A person who suffers injuries of these types during compelled sexual activity has a firsthand basis of knowledge about how the bleeding was caused. Although the limits of the human anatomy may have prevented Ms. Gaskins from visually observing the precise penetrations that caused the bleedings, it is absurd to argue that she lacked a foundation of knowledge about how the bleedings were initiated.
This example merely illustrates a series of similar tactics utilized by counsel for Defendants in quibbling about facts asserted by Plaintiffs. This gamesmanship does nothing more than place numerous and tedious roadblocks in the way of the court's consideration of the merits of a summary judgment motion.
As for other specific objections that Defendants raise to individual AMFs, the court will address them as is necessary. To the extent that the court relies on an AMF to which Defendants object, the court will address those objections to that particular AMF in a footnote in the Facts section of this Entry.
However, as Defendants lodge numerous hearsay and foundational objections, it is appropriate to discuss those objections in general terms. First, Defendants make numerous hearsay objections to Plaintiff's AMFs which contain, or rely upon, out of court statements made by Mr. Olmstead. It appears to the court that in making these objections, Defendants are either ignoring Mr. Olmstead's status as a party, in which case these statements are admissible under Rule 801(d)(2)(A), or are ignoring his responsibilities at Vencor. See FED. R. EVID. 801(d)(2)(A), 801(d)(2)(D). Rule 801(d)(2)(D) provides that statements made by an agent of a party are admissible non-hearsay as admissions by a party-opponent so long as they regard activities within the scope of the agent's employment. See FED. R. EVID. 801(d)(2)(D). Mr. Olmstead is clearly an agent of Vencor as he served Vencor in a managerial/supervisory role (see detailed discussions of Mr. Olmstead's position at Vencor below). Moreover, Mr. Olmstead's statements that are being offered by Plaintiffs were made in the scope of his employment. All such statements, in some regard, concern the terms and conditions of Plaintiffs' employment at Vencor which Mr. Olmstead had the authority to effect and which he did in fact effect (again, see detailed discussions below). See Stagman v. Ryan, 176 F.3d 986, 996 (7th Cir. 1999) (holding that statement of an employee was admissible against an employer under Rule 801(d)(2)(D) when evidence existed which suggested that statement was within the scope of the employee's employment). How much authority in this regard Mr. Olmstead actually possessed is disputed. However, the facts considered in light most favorable to Plaintiffs, as the court must consider them (see discussion below), compel the court to conclude that Mr. Olmstead had enough authority to effect the terms and conditions of Plaintiffs' employment such that statements made in regard to the terms and conditions of Plaintiffs' employment were statements made in the scope of Mr. Olmstead's employment.
As an aside, the court notes that in subsequent rulings made in this Entry it makes reference to Rule 801(d)(2) and/or admissions of a party-opponent. In doing so, the court implicitly incorporates this general discussion of Rule 801(d)(2) into those rulings. Also, general references to Rule 801(d)(2) and/or admissions by a party-opponent are references to both Rule 801(d)(2)(A) and Rule 801(d)(2)(D).
Next, because Defendants make, by the court's count, 68 foundational objections, some general discussion of Rule 602 is appropriate. That rule provides:
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.
FED. R. EVID. 602. All that is required by this rule is that the witness have personal knowledge of the events to which she testifies. See, e.g., United States v. Powers, 75 F.3d 335, 340 (7th Cir. 1996) ("Federal Rule of Evidence 602 requires that witnesses testify only on matters about which they have personal knowledge.") (citation omitted). The rule does not require that the witness' testimony be factually accurate. In other words, admissibility — first hand knowledge of a fact or an event — must be distinguished from credibility — the conclusive establishment of such fact or event. Merely because a witness is able to give testimony as to a fact, does not mean that such fact has been conclusively established. Rather, whether a fact has been conclusively established is a matter of credibility for the trier of fact to decide. Thus, while Defendants dispute the credibility of certain (actually, numerous) AMFs, the court will still consider those AMFs in this proceeding so long as they are properly admissible.
B. Motions To Strike
In their Reply Brief, Defendants move to strike eleven of the fourteen paragraphs of Ms. Gaskins' affidavit. Most of Defendants' arguments are without merit but, nonetheless, a brief discussion is warranted.
Defendants first move to strike paragraphs 3 and 4 of the affidavit arguing that the exhibits referred to in these paragraphs are inadmissible hearsay and lack proper authentication. Paragraph 3 states:
The documents contained at tabs 16, 19, and 20 of Plaintiff's Exhibits are true and accurate copies of documents I delivered to Euler on April 15, 1998, in support of my claims that I was sexually harassed by John Olmstead.
(Gaskins Aff. ¶ 3.) Paragraph 4 states:
The documents contained at tabs 3-31 of Plaintiff's Exhibits are true and accurate copies of parts of the EEOC file related to my Charge of Discrimination against Vencor, which were submitted to the EEOC by Vencor.
(Id. ¶ 4.) Defendants' objections are extremely broad. Defendants fail to direct the court to the portions of the exhibits, or even the exact exhibits themselves, that Defendants believe are inadmissible on hearsay and authenticity grounds. Certainly, Defendants are not taking the position that each of the exhibits at tabs 3 through 31 are inadmissible on those grounds, for even a cursory review of the documents located at those tabs makes clear that at least some of those documents are admissible in their entirety. Defendants, therefore, have failed to sufficiently tailor their objections to allow the court to determine with specificity which documents, or portions thereof, Defendants find objectionable.
Accordingly, it is enough to conclude that to the extent that the documents contained at tabs 3 through 31 contain inadmissible hearsay or lack proper authentication, they will not be considered for the purpose of deciding Defendants' summary judgment motions.
Next, Defendants move to strike paragraph 5 arguing that the first three sentences are inadmissible hearsay. In these sentences, Ms. Gaskins reiterates a discussion she had with Mr. Olmstead, including things she said to Mr. Olmstead and things he said to her. None of these sentences include inadmissible hearsay. First, what Ms. Gaskins told Mr. Olmstead is proper to include in her affidavit. These statements are admissible to show that Mr. Olmstead had notice that Ms. Corey was made aware of a relationship between Ms. Gaskins and Mr. Olmstead and that Ms. Corey threatened to report that relationship to Ms. Euler, even if no such relationship did exist. Next, what Mr. Olmstead told Ms. Gaskins is certainly not hearsay, but rather is an admission by a party-opponent. See FED. R. EVID. 801(d)(2).
Note that what Ms. Corey told Ms. Gaskins is inadmissible hearsay to the extent that it is offered for the truth of the matter asserted and, thus, will not be considered for its truth.
Defendants then move to strike paragraphs 6 through 10 on the grounds that these paragraphs are "self-serving and conclusory allegations that lack foundation." (Defs.' Reply Br. at 7.) In these paragraphs, Ms. Gaskins iterates that Mr. Olmstead, on April 10, 1998, did not inform her of a planned promotion to Manager of Radiology Department, she wanted such promotion, and she never refused to undertake the duties of Radiology Manager; Mr. Olmstead was her supervisor at Vencor whom she understood to have the authority to evaluate, promote, discipline and fire her; Mike Owens, Mr. Olmstead's predecessor, hired Ms. Gaskins and had the authority that Ms. Gaskins believed Mr. Olmstead to have; Mr. Olmstead demanded that Ms. Gaskins exchange sex for necessary job related equipment including a lead apron; and Ms. Euler told Ms. Gaskins, in reply to Ms. Gaskins' inquiry, that the reason Ms. Gaskins was suspended and Mr. Olmstead was not was that Mr. Olmstead was the first to file a complaint. As an initial matter, it is fair to note that nearly every affidavit filed with this court by plaintiffs and defendants alike is self-serving in at least some regard. Self-serving testimony is not per se inadmissible, but rather is inadmissible only if the statements are made without a basis of personal knowledge. These paragraphs of Ms. Gaskins' affidavit are not lacking in foundation, nor are they conclusory. Ms. Gaskins is entirely competent to testify as to these matters.
Therefore, to the extent they are relevant, paragraphs 6 through 10 will be considered. Defendants also move to strike paragraph 11. This paragraph states:
Attached as Exhibit A is a true and accurate copy of a note I got from Olmstead when I worked at Vencor. The note got torn. Attached as Exhibit B is what I believe the note said.
(Gaskins' Aff. ¶ 11.) Defendants submit that, "Exhibit A speaks for itself; Exhibit B is inadmissible secondary evidence; Exhibit A is the best evidence of the contents of the document." (Defs.' Reply Br. at 8.) The best evidence rule "generally requires that the original document itself be introduced to show the contents of the document." United States v. Shriver, 842 F.2d 968, 975 n. 10 (7th Cir. 1988) (citing FED. R. EVID. 1002).
However, "[t]he original is not required, and other evidence of the contents of a writing . . . is admissible if . . . [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith[.]" FED R. EVID. 1004(1). There is no evidence, and Defendants do not assert, that Ms. Gaskins destroyed the original note. Nor is it disputed that the note is in fact torn and impossible to read in its current state. Therefore, the original note is not required. Because it is not disputed that Ms. Gaskins has personal knowledge of the contents of the original note, her testimony as to how the original note read in its entirety (Exhibit B) will be considered.
Defendants move to strike paragraph 13, which states:
Attached hereto as Exhibit C is a true and accurate copy of a letter I wrote for the EEOC. The incidents referred to on the third and fourth pages of that letter, as parts A and B, concerning Olmstead's threats which caused me to engage in sexual conduct occurred in the beginning of March, [sic] 1998.
(Gaskins' Aff. ¶ 13.) Defendants complain that Exhibit C is hearsay and the second sentence is a self-serving allegation that lacks foundation. First, Exhibit C in totality is not hearsay. Much, if not all, of Exhibit C contains admissible evidence. Ms. Gaskins can certainly testify to admissions of Mr. Olmstead and to events as she perceived them so long as she is competent to testify to those events. Again, Defendants did not state with specificity which parts of Exhibit C they are objecting to. Exhibit C is over four pages long and is typed with single lined spacing. Much of the contents of Exhibit C are not relevant for deciding Defendants' summary judgment motions. Because Defendants did not specifically object to certain parts of Exhibit C, because of the length of Exhibit C and because of its irrelevant content, the court will not do Defendants' job and specifically indicate what portions/sentences of Exhibit C are inadmissible hearsay. It is enough for the court to say that it will not consider inadmissible hearsay in ruling on Defendants' motions. Next, the second sentence of paragraph 13 does not lack foundation. Ms. Gaskins is competent to testify as she has.
In fact, the only portion of Exhibit C upon which the court relied in deciding these summary judgment motions is Ms. Gaskins' description of an episode involving oral sex performed by her on Mr. Olmstead. That portion of Exhibit C is quoted at page 27 of this Entry and is clearly not inadmissible hearsay. See FED. R. EVID. 801(d)(2). Moreover, those events as described by Ms. Gaskins are entirely relevant to the issues in this case.
As an aside, the court notes that while it was not necessary for the court to consider other portions of Exhibit C for the purpose of summary judgment, it may well be that other portions of that document are relevant and, if not objectionable, will be admitted at trial if properly offered by any party.
Finally, Defendants move to strike paragraph 14 on the grounds that the paragraph "is a self-serving allegation and lacks foundation." (Defs.' Reply Br. at 8.) In this paragraph, Ms. Gaskins states, "Tony Hirsch and Karen Phillips had nothing to do with radiology where I worked, and did not come into the darkroom radiology at Vencor." (Gaskins Aff. ¶ 14.) While this testimony may be self-serving, it is not inadmissible on that ground, because it does not lack foundation. It is quite clear that Ms. Gaskins has first hand knowledge of this subject matter on which she testifies. Ms. Gaskins, through the admissible evidence that she has submitted, has laid a foundation which demonstrates that she is in a position to know the things to which she testifies to here. She worked in the department daily, and was in a position to observe who came into the darkroom. A person who works in a department of this size has a first hand basis of knowing which other employees have something to do with that department.
III. LOCAL RULE 56.1(f)
Defendants, in their Reply Brief, argue that Plaintiffs have failed to comply with S.D. Ind. Local Rule 56.1(f) and therefore, Defendants' Statements of Material Facts should be admitted as undisputed and all evidence submitted by Plaintiffs should be disregarded. Defendants attack both Plaintiffs' responses to Defendants' Statements of Material Facts and Plaintiff's AMFs.
First, Defendants maintain that Plaintiffs' responses to Defendants' Statements of Material Facts do not comply with the requirements of Local Rule 56.1(f). Defendants argue that Plaintiffs' responses are non-compliant in that Plaintiffs do not identify with specificity what factual issue they dispute in the material facts that they deny, and that Plaintiffs fail to identify with specificity the record evidence that supports the denials. Given the unusual nature of Defendants' argument, the court thinks it necessary to repeat Local Rule 56.1(f) here in its entirety. That rule provides:
(f) Requirements for Factual Statements and Responses Thereto.
(1) Format and Numbering. The Statement of Material Facts shall consist of numbered sentences. The Response to Statement of Material Facts must be numbered to correspond with the sentence numbers of the Statement of Material Facts, preferably with each respective factual statement repeated therein. Any Statement of Additional Material Facts must consist of numbered sentences and start with the next number after the last numbered sentence in the Statement of Material Facts. The Reply to Response to Statement of Material Facts, Reply to Statement of Additional Material Facts, Statement of Additional Evidence on Reply, and Surreply to Additional Material Facts must be numbered in similar fashion, to correspond to the specific material fact to which they are responsive and with any additional facts numbered consecutively therefrom.
(2) Format of Factual Assertions. Each material fact set forth in a Statement of Material Facts, Response to Statement of Material Facts, Statement of Additional Material Facts, Statement of Additional Evidence on Reply, or Surreply to Additional Material Facts must consist of concise, numbered sentences with the contents of each sentence limited as far as practicable to a single factual proposition. Each stated material fact shall be substantiated by specific citation to record evidence. Such citation shall be by page number and paragraph or line number, if possible.
(3) Format of Objections to Asserted Material Facts or Cited Evidence. Objections to material facts and/or cited evidence shall (to the extent practicable) set forth the grounds for the objection in a concise, single sentence, with citation to appropriate authorities.
(4) In addition to filing and exchange of all required documents in hard copy format, whenever possible, the parties should exchange their factual Statements in electronic format on 3.5" computer disk. In certain cases the Court may ask the parties to submit copies of all summary judgment filings in electronic format.
S.D.Ind.L.R. 56.1(f). Additionally, Local Rule 56.1(g) provides:
(g) Effect of Factual Assertions. In determining the motion for summary judgment, the Court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are specifically controverted or objected to in compliance with L.R. 56.1(f). The Court will also assume for purposes of deciding the motion that any facts asserted by an opposing party are true to the extent they are supported by the depositions, discovery responses, affidavits or other admissible evidence.
S.D.Ind.L.R. 56.1(g).
Defendants complain that when Plaintiffs deny one of their `single, factual assertions,' Plaintiffs cite to many AMFs, which in turn contain many evidentiary citations, in support of the denial. For instance, Ms. Gaskins' denial of Statement of Gaskins Material Fact ("GMF") 6 and Ms. Corey's denial of Statement of Corey Material Fact ("CMF") 16 directs the court to see AMFs 1 through 36. Defendants suggest that denials such as these do not specifically controvert Defendants' material facts that are objected to, as is required. See S.D.Ind.L.R. 56.1(g). Defendants complain that because of this "shotgun" approach taken by Plaintiffs, it is "virtually impossible" for Defendants to determine the factual support for Plaintiffs' denials as "dozens of evidentiary cites" must be searched in order to find the supporting evidence that exists. (Defs.' Reply Br. at 3.) Plaintiffs' responses are in compliance with Local Rule 56.1(f), and Defendants' argument is without merit. Although not model in every instance, Plaintiffs' responses are sufficient such that Defendants' drastic remedy is rejected. Note that Defendants have not set forth specific deficiencies with particular responses, but rather have cited generally to Ms. Gaskins' responses to GMFs 5, 6, 21, 25, 27, 37, 38, 58, 75, 76, 83, 85, 86, 88 and 89, and Ms. Corey's responses to CMFs 16 and 56. Accordingly, it is not necessary for the court to address every response that Defendants have generally cited to as evidence that Plaintiffs violated Local Rule 56.1(f). Rather, it is enough to discuss Plaintiffs' responses generally, setting forth the reasons, including a detailed example, for the court's conclusion that Local Rule 56.1(f) was not violated by Plaintiffs. If the court deems it necessary to address in detail any particular response to one of Defendants' material facts, the court will do so only after determining that the fact is indeed material and, thus, including it in the Facts section of this Entry.
Ms. Corey's original response to CMF 56 states, "Deny. See AMF[,]" and her original response to CMF 57 states, "Admit. But see[.]" On December 12, 2000, Ms. Corey filed a motion requesting permission to change her responses to CMFs 56 and 57, as her incomplete responses to those facts were due to clerical errors. As Defendants do not oppose that motion and as it is obvious to this court that those errors were due to clerical mistakes, Ms. Corey's motion is hereby GRANTED, and her corrected responses will be considered with the original responses being ignored.
Local Rule 56.1(f)(2) requires that a response to a material fact be concise and "limited as far as practicable to a single factual proposition." However, that rule requires the same of a material fact. And, to the extent that it is not practicable to deny a material fact by asserting only a single, factual reason for the denial, Local Rule 56.1(f) does not require it be accomplished. For to adhere to such a strict requirement would be to greatly impede the court's effort at determining whether genuine issues of material fact exist. For example, GMF 6 and CMF 16 state, "Olmstead did not have the independent power to promote, suspend, hire, or discipline employees." Ms. Gaskins and Ms. Corey deny this fact and cite to AMFs 1 through 36 as reasons for the denials. While Defendants do not disagree that Ms. Gaskins and Ms. Corey may deny this fact, they complain that the manner in which they do so is improper.
Defendants, it appears, would rather Plaintiffs deny this fact by simply stating that Mr. Olmstead did have the independent power to promote, suspend, hire, or discipline employees. However, such belief by Plaintiffs is obvious from their respective denial of Defendants' fact and does not assist this court in any manner. In fact, if that were all Plaintiffs were permitted to do, it would be simpler for the court if it only allowed nonmovants to admit or deny material facts without permitting them the opportunity to set forth reasons for the denials. It is often these stated reasons that assist the court in determining whether, in fact, a genuine issue of factual dispute exists. Thus, the reasons, or grounds, for a nonmovant's denial of a movant's material fact are very important in the determination of summary judgment motions.
Defendants also complain that Ms. Gaskins' response to GMF 6 and Ms. Corey's identical response to CMF 16 is too complicated and evasive for such a simple factual proposition. However, what Defendants' assert in GMF 6 and CMF 16 is not a simple, single, concise factual proposition as they would have this court believe. Rather, that fact contains many complicated propositions that might rightly be classified as legal argument rather than factual statements. For instance, by stating that Mr. Olmstead's did not have the "power" to do certain things at Vencor, Defendants are asserting that Mr. Olmstead did not have the authority to do those things. And, whether an individual has the authority to act in a certain manner is a complicated legal conclusion. Mr. Olmstead may not have had express authority, but he may have had implied authority, or he may have possessed apparent authority. Thus, by asserting that Mr. Olmstead did not have the authority to promote, hire, suspend or discipline employees, Defendants are really submitting a highly technical legal conclusion in the guise of a simple, factual proposition. And, this conclusion is reached saying nothing of Defendants' inclusion of four, rather than one, `powers' that Mr. Olmstead did not have in a single assertion. The court suggests that a simple, single, factual proposition would be akin to the following: During his employment at Vencor, Mr. Olmstead never hired a single employee; or Ms. Euler, Mr. Olmstead's supervisor, did not give him the express authority to hire employees. If those were the facts with which Plaintiffs were expected to respond, the court would expect simple and concise sentences with, of course, citation to relevant supporting authority. However, Plaintiffs, although presented with a number of facts similar to what the court has suggested above, were not presented with this type of material fact in every case. It is no wonder that they felt compelled to respond in as detailed a manner as they did.
Second, Defendants complain that Plaintiffs' AMFs fail to comply with Local Rule 56.1(f) as they do not set forth single factual propositions in concise sentences supported by admissible evidence, and this failure "serves to further obfuscate `a clear picture of the facts.'" (Defs.' Reply Br. at 5 (quoting Pike v. Caldera, 188 F.R.D. 519, 525 (S.D. Ind. 1999)). Defendants suggest that as result of Plaintiffs' violations, the court accept Defendants' Statements of Material Facts as undisputed and, thus, grant summary judgment in their favor. Defendants' argument here could be rightly classified as desperate.
Defendants do not set forth a single example of an AMF that they claim violates Local Rule 56.1(f). Rather, Defendants argue that the "majority" of Plaintiffs' AMFs fail in this regard. (Defs.' Reply Br. at 4.) As Defendants do not complain about any AMF in particular, the court will not address particular AMFs here. To do so would require the court to search through Plaintiffs' AMFs without Defendants' assistance and discuss specific facts which the court believes to violate Local Rule 56.1(f). Or, of course, the court could pick out AMFs at random and discuss whether they violate Local Rule 56.1(f). The court thinks the more sensible approach would be to address Defendants' specific objections to any particular AMF only after the court determines that the particular fact is material and deserves inclusion in the Facts section of this Entry. The court will, however, take the time here to comment on one aspect of Defendants' argument.
Defendants insist that Plaintiffs' AMFs, including the manner in which they are presented, are an attempt to prevent this court from achieving a clear picture of the facts. Plaintiffs, however, are not attempting to cloud this court's picture of the facts. Rather, it appears to the court that Defendants have done just about everything possible in a fruitless attempt to hinder this court's consideration of the facts in a light most favorable to Plaintiffs, this includes making numerous meritless objections to over half of the AMFs submitted by Plaintiffs. The court gets the distinct impression from these voluminous objections that Defendants have filed to Plaintiffs' evidentiary submissions that Defendants would like nothing more than to cloud this court's picture of the facts. However, those objections have had just the opposite effect. Considering those objections as the court has done, has allowed this court the opportunity to grow intimately familiar with the facts of this case. Thus, it can be said that any fault Defendants find with Plaintiffs' AMFs in this regard is harmless.
IV. FACTS
A. Background
The events which led to this lawsuit occurred between December 1997 and April 1998 and included at least, Donna Gaskins, Elizabeth Corey and John Olmstead. All three were employed at Vencor Hospital — Indianapolis South ("Vencor"). Ms. Gaskins was employed at Vencor until she was terminated on April 21, 1998. During the time period at issue, Ms. Gaskins was employed as the Chief Technologist of Radiology. Ms. Corey was employed as a respiratory therapist until March 25, 1998, on which date she resigned her employment. Mr. Olmstead, during the time period in question, was employed by Vencor as the respiratory manager. His official title in that capacity was Respiratory/Radiology Department Director, or Director of Respiratory Services. (AMF 5.) Mr. Olmstead's employment relationship with Vencor ceased in June 1999. (GMF 3.)
During the summer of 1997, Vencor, Inc., purchased Transitional Hospitals Corp., and Transitional Hospital Corp. Indianapolis Hospital ("THC") became Vencor Hospital — Indianapolis South.
Mr. Olmstead assumed his managerial position in September 1997, replacing Mike wens. AMF 10.) Mr. Owens was employed by THC, and later Vencor. (AMF 13.) Mr. Owens hired Ms. Gaskins, and negotiated her departure from her previous employer. (AMF 12.) Additionally, Mr. Owens hired and evaluated Ms Corey. (AMF 1, 3.) Mr. Olmstead reported to Mona Euler. (GMF 9.) Ms. Euler, in the summer of 1997, was promoted to Administrative Assistant for Clinical Operations and in that capacity supervised all of the clinical operations and departments. (GMF 7,8.) Ms. Euler, together with Tom Theroult, Vencor's Administrator/CEO, was responsible for authorizing promotions, new hires, discipline and terminations, and for investigating complaints of harassment. (GMF 10, 11.)
Defendants object to the testimony cited in support of AMF 10 on the ground that it lacks foundation. It does not. Ms. Gaskins, because she worked with both Mr. Owens and Mr. Olmstead and was therefore in a position to perceive these facts, is competent to testify that her boss, Mr. Owens, was replaced by Mr. Olmstead and that Mr. Olmstead held the same title that Mr. Owens once held. Thus, Ms. Gaskins does have sufficient personal knowledge of these matters to satisfy Federal Rule of Evidence 602.
Defendants object to AMF 12 on the ground that it is irrelevant and lacks foundation. This fact is not irrelevant. Indeed, it is directly relevant to the issue regarding Mr. Olmstead's supervisor status. (See discussion below.) Next, Ms. Gaskins certainly has personal knowledge of who hired her, and her testimony is clear that it was Mr. Owens who did so. (Gaskins Dep. Vol. 1 at 83:15-16, 23.) Whether Ms. Gaskins' testimony is technically correct is not at issue now. Rather, whether Ms. Gaskins has personal knowledge of the matter upon which she wishes to testify is the issue currently before the court. And, it is clear that Ms. Gaskins does have personal knowledge of this matter. As an aside, the court notes that Defendants do not deny that Mr. Owens hired Ms. Gaskins, but only object to the court's consideration of this fact on evidentiary grounds.
Mr. Olmstead was part of the Vencor management team. (GMF 4, AMF 28.) Mr. Olmstead interviewed job applicants. (AMF 35.) Mr. Olmstead made requests for merit increases for employees, which neither Ms. Euler nor Mr. Theroult overruled. (AMF 34.)
Defendants object to the testimony cited in support of AMF 28 on the grounds that it is inadmissible hearsay and lacks foundation. Defendants' objections are overruled. First, this testimony is not inadmissible hearsay. Ms. Gaskins testified that Mr. Olmstead told her that he was part of the management team. (Gaskins Dep. Vol. I at 26:19-23.) Mr. Olmstead's statement is an admission of a party opponent. Likewise, by testifying that Mr. Olmstead told her that he was part of the management team, Ms. Gaskins has demonstrated that she has personal knowledge that Mr. Olmstead held himself out to be a member of the management team. Also, the court notes that Defendants do not deny that Mr. Olmstead was a manager. (GMF 4.)
Mr. Olmstead made requests for supplies and equipment which were never denied. (AMF 36.) Ms. Euler, before signing off on promotions, hiring or termination forms, usually spoke with managers such as Mr. Olmstead. (AMF 33.) Mr. Theroult, who also had to sign such forms, had the option of speaking to managers before doing so. (AMF 33.) Mr. Olmstead evaluated Ms. Gaskins and promoted her from Radiologic Technologist to Chief Technologist. (AMF 14.) However, Ms. Gaskins could not make major decisions without Mr. Olmstead's approval. (AMF 21.) Mr. Olmstead also supervised and evaluated Ms. Corey. (AMF 4.)
Defendants object to this AMF on the grounds that it assumes a fact not in evidence, i.e., that Ms. Gaskins was promoted, and lacks foundation. Defendants objection is overruled. Ms. Gaskins testified that Mr. Olmstead promoted her, and by doing so has introduced into evidence the fact that she was promoted. (Gaskins Dep. Vol. I at 150:7-8, 152:1-13.) At trial, of course, Defendants will be able to contest the fact that Ms. Gaskins was promoted. However, at this stage the court will resolve any doubt as to the existence of any fact in favor of Ms. Gaskins, and the court will not determine credibility. (See discussion below.) Therefore, for the purpose of deciding this motion, the court will assume that Ms. Gaskins was promoted. Additionally, Ms. Gaskins is certainly competent to testify on whether or not she was promoted and who evaluated her. As an aside, the court notes that while Defendants dispute that Ms. Gaskins was promoted, they do recognize that "Ms. Gaskins eventually became the Chief Technologist of Radiology[.]" (GMF 2.)
Defendants object to AMF 21 on the ground that the cited deposition testimony lacks foundation. This objection is overruled. Ms. Gaskins has personal knowledge as to what she was able to do without Mr. Olmstead's approval and what required his approval. Again, whether Ms. Gaskins' factual assertion is ultimately correct may be disputed, but such dispute is a matter to be decided by the finder of fact after being given the opportunity to make credibility determinations. As discussed below, at the summary judgment stage, this court will consider the facts in the light most favorable to the nonmovant.
B. Facts Regarding Gaskins' Claims
Ms. Gaskins alleges that beginning on December 30 or 31, 1997, and continuing into April 1998, she was subjected to sexual harassment by Mr. Olmstead. (GMF 35.) Ms. Gaskins acknowledges that, at first, her relationship with Mr. Olmstead was a consensual affair. (GMF 46, 51.) In fact, there was a point in time when Ms. Gaskins was in love with Mr. Olmstead. (Gaskins Dep. Vol. I at 135:15-22.) She engaged in consensual sex with Mr. Olmstead at her home and wrote him sexually explicit letters that were filled with expressions of love. (GMF 51, 53.) She and Mr. Olmstead even discussed the possibility of him divorcing his wife. (GMF 50.) It appears that the relationship began to sour because by February 1998, Mr. Olmstead was threatening to have Ms. Gaskins fired if she refused to have sex with him. (Gaskins Dep. Vol. I at 23:10-22.)
Defendants object to this testimony on the grounds that it is inadmissible hearsay and lacks foundation. This objection is without merit. Admissions of Mr. Olmstead are admissible as admissions by a party-opponent and Ms. Gaskins has personal knowledge of what occurred between her and Mr. Olmstead.
Ms. Gaskins alleges egregious sexual behavior by Mr. Olmstead. For instance, following Mr. Olmstead's refusal to help Ms. Gaskins with a patient, Mr. Olmstead demanded that Ms. Gaskins perform oral sex on him. (Gaskin Aff. ¶ 13, Ex. C.) Ms. Gaskins described the incident as follows:
He got furious and said again Why in the hell should I help you if you won't do nothing for me, (sex). This was probably one of our worst fights. Karen came in while we were in the patients [sic] room. I said, What do you want. She said, Well nothing from you and asked John something and left. Me and John went back to the darkroom and fought more. He made it clear if I didn't put out this was the way it would be. He threatened to fire me again if I opened my mouth. I cried again and gave in again. I gave him his oral sex. This is what I was talking about in that letter about crying and sobbing and gagging while I sucked his dick. I was gagging partly from crying and snot running down the back of my throat and from him holding on to my head and pushing it forward so his penis was gagging me. By the time it was over I just wanted to crawl into a hole and die.
(Id.) Mr. Olmstead also demanded that Ms. Gaskins engage in sex with him in exchange for job related equipment, including a lead apron. (Gaskins Aff. ¶ 9.) Mr. Olmstead punished Ms. Gaskins by refusing to grant her work related requests if she would not have sex with him. (AMF 52 (citing Gaskins Aff. ¶ 13, Ex. C.)) Mr. Olmstead, on two occasions made Ms. Gaskins bleed and would not stop touching her when she told him to. (Gaskins Dep. Vol. II at 89:10-90:20.) Ms. Gaskins did not consent to having sex with Mr. Olmstead at work. (AMF 51.)
Defendants objections to AMF 52 are rejected for the same reasons that its motion to strike paragraph 13 of Ms. Gaskins' affidavit was denied. (See discussion above at pages 14-15.)
In approximately February 1998, Ms. Corey overheard an incident in the darkroom during which Mr. Olmstead pushed Ms. Gaskins against a wall as she tried to thwart his sexual advances. (Corey Dep. at 197:2-13; AMF 44.) After this incident, Ms. Gaskins told Ms. Corey of the affair between Ms. Gaskins and Mr. Olmstead. (GMF 48.) Ms. Corey suggested that Ms. Gaskins report the relationship to management. (GMF 58, 59.)
Defendants object to this AMF on the grounds that it assumes facts not in evidence and contains inadmissible hearsay, and that the testimony cited in support lacks foundation. As indicated by the court's phrasing of this Fact above and its citation to Ms. Corey's deposition testimony, the court did not rely on the inadmissible hearsay contained in AMF 44. Specifically, the court did not rely on Ms. Gaskins' deposition testimony for support of the proposition that Ms. Corey overheard this darkroom episode. The remaining grounds for Defendants' objection are rejected. Ms. Gaskins has personal knowledge of this incident and the facts of this incident are in evidence — Ms. Gaskins testifies to these facts in her deposition.
However, when Ms. Gaskins told Mr. Olmstead that she would report his conduct to Ms. Euler, Mr. Olmstead threatened her with loss of her job. (AMF 48.)
Defendants object to AMF 48 on the grounds that the testimony cited in support is inadmissible hearsay and lacks foundation. It is not inadmissible hearsay as statements by Mr. Olmstead, a party-opponent, are admissible and Mr. Gaskins has personal knowledge of these threats.
In March 1998, Ms. Gaskins had decided that the abuse needed to stop. (AMF 60; Gaskins' Dep. Vol. I at 138:1-21.) She told Mr. Olmstead that she was pregnant. (GMF 60.) Although in fact she was not pregnant, Mr. Olmstead did not harass her as severely after she told him this false information. (GMF 60; AMF 45.) After she found out that she was not pregnant, she continued to use pregnancy as a defense to keep Mr. Olmstead away from her. (AMF 45.)
The first sentence of AMF 60 is the only portion of that AMF that the court considered. Defendants object to AMF 60 on the grounds that its assumes facts not in evidence and is argument. Additionally, Defendants object to the testimony cited in support of AMF 60 on the grounds that it lacks foundation and is inadmissible opinion testimony. AMF 60 is not narrowly tailored and contains more than one factual proposition. The court assumes that Defendants objections to AMF 60 are directed toward the portions of AMF 60 not considered by the court. However, to the extent that the court's assumption is in error and Defendants' objections are aimed at the first sentence of AMF 60, those objections are overruled. This fact does not assume a fact not in evidence, nor is it argumentative. Also, the deposition testimony cited in support of this proposition does not lack foundation, nor is it inadmissible opinion testimony.
Defendants object to AMF 45 of the grounds that it assumes facts not in evidence and that the testimony cited in support lacks foundation. The court is at a loss to understand how Ms. Gaskins could not have personal knowledge of these events. Likewise, this fact does not assume a fact not in evidence as Ms. Gaskins' deposition testimony concerning these events is admissible. Defendants' objections are overruled.
On the evening of Friday, April 10, 1998, after Mr. Olmstead brought his wife to the office, Ms. Gaskins left the following message on Mr. Olmstead's home answering machine:
John, make sure you got my message. I want your resignation in Mona's office by noon Monday. You had an affair with me for four months, get [sic] me pregnant so I am five weeks pregnant now, and yes, I have known since last Saturday, when I took an at-home pregnancy test, and then you bring your wife in there tonight. That does it. I am not putting up with it. I never want to see your face again. I want your resignation. Give them any reason you want. I don't care. Tell them you are sick and you can't put out another month as manager, but you are going to get out of there.
(GMF 61.) Phone records for April 10 reflect three phone calls made from Mr. Olmstead's house to Ms. Gaskins — one call for five minutes, one for eleven minutes and one for thirty minutes. (AMF 63.) Ms. Gaskins and Mr. Olmstead on this evening struck a deal under which Mr. Olmstead would resign his employment by noon on the 13th in exchange for Ms. Gaskins denying the content of her phone message to Mr. Olmstead's wife, something that Ms. Gaskins did in fact do. (AMF 61; GMF 62.) On the morning of April 11, Mr. Olmstead again phoned Ms. Gaskins, telling her that he intended to remove himself as manager of the Radiology Department, but he would not resign his position as Ms. Gaskins had demanded. (AMF 64.)
Defendants object to this AMF on the grounds that it assumes facts not in evidence and the testimony cited in support lacks foundation and is inadmissible hearsay. Ms. Gaskins, as a participant in the conversations with Mr. Olmstead, can certainly testify to this deal, and her cited deposition testimony is perfectly admissible. Defendants' objections are meritless and are overruled.
Also on April 11, Mr. Olmstead phoned Ms. Euler and reported the message he had received from Ms. Gaskins on the 10th. (GMF 64.) Ms. Euler also talked to Andrea Olmstead, John Olmstead's wife, who was very upset about the call. (GMF 65.) Mr. Olmstead denied Ms. Gaskins' allegations and told Ms Euler that he was afraid of what Ms. Gaskins was attempting to do to his career, marriage and family. (GMF 66.) Ms. Euler instructed Mr. Olmstead not to contact Ms. Gaskins and advised Mr. Olmstead that she would begin an investigation. (GMF 67.) Ms. Euler then phoned Mr. Theroult and informed him of the situation. (GMF 68.)
On Monday, April 13, Ms. Euler informed Human Resources Assistant Rhonda Napier that a complaint had been lodged against Ms. Gaskins and asked her to be present for a meeting with Ms. Gaskins. (GMF 69, 70.) Mr. Olmstead, at Ms. Euler's direction, arranged for a temporary employee to cover Ms. Gaskins' job, possibly doing so even before Ms. Euler met with Ms. Gaskins. (AMF 68.) A meeting with Ms. Gaskins was held in Ms. Euler's office, during which Ms. Napier took notes. (GMF 70.) During this meeting, Ms. Euler notified Ms. Gaskins that her employment was being suspended with pay pending the outcome of an investigation that Ms. Euler was conducting based on Mr. Olmstead's complaint. (GMF 71.) For the first time, Ms. Gaskins indicated to Ms. Euler that she desired to lodge a complaint against Mr. Olmstead. (GMF 72.) Ms. Gaskins then told Ms. Euler about Mr. Olmstead forcing himself upon her in a sexual nature and that she had loved him in the past. (AMF 67; GMF 74.) Ms. Euler asked Ms. Gaskins to put her complaint in writing. (GMF 74.) Ms. Gaskins offered to give Ms. Euler phone numbers of people she had told about the harassment, however Ms. Euler did not take the numbers. (AMF 69.)
Defendants object to this AMF on the grounds that it assumes facts not in evidence and that the testimony cited in support is inadmissible hearsay and lacks foundation. Ms. Euler, in her deposition, testified that a "temp agency" covered for Ms. Gaskins. She "believed" that Mr. Olmstead made the arrangements and she is "sure" that she gave him authority to do so. Finally, she testified that she does not remember whether she gave Mr. Olmstead this authority before the meeting on the 13th, but admits that "[i]t could have been" before the meeting. (Euler Dep. at 168:8-23.) This testimony is admissible and is support for AMF 68. To the extent that this AMF relied on inadmissible hearsay, it was not considered by the court. The court, in drafting the Fact above, only relied upon facts and reasonable inferences drawn therefrom contained in Ms. Euler's deposition. Accordingly, Defendants' objections are overruled.
Ms. Gaskins had not previously complained to Ms. Euler because Mr. Olmstead threatened to fire her and she wanted to keep her job, she was a single mother, she was humiliated and did not want anyone to know what had happened, and she perceived management as a team that would stick together. (GMF 57.)
Although Ms. Gaskins saw Ms. Euler on the morning of the 13th as she was walking down the hall, Ms. Gaskins did not complain to Ms. Euler of her problems with Mr. Olmstead until the meeting was held. (GMF 69.) Because Ms. Gaskins did not make a complaint against Mr. Olmstead during this initial hallway encounter, Ms. Gaskins' credibility was limited in Ms. Euler's mind. (GMF 84.) Ms. Gaskins did not initially complain on the morning of the 13th because of the deal struck with Mr. Olmstead on the 10th. (AMF 66.) Ms. Gaskins, however, was suspended and escorted out of the building before noon. (AMF 66.)
Defendants object to AMF 66 on the grounds that it assumes facts not in evidence and is argument, and that the testimony cited in support is inadmissible hearsay, irrelevant and lacks foundation. This fact is not argument and it does not assume facts not in evidence — Ms. Gaskins testifies to these facts in her deposition and her deposition testimony is admissible as it is not based on inadmissible hearsay, it is not irrelevant and Ms. Gaskins has personal knowledge of the matters on which she testifies.
Ms. Euler questioned Mr. Olmstead about his relationship with Ms. Gaskins, but did not take notes. (GMF 79; AMF 99.) Mr. Olmstead stated that Ms. Gaskins' claims were false. (GMF 80.) Per Ms. Euler's request, Mr. Olmstead provided written statements from both him and his wife in response to Ms. Gaskins' claims. (GMF 81.) While Ms. Euler gave Mr. Olmstead a copy of Ms. Gaskins' statement for the purpose of replying, she did not give Mr. Olmstead's documentation to Ms. Gaskins. (AMF 81.) Additionally, Mr. Olmstead was in contact with Vencor's counsel during the investigation. (AMF 81.) Ms. Euler did not contact Ms. Gaskins during the investigation. (AMF 80.)
Defendants object to AMF 80 on the grounds that it is argument and that the testimony cited in support lacks foundation. The portion of this AMF relied upon by the court is not argument and the testimony cited in support does not lack foundation. Ms. Gaskins is certainly qualified to testify whether or not Ms. Euler contacted her during the investigation.
Additionally, Ms. Euler talked with and obtained written statements from Jim Lichauer, Julie Cummings and Patsy Booher, all of whom informed Ms. Euler that they had not witnessed any appropriate behavior between Mr. Olmstead and Ms. Gaskins. (GMF 76.) Also, Karen Phillips, a respiratory therapist, and Tony Hirsch, the Clinical Coordinator for the Respiratory Therapy Department, denied witnessing any inappropriate behavior by Mr. Olmstead. (GMF 78; CMF 25.) Although, Ms. Phillips and Mr. Hirsch did not work in radiology with Ms. Gaskins and, thus, did not have occasion to go into the darkroom radiology area at Vencor. (Gaskins Aff. ¶ 14.) Ms. Euler, however, did not interview Martin Bielawski who, according to both Ms. Gaskins' and Mr. Olmstead's statements, observed them arguing. (AMF 96.) Moreover, Ms. Euler did not talk to "Mike from maintenance" who, according to Ms. Gaskins' statement, knocked on the door while Ms. Gaskins and Mr. Olmstead were engaged in sexual contact. (AMF 97.)
On April 21, 1998, Ms. Euler sent Ms. Gaskins a letter advising Ms. Gaskins that her employment at Vencor was terminated as of that date. (GMF 90; Euler Aff. ¶ 22, Ex. F.) In the letter, Ms. Euler notified Ms. Gaskins that after thorough investigations, Vencor was able to substantiate Mr. Olmstead's claims while Ms. Gaskins' claims were not substantiated. (Euler Aff. ¶ 22, Ex. F.) As a result, Ms. Gaskins was discharged for "unprofessional and inappropriate conduct in violation of company policy." (GMF 90; Euler Aff. ¶ 22, Ex. F.) Ms. Gaskins was never given any other reason for her termination. (GMF 91.) However, on April 11, 1998, Ms. Euler had written a memorandum in which she referred to emotional outbursts by Ms. Gaskins because she thought it was important. (AMF 89.) Mr. Olmstead was never disciplined over the "Gaskins incident." (AMF 105.)
Defendants object to AMF 89 on the grounds that it is argumentative. While, as written, this AMF may be argumentative, the underlying support for this AMF is not argumentative. In phrasing this Fact, the court relied on this underlying support and, thus, even if the AMF was somewhat argumentative, what the court draws from the underlying record is fact, not argument.
C. Facts Regarding Corey's Claims
Ms. Corey alleges that throughout her employment Mr. Olmstead routinely called her into his office, rubbed her shoulders and made her feel uncomfortable. (CMF 17.) During the approximately seven months that Ms. Corey worked with Mr. Olmstead, the shoulder touching occurred approximately 75% of the time Ms. Corey was in Mr. Olmstead's office, which was approximately once per week. (CMF 20.) Ms. Corey, however, never refused Mr. Olmstead's requests for her to enter his office, nor did she confront him and tell him to stop the behavior that she found offensive. (CMF 24.) Mr. Olmstead also on occasion talked about his sex life in Ms. Corey's presence. (CMF 18.) When Mr. Olmstead's conversation turned personal, Ms. Corey would steer the conversation in a different direction. (CMF 24.) Finally, Ms. Gaskins told Ms. Corey that Mr. Olmstead had commented to Ms. Gaskins that he would like to see Ms. Corey and Ms. Gaskins engage in lesbian sex. (CMF 21.) Ms. Corey told Ms. Gaskins that Mr. Olmstead should not say such things and that Ms. Gaskins should warn Mr. Olmstead that Ms. Corey would complain to management if Mr. Olmstead did not leave her alone. (CMF 22.)
In February 1998, Ms. Gaskins told Ms. Corey about Mr. Olmstead's behavior and the relationship between them. (AMF 43; GMF 48.) Mr. Olmstead had told Ms. Gaskins that if she told anyone about their relationship, she would be fired. (Gaskins Aff. ¶ 5.) Ms. Corey wanted to report this behavior to management but refrained from doing so at Ms. Gaskins' urging. (Corey Dep. at 81:5-10; CMF 64.) Ms. Corey also repeatedly encouraged Ms. Gaskins to file a complaint with Ms. Euler. (CMF 66.) Ms. Gaskins told Mr. Olmstead that Ms. Corey knew about their relationship and had threatened to tell Ms. Euler. (Gaskins Aff. ¶ 5.) Upon receiving this news, Mr. Olmstead was visibly angry and upset. (Id.)
Defendants object to AMF 43 on the ground that the testimony cited in support of this fact is inadmissible hearsay. To the extent that the court relies on this testimony, it is not inadmissible hearsay. Ms. Gaskins can testify to what she told Ms. Corey. This testimony is not offered for the truth of the matter asserted, but rather to show that Ms. Corey was notified of Ms. Gaskins' allegations.
On March 9, while Mr. Olmstead was on vacation, Mr. Hirsch, in charge during Mr. Olmstead's absence, asked Ms. Corey to assist Ms. Phillips, a respiratory therapist, in attending to patients with tracheotomy ("trach") tubes. (CMF 25.) Ms. Corey's response to Mr. Hirsch's request is subject to great dispute. Mr. Hirsch was dissatisfied with Ms. Corey's response, and on March 18, filed a complaint against Ms. Corey accusing her of being uncooperative and shouting at him in front of a patient. (CMF 26.) Ms. Corey, however, disputes the accuracy of Mr. Hirsch's written complaint and disputes Mr. Hirsch's accusations. (AMF 119.) Ms. Phillips, contemporaneous with Mr. Hirsch's complaint, filed a written confirmation of the incident. (CMF 27.)
Defendants object to AMF 119 on the grounds that it is argumentative and that the testimony cited in support is hearsay, lacks foundation and is irrelevant. While this AMF as written is argumentative, it is neither argumentative nor irrelevant to the extent that the court relies upon it. What is clear from this AMF, and from the cited deposition testimony in support, is that Ms. Corey disputes Mr. Hirsch's complaints and accusations. Moreover, the deposition testimony relied upon by the court in articulating this Fact is not hearsay, nor does Ms. Corey lack personal knowledge of these events. Ms. Corey can certainly testify to what she did and to the events as she perceived them.
On March 16, while Mr. Olmstead was still on vacation, a nurse, Betty Scheil, walked into a patient's room, patient B, and found the patient in deep respiratory distress. (CMF 29, 33.) The patient was turning blue and was extremely short of breath. (CMF 31.) Ms. Scheil left the patient's room, entering the hallway. (CMF 35.) The events that followed are in dispute. It is not necessary for the court to set forth each sides version of these events. It is enough to state that Ms. Corey disputes Vencor's version of what happened, and Vencor iterates a different version of the events than does Ms. Corey. Upon returning from vacation on March 17, Mr. Olmstead was informed of these two incidents and was asked to investigate by Ms. Euler. (CMF 44.) As part of his investigation, Mr. Olmstead requested written statement from Mr. Hirsch and Ms. Phillips. (CMF 45.) On March 20, after interviewing Ms. Scheil, Kristina Frieje and Sandy Morningstar, Mr. Olmstead concluded that Ms. Corey refused to treat a patient. (CMF 49.) Thereafter, Mr. Olmstead advised Ms. Corey that she was suspended and told her that she would be fired if she did not resign. (AMF 6.) Indeed, Mr. Olmstead indicated in a Management Note that he intended to forward to "upper management" a "Personnel Action Request" that Ms. Corey be terminated if she rescinded her resignation. (Euler Dep. Ex. 10.) Ms. Euler, after seeing the paperwork on Ms. Corey from Mr. Olmstead's investigation, opined that Ms. Corey should be terminated immediately. (AMF 137.) Ms. Scheil was not disciplined in any respect regarding the patient B incident. (AMF 131.)
Defendants object to this AMF on the grounds that it lacks foundation and that the cited deposition testimony is misstated. This AMF does not lack foundation, nor is the cited deposition testimony misstated. Ms. Corey has introduced sufficient evidence to convince the court that she has personal knowledge regarding these matters; simply put — these things were told to her! And, the stated fact does not misstate the cited deposition testimony in any regard.
Thereafter, Ms. Corey, in a note, requested a meeting with Mr. Theroult regarding the "unfounded and untrue" allegations raised against her. (CMF 47.) On Monday, March 23, 1998, Ms. Corey, during a meeting with Mr. Theroult and Mr. Olmstead, resigned her employment. (CMF 51, 54.) During the meeting, Ms. Corey did not complain of sexual harassment by Mr. Olmstead nor did she suggest that Mr. Olmstead was retaliating against her for her complaints of sexual harassment. (CMF 53.) However, Ms. Corey did tell Mr. Theroult that she was being forced to resign and it was not because of the patient B incident. (AMF 145.) Before this incident with patient B, Ms. Corey had never been disciplined. (AMF 114.)
V. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See e.g., King v. Nat'l Human Res. Comm., Inc., 218 F.3d 719, 723 (7th Cir. 2000); FED. R. CIV. P. 56(c). The evidence must be considered in light most favorable to the non-moving party, and all doubts regarding the existence of material facts are to be resolved in favor of the nonmovant. See Ransom v. CSC Consulting, Inc., 217 F.3d 467, 468 (7th Cir. 2000); Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). It is not the role of the court to weigh the evidence or judge the credibility of witnesses in deciding a summary judgment motion. See, e.g., Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000). "The burden is on the party moving for summary judgment to demonstrate the absence of a `genuine issue as to any material fact.'" Filipovic v. K R Express Sys., Inc., 176 F.3d 390, 395 (7th Cir. 1999) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "To defeat a motion for summary judgment, the nonmoving party cannot rest on the mere allegations or denials contained in his pleadings, but must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Id. (quotation omitted).
B. Title VII Claims
Ms. Gaskins and Ms. Corey state a claim against Vencor for sex discrimination in the form of sexual harassment and retaliation.
1. Sexual Harassment
Title VII prohibits an employer from discriminating "against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a)(1). "Sexual harassment which is so `severe or pervasive as to alter the conditions of the victim's employment and creates an abusive working environment violates Title VII.'" Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (internal quotations omitted)). "In order to establish a prima facie case of hostile environment sexual harassment, a plaintiff must show that: (1) she was subjected to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical contact of a sexual nature; (2) the harassment was based on sex; (3) the sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance in creating an intimidating, hostile or offensive working environment that affected seriously the psychological well-being of the plaintiff; and (4) there is a basis for employer liability." Id. (citations omitted). Vencor maintains that Ms. Gaskins cannot establish the first and last elements of her prima facie case. With respect to Ms. Corey, Vencor maintains that the conduct complained of does not rise to the level of sexual harassment and that there is no basis for Vencor liability.
Hostile environment and quid pro quo claims are distinct. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998). "Quid pro quo harassment occurs in situations where submission to sexual demands is made a condition of tangible employment benefits." Bryson v. Chicago State Univ., 96 F.3d 912, 915 (7th Cir. 1996). Plaintiffs' Complaint does not make clear whether Plaintiffs are proceeding on a hostile environment or a quid pro quo theory or both. In its motions for summary judgment, Defendants assumed that Plaintiffs were proceeding under the hostile environment theory only. However, the following argument appears in Plaintiffs' Brief in Response: "Olmstead engaged in a classic case of quid pro quo sexual harassment by threatening Gaskins' job if she did not engage in sexual activities with him at work." (Pls.' Br. in Resp. at 23.) Defendants, in their Reply, did not address Ms. Gaskins quid pro quo theory. The court, therefore, assumes that Defendants are not moving for summary judgment on Ms. Gaskins' quid pro quo theory of sexual harassment. Accordingly, the court will only address Ms. Gaskins' hostile work environment theory. As an aside, the court notes that there is no evidence in the record that Ms. Corey is likewise pursuing a quid pro quo theory of harassment. Rather, from all of the materials in the court's possession, including her response to Defendants' motion for summary judgment, the court concludes that Ms. Corey is pursuing only a hostile work environment theory.
a. Gaskins' Sexual Harassment Claim
Vencor first maintains that Ms. Gaskins was not sexually harassed because she welcomed the conduct of which she now complains. This argument merits very little discussion. As stated above and articulated by the Seventh Circuit time and again, when deciding a motion for summary judgment the facts are to be considered in the light most favorable to the nonmovant. See, e.g., Ransom, 217 F.3d at 468. The district court does not make credibility determinations at the summary judgment stage. See, e.g., Miller, 220 F.3d at 495. Accordingly, when deciding whether a dispute over a material issue of fact exists such that summary judgment would not be proper on this claim, the court will consider the evidence submitted in light most favorable to Ms. Gaskins. From that evidence, the court is able to conclude that Ms. Gaskins would agree that at some point she and Mr. Olmstead engaged in a consensual relationship. However, the court is not able to conclude as a matter of law whether all acts of sexual intimacy between Ms. Gaskins and Mr. Olmstead were performed while that relationship endured or were consensual, as Vencor suggests. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) ("[T]he question whether particular conduct was indeed unwelcome . . . turns largely on credibility determinations committed to the trier of fact."). Considering the facts in light most favorable to Ms. Gaskins, it is clear that they were not. It is entirely possible that some sexual acts were performed after the consensual relationship ended and were not consensual acts. For those unwelcome acts, Vencor may be liable to Ms. Gaskins for sexual harassment. See Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000) ("Whether or not the initial sexual relationship was consensual, the [employer's] proffered evidence does not refute the district's court's findings [that the plaintiff was sexually harassed] after the `relationship' dissolved."). Of course, it is possible that a jury, after making credibility determinations, will conclude that the sexual acts Ms. Gaskins accuses Mr. Olmstead of committing against her will after the relationship dissolved were either committed while the relationship was ongoing, were consensual, or were both. However, such result could only be reached in this case after a finder of fact is able to judge the credibility of the witnesses, particularly Mr. Olmstead and Ms. Gaskins — something this court cannot do at the summary judgment stage.
Vencor next maintains that Ms. Gaskins cannot establish a basis for employer liability. Ms. Gaskins can satisfy this element of prime facie case is one of two ways. First, Ms. Gaskins can establish that Vencor is automatically vicariously liable for the sexually harassing conduct of "`a supervisor with immediate (or successively higher) authority over the employee.'" Id. (quoting Ellerth, 524 U.S. at 765). Or, second, Ms. Gaskins can establish that Vencor cannot meet the requirements of the affirmative defense made available to it to avoid vicarious liability.
"Vicarious liability automatically applies when the harassing supervisor is either (1) `indisputably within that class of an employer organization's officials who may be treated as the organization's proxy,' Faragher, 524 U.S. at 789, . . . or (2) `when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.' [Id. at 808.]" Johnson, 218 F.3d at 730. Vencor maintains (1) that Mr. Olmstead was neither the alter ego nor the proxy of Vencor and (2) that Mr. Olmstead's actions did not culminate in a tangible employment action with regards to Ms. Gaskins.
Vencor maintains that Mr. Olmstead, although a supervisor by title, was not the type of supervisor whose acts are imputed to Vencor as if he were effectively acting on Vencor's behalf (a "true supervisor", see Parkins, 163 F.3d at 1033). Vencor suggests that because Mr. Olmstead did not have the power to affect the terms and conditions of Ms. Gaskins' employment, he was not a true supervisor but rather a low-level supervisor ("who are equivalent to co-employees for purposes of Title VII", see id.), whose actions should not be imputed to Vencor. Ms. Gaskins, on the other hand, maintains that Mr. Olmstead was a true supervisor as defined by the Seventh Circuit.
"[T]he touchstone for determining supervisory status is the extent of authority possessed by the purported supervisor." Id. (citing Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1271 (10th Cir. 1998) (the operative question in determining supervisory status is whether the employee in question "had sufficient control over the plaintiff to be considered her supervisor . . .")). In Parkins, the Seventh Circuit addressed, "how much or what kind of authority must an individual possess to be a true supervisor." Id. The court noted, "[T]he Supreme Court has made clear that heightened liability exists in this context only because a supervisor's conduct is made possible by the `abuse of his supervisory authority,' his apparent authority, or because his supervisory position aided him in accomplishing the harassment." Id. (quoting Faragher, 524 U.S. at 802) (holding that two of plaintiff's co-employees were not true supervisors because no reasonable person could have believed that they were endowed with true supervisory authority (at 1035)); see also Place v. Abbott Labs., Inc., No. 94 C 5491, 1999 WL 301654, at *12 (N.D. Ill. Apr. 30, 1999) (citation omitted) (holding that employee's immediate supervisor was also employee's true supervisor because of his apparent authority). The court concluded, "[I]t is manifest that the essence of supervisory status is the authority to affect the terms and conditions of the victim's employment. This authority primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee. Absent an entrustment of at least some of this authority, an employee does not qualify as a supervisor for purposes of imputing liability to the employer." Parkins, 163 F.3d at 1034. Therefore, if Mr. Olmstead's had actual or apparent authority to affect the terms and conditions of Ms. Gaskins' employment such that Mr. Olmstead's supervisory status aided him in committing the harassment, then Vencor is automatically vicariously liable for Mr. Olmstead's conduct.
Actual authority is authority explicitly or implicitly bestowed to the agent by the principal. See Restatement (Second) of Agency § 7, Comment c (1957). "Apparent authority exists only to the extent it is reasonable for the third person dealing with the agent to believe that the agent is authorized." Ellerth, 524 U.S. at 759 (quoting Restatement (Second) of Agency § 8, Comment c). Of course, additionally, the third person must actually believe that the agent was authorized. See Restatement (Second) of Agency § 8, Comment c.
Apparent authority analysis is, of course, inappropriate when "a supervisor's power involves misuse of actual power, not the false impression of its existence." Ellerth, 524 U.S. at 759. However, Ms. Gaskins is entitled to proceed on either an apparent authority or actual authority theory. In other words, it is proper for Ms. Gaskins to argue that on the one hand Mr. Olmstead had actual authority to affect the terms and conditions of her employment, in which case apparent authority analysis would be inappropriate and unnecessary, but, if he did not have actual authority, then on the other hand he did have apparent authority, in which case apparent authority analysis would be appropriate. This court takes notes that the Eighth Circuit, in Todd v. Ortho Biotech, Inc., 175 F.3d 595, 598 (8th Cir. 1999), held that in Ellerth, the Supreme Court foreclosed the possibility of imposing automatic vicarious liability based on a supervisor's apparent authority. However, in a concurring opinion, Judge Richard Arnold disagreed with the majority, writing,
Maybe it's just a question of words, but if the plaintiff reasonably believed that the supervisor in this case, despite not being any longer in the direct chain of command, still possessed a substantially equivalent power to affect her career, that would be enough, in my view, for [him] to be treated as a `supervisor' within the meaning of the new rule. The Court quotes a passage from Ellerth as holding that `[a]pparent authority analysis . . . is inappropriate in this context.' When the entire paragraph in which this sentence appears is read, however, it seems that the Supreme Court was not laying down a flat rule of law. A fuller quotation from the Ellerth opinion makes this clear: In the usual case, a supervisor's harassment involves misuse of actual power, not the false impression of its existence. Apparent authority analysis therefore is inappropriate in this context.
Todd, 175 F.3d at 599-600 (internal citation omitted). Most importantly, however, this opinion by the Eighth Circuit is at odds with the Seventh Circuit's opinion in Parkins. In that case, as discussed above, the Seventh Circuit considered the co-employees' apparent authority in concluding that the co-employees were not true supervisors. Parkins, 163 F.3d at 1035 ("Moreover, no reasonable person could have believed that [the co-employees] were endowed with this supervisory authority.").
Ms. Gaskins submits a good deal of evidence from which it is possible for a reasonable jury to conclude that Mr. Olmstead had actual authority to affect the terms and conditions of her employment, thus making him a true supervisor. Mr. Olmstead evaluated Ms. Gaskins' work performance, he promoted her from Radiologic Technologist to Chief Technologist, he submitted requests for merit raises (which were never overruled by his supervisors), and he usually played a role in termination, promotion and hiring decisions.
How important a role Mr. Olmstead played in those decisions is question for the jury and could go a long way to determining whether in fact Mr. Olmstead was a true supervisor. At the end of the day, the jury may be faced with the question of whether Ms. Euler was essentially Mr. Olmstead's "cat's-paw," in which case Vencor, as a matter of law, could not escape vicarious liability. See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (holding that although personnel committee, as opposed to district manager, fired employee, the innocence of the committee members would not spare the company of liability where the committee acted as the conduit of the district manager's prejudice — "his cat's-paw").
Additionally, Ms. Gaskins presents evidence from which a reasonable jury could conclude that Mr. Olmstead possessed apparent authority. It was certainly reasonable for Ms. Gaskins to believe that Mr. Olmstead had the powers attributed to a true supervisor, and from the evidence submitted a reasonable jury could conclude that she did so believe. Mr. Olmstead replaced Mr. Owens, who had at least the power to hire, as he hired both Ms. Gaskins and Ms. Corey. Mr. Olmstead was part of the management team and had substantial control over the working environment of his employees — as stated above, some of Mr. Olmstead's powers included evaluating employees, requesting merit raises for employees, putting through requests for supplies and equipment which, significantly, were never denied, and the ability to effectuate a promotion.
Material factual issues are in dispute which weigh directly on determining whether Mr. Olmstead was a true supervisor. Considering the facts in light most favorable to Ms. Gaskins, it is possible that a reasonable jury could conclude that Mr. Olmstead had actual or apparent supervisory authority. Therefore, it is not appropriate for this court to conclude as a matter of law that Mr. Olmstead was not a true supervisor and grant summary judgment accordingly.
Because the court has concluded that a reasonable jury could find that Mr. Olmstead was Ms. Gaskins' true supervisor, it is not necessary for the court to address Vencor's second argument which is that Mr. Olmstead's actions did not culminate in a tangible employment action. It is not necessary for Ms. Gaskins to establish both that Mr. Olmstead was her true supervisor and that Mr. Olmstead's actions resulted in a tangible employment action. Rather, for vicarious liability to automatically attach, Ms. Gaskins need only prove that Mr. Olmstead was her true supervisor. Of course, if a jury concludes that Mr. Olmstead was Ms. Gaskins' supervisor, but not her true supervisor, vicarious liability would only attach automatically if Ms. Gaskins was able to prove that Mr. Olmstead's actions resulted in a tangible employment action. Without going into detail, as such is unnecessary due to the court's conclusion immediately above, the court notes that a reasonable jury could conclude that Mr. Olmstead's actions, including at least his role in the investigation regarding his claim of sexual harassment against Ms. Gaskins, which is the reason that Vencor maintains Ms. Gaskins was terminated, culminated in a tangible employment action. See generally, Shager, 913 F.2d at 405 (discussed above). Vencor next argues that it is entitled to the Ellerth affirmative defense. That defense "comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, 524 U.S. at 765. However, this defense is only available when automatic vicarious liability does not attach. See Johnson, 218 F.3d at 730. Because the court has held that a reasonable jury could conclude that automatic vicarious liability attached here, it would be inappropriate for the court to grant summary judgment based on the affirmative defense. Accordingly, the court need not take up Vencor's argument regarding the affirmative defense.
"A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761.
Note that Vencor argues that a "tangible employment action" does not exist because "Gaskins herself acknowledges that her termination was not the result of the alleged harassment; Gaskins testified that she was terminated in retaliation for reporting Olmstead's alleged conduct, not as a result of Olmstead's alleged conduct." (Defs.' Br. in Supp. at 20 (emphasis in original).) For support, Vencor cites Hill v. American General Finance, Inc., 218 F.3d 639, 645 (7th Cir. 2000). First, Vencor's summary of Ms. Gaskins' deposition testimony is inaccurate. Vencor cites the court to a portion of Ms. Gaskins' deposition where she testifies that she was fired for reporting harassment. (Gaskins Dep. Vol. 1 at 208:23-209:1; 210:14-20.) Vencor does not cite the court to any portion of Ms. Gaskins' deposition in which she testifies that her firing was not the result of harassment. From Ms. Gaskins' claims, it is clear that she is alleging that she was terminated both as a result of the harassment and as a result of reporting the harassment. Vencor does not cite the court to any case which holds that an adverse employment action cannot be the result of both the harassment and the reporting of that harassment. Hill does not hold as much. In Hill, the Seventh Circuit opined, "Although Hill claims that she suffered an adverse employment action as part of the retaliation against her, she does not argue that she suffered a tangible employment action as part of her harassment claims. In fact, in her deposition she states on several occasions that in her mind the adverse employment action was not based on either racial or sexual harassment, but rather was in retaliation for her lodging her complaint." Id. at 643. Thus, Hill is not an analogous situation to that presented here and does not go as far as Vencor suggests.
As an aside, the court notes that even if Vencor was entitled to the affirmative defense, the court, accepting the facts in a light most favorable to Ms. Gaskins, would at least be unable to conclude as a matter of law that Ms. Gaskins unreasonably failed to take advantage of any preventative or corrective opportunities provided by Vencor or to otherwise avoid harm. See Johnson, 218 F.3d at 732 (holding that a reasonable jury could conclude that the plaintiff-employee behaved reasonably in failing to report the harassment for nearly a year as the plaintiff may have been under "severe emotional and psychological stress as a result of the harassment").
b. Corey's Sexual Harassment Claim
Ms. Corey's prima facie case of sexual harassment is much more difficult than is Ms. Gaskins. Ms. Corey maintains that she has established an actionable hostile work environment claim because she suffered a series of events that together created a hostile work environment. The events that she complains of include: (1) Mr. Olmstead's routine of calling her into his office and touching her shoulders, (2) Mr. Olmstead's conversation about his sexual life, including how his wife deprived him of sex, (3) Mr. Olmstead's remark to Ms. Gaskins concerning lesbian sex involving Ms. Gaskins and Ms. Corey, and (4) Mr. Olmstead's harassment of Ms. Gaskins in the darkroom which Ms. Corey witnessed and Ms. Corey's awareness of Mr. Olmstead's abuse of Ms. Gaskins. Vencor argues that even if this alleged conduct by Mr. Olmstead were true, the conduct was not so severe as to rise to the level required to create a hostile work environment.
Sexual harassment, in order to be actionable, "must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Meritor Sav. Bank, 477 U.S. at 67 (quotation omitted). "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). "[W]hether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
The conduct to which Ms. Corey complains did not create a hostile environment, and, thus, Vencor is entitled to judgment as a matter of law. A reasonable jury could not conclude from an objective viewpoint that Mr. Olmstead's actions, considered in their totality, were sufficiently severe or pervasive as to create an abusive working environment. See Faragher, 524 U.S. at 788 ("We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment[.]") (citations omitted).
First, the offensive touching of which Ms. Corey complains was not so severe as to create a hostile environment. See Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 706-08 (7th Cir. 1995) (rejecting plaintiff-employee's hostile environment claim after concluding that the company's president's conduct, which included rubbing his shoeless foot against plaintiff's leg during a company meeting and continuing despite her requests that he stop, grabbing her buttocks, and asking her to accompany him for either drinks or dinner on more than one occasion, did not "poison the workplace"); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993) (affirming district court's grant of summary judgment in favor of employer because supervisor's conduct, including asking plaintiff-employee for dates, calling her a "dumb blond," placing his hands on her shoulders several times, placing "I love you" signs in her work area, and attempting to kiss her in a bar, did not "meet the standard for actionable sexual harassment"). Moreover, there is no evidence from which a reasonable jury could conclude that this conduct was of a sexual nature. Next, the only sexually offense utterance of which Ms. Corey complains is Mr. Olmstead's "lesbian sex" remark to Ms. Gaskins which was reiterated to her, not by Mr. Olmstead, but by Ms. Gaskins. While offensive and crude, the severity of this comment, coupled with the fact that it was transmitted to Ms. Corey second-hand, lead the court to conclude that this is not actionable sexual harassment. See Savino v. C.P. Hall Co., 199 F.3d 925, 933 (7th Cir. 1999) ("[T]he fact that a plaintiff merely heard through the grapevine that her supervisor once or twice referred to her in derogatory terms is not actionable sexual harassment.") (citing Faragher, 524 U.S. at 788 (offhand comments and isolated incidents do not rise to the level of actionable harassment unless they are particularly egregious); Cowan v. Prudential Ins. Co. of Am., 141 F.3d 751, 758 (7th Cir. 1998) (the impact of second-hand harassment is not as great as harassment directed at the plaintiff)). Likewise, Ms. Corey's overhearing of Mr. Olmstead and Ms. Gaskins engaging in sexual relations and her general knowledge of Mr. Olmstead's harassment of Ms. Gaskins was not severe or pervasive as to create an abusive or hostile work environment. Finally, Mr. Olmstead's conversation about his own sexual life, even when added together with the other allegations of harassment, did not create a hostile or abusive environment. Ms. Corey admits that when Mr. Olmstead began such conversation she would simply steer the conversation in a different direction. She does not allege that Mr. Olmstead, once Ms. Corey changed the subject, insisted on that topic of conversation, nor does she allege that Mr. Olmstead ever asked her questions about her sexual life or requested that she discuss that subject at all. While Mr. Olmstead may not have chosen the most dignified topic over which to converse, his comments in this regard did not alter the conditions of Ms. Corey's employment such that a hostile environment could be found to have existed.
Ms. Corey relies on Gordon v. Southern Bells, Inc., 67 F. Supp.2d 966 (S.D. Ind. 1999) (Barker, J.), as support for her argument that Mr. Olmstead's conduct amounted to sexual harassment. That case, however, is distinguishable from the present circumstances. In that case, the employee, Gordon, claimed that she was repeatedly subjected to "unwanted sexual advances" and "inappropriate sexual comments" by a supervisor and co-worker, including: being demanded to remove her bra; being pressured to discuss her sexual fantasies and fetishes; being told she had a "nice ass" and "nice legs," and being called "hey gorgeous"; being subjected to "repeated sexual advances" and being repeatedly asked out (presumably for dates); and being physically intimidated. Id. at 979. The court concluded that these acts, considered in their totality, "were sufficiently severe and pervasive that a reasonable person could find the environment hostile and abusive." Id. However, the court also recognized as true, "that relatively isolated instances of non-severe misconduct will not support a hostile environment claim." Id. (citing Saxton v. Am. Tel. Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993)). The conduct alleged here falls into the latter category as opposed to the former. As discussed above, Ms. Corey does not allege that Mr. Olmstead ever made any sexual advances toward her, does not allege that Mr. Olmstead ever made any sexual comments or innuendos directly to her, does not allege that Mr. Olmstead physically intimidated or humiliated her, and has not offered any evidence from which a reasonable jury could conclude that Mr. Olmstead's touching of her shoulders was sexual in nature. In fact, Ms. Corey, although claiming that such touching made her feel uncomfortable, admits that she never asked Mr. Olmstead to cease such behavior. See generally, Koelsch, 46 F.3d at 708 (holding that Title VII is not directed against unpleasantness in the employment environment) (quotation omitted). All in all, this court concludes as a matter of law that Ms. Corey was not subjected to a hostile work environment.
2. Retaliation
"Title VII prohibits retaliation against an employee who has engaged in activity protected by the act." Johnson, 218 F.3d at 732 (citing 42 U.S.C. § 2000e-3(a)). 42 U.S.C. § 2000e-3(a) makes it unlawful "for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." To make out a prima facie case of retaliation, a plaintiff must establish that:
"(1) she engaged in statutorily protected expression; (2) her employer took adverse action against her; and (3) the protected expression and the adverse action are causally linked." Johnson, 218 F.3d at 732 (citations omitted). Once a plaintiff establishes a prima facie case, the burden then shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for the plaintiff's discharge. See id. (citation omitted). The plaintiff, however, "bears the ultimate burden of persuasion that the [defendant's] proffered reason is merely a pretext for discrimination." Id. (citation omitted). Vencor maintains that Ms. Gaskins cannot establish a prima facie case of retaliation in that she did not engage in statutorily protected expression. Moreover, Vencor maintains that even if Ms. Gaskins is able to establish a prima facie case, she cannot demonstrate that Vencor's stated reason for her discharge was a pretext for discrimination. With respect to Ms. Corey, Vencor argues that she cannot establish any elements of her prima facie case and, in any event, she cannot demonstrate that Vencor's stated reason for her discharge was pretext.
In its Reply Brief, Vencor asserts for the first time that Ms. Gaskins does not have evidence of a causal link between her termination and her complaints of sexual harassment, which is the third requirement of her prima facie case. Because Vencor raises this argument for the first time in it's Reply Brief and because the court will not consider new arguments raised in reply as the plaintiff does not have the opportunity to respond to such arguments, the court will not address Vencor's argument regarding the third element of Ms. Gaskins' prima facie case. See Hall v. Cropmate, 887 F. Supp. 1193, 1198-99 (S.D. Ind. 1995) (holding that in a motion for summary judgment "[i]t is well established that new arguments may not be raised first in a reply brief — a party must state all of its reasons in support of a motion the first time around") (citations omitted). The court does note that Ms. Gaskins addresses the causal link requirement in her Brief in Response, despite Vencor's failure to raise the issue in its Brief in Support, although she does so in conclusory fashion, making very little argument. It is reasonable to suppose that if Ms. Gaskins believed this aspect of her prima facie case to be in doubt, she would have responded accordingly. Because Ms. Gaskins' `argument' in this regard was very brief and conclusory, and was not in response to an argument made by Vencor, the court does not believe that Ms. Gaskins was properly afforded an opportunity to respond to Vencor's argument regarding the causal link requirement and, accordingly, will not consider that argument despite Ms. Gaskins very brief discussion of that issue.
a. Gaskins' Retaliation Claim
Vencor submits that because Ms. Gaskins complained of sexual harassment by Mr. Olmstead after Mr. Olmstead made his charge of sexual harassment against Ms. Gaskins, Ms. Gaskins "contention that she engaged in statutorily protected activity is suspect." (Defs.' Br. in Supp. at 24.) Vencor, wisely so, does not spend much time arguing this position. In fact, other than stating its bare bones argument, Vencor cites no support for its position. The fact that Ms. Gaskins did not report her charges of sexual harassment to Ms. Euler until after Mr. Olmstead reported his charges is of no consequence. Ms. Gaskins, by reporting sexual harassment, engaged in statutorily protected activity. Thus, Ms. Gaskins has met her burden to establish a prima facie case.
Vencor cites Hetreed v. Allstate Insurance Co., No. 96 C 2021, 1999 WL 311728, at *5 (N.D. Ill. May 12, 1999), for the proposition that "knowledge of a sexual relationship between two managers is not the same as actual knowledge of sexual harassment." The court is at a loss to understand how this supports Vencor's argument.
Clearly, a question of fact exists as to whether Vencor's proffered reason for Ms. Gaskins' termination was merely a pretext for retaliation. Exactly what role Mr. Olmstead played in Vencor's decision to terminate Ms. Gaskins is hotly disputed. Vencor claims that Mr. Olmstead had no input into this decision, while Ms. Gaskins maintains that Mr. Olmstead played an intimate role in the investigation which led to her termination. Ms. Gaskins argues that Mr. Olmstead, acting with a discriminatory purpose, provided important input to Ms. Euler which ultimately affected Vencor's decision. Importantly, Ms. Gaskins has come forward with facts that support her assertion. In such cases, the Seventh Circuit has instructed that summary judgment is improper. See Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1459 (7th Cir. 1994) ("Summary judgment generally is improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action.") (citations omitted).
The court recognizes that the Seventh Circuit articulated this principal of law while discussing the third element of the plaintiff's prima facie case, rather than during its discussion of pretext. However, that is without consequence here, as the Supreme Court has instructed that "the trier of fact may . . . consider the evidence establishing the plaintiff's prima facie case and inferences properly drawn therefrom on the issue of whether the defendant's explanation is pretextual." Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000) (internal citations omitted).
Ms. Gaskins alleges facts that if believed would surely allow a reasonable jury to conclude that Mr. Olmstead's participation in the termination decision introduced a "discriminatory animus" into Vencor's decision, making the stated reason for her termination false. Id. at 1460. From the serious incidents of harassment that Ms. Gaskins alleged occurred and from Ms. Gaskins' previous threats to report Mr. Olmstead's conduct to Ms. Euler, it would not be unreasonable for a jury to infer that Mr. Olmstead knew that after he lodged a sexual harassment complaint against Ms. Gaskins, she would attempt to `set the record straight' by complaining about his sexual harassment of her. Once she did complain, so Ms. Gaskins' argument goes, Mr. Olmstead would use his influence with Ms. Euler (of which a reasonable jury could infer he had a great deal) to get Ms. Gaskins terminated so as to trump the problems that he thought he might otherwise be facing. This reasoning is supported by Ms. Gaskins' allegation that Mr. Olmstead threatened Ms. Gaskins' job if she reported his conduct to Ms. Euler. Therefore, once Ms. Gaskins' did in fact complain of harassment to Ms. Euler, Mr. Olmstead took actions which so tainted Ms. Euler's decision making process, including lying during the investigation and alleging other, non-related, inappropriate conduct engaged in by Ms. Gaskins, that it could be said that the ultimate reason for the termination was discriminatory and not based on Ms. Gaskins' conduct. For had Ms. Euler been aware of all the circumstances surrounding Ms. Gaskins' phone message, she may have concluded that the message was not sexually harassing, thus making false the reason she articulated for Ms. Gaskins' discharge.
While on the one hand, a reasonable jury could conclude that Ms. Gaskins was terminated solely because of the message she left on Mr. Olmstead's home answering machine on April 10, on the other hand, it would be entirely reasonable for a jury to conclude that Ms. Gaskins was fired as a result of her statutorily protected expression, and not as a result of her alleged harassment of Mr. Olmstead. Therefore, summary judgment is not appropriate as to this claim and will not be granted.
b. Corey's Retaliation Claim
Vencor maintains that Ms. Corey's retaliation claim should fail because (1) she cannot establish any elements of her prima facie case and (2) even if she could establish a prima facie case, she cannot demonstrate that Vencor's stated reasons for her discharge was a pretext for discrimination. As to the elements of Ms. Corey's prima facie case, Vencor maintains that Ms. Corey did not engage in statutorily protected expression because she never made a sexual harassment complaint, she did not suffer an adverse employment action because she voluntarily resigned, and, finally, she cannot establish a causal connection between any protected expression and any adverse employment action.
As to the first element of her prima facie case, Ms. Corey asserts that she engaged in statutorily protected expression in two ways. First, she reported to Jim Lichauer, Director of Pharmacy, that Mr. Olmstead was constantly touching her and pulling her into his office, and making her feel uncomfortable. Second, she informed Ms. Gaskins, who informed Mr. Olmstead, that she was going to report Mr. Olmstead's conduct to Ms. Euler.
As an initial matter as to this first element, the court notes that in order to succeed on a retaliation claim, Ms. Corey need not prove that she was subjected to sexual harassment. Ms. Corey is protected for complaining of what she reasonably believed to be sexual harassment, even if what she complained of was not in fact sexual harassment. See Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1314 (7th Cir. 1989) ("In order for the plaintiff's expression to be protected by section 2000e-3(a), the challenged practice need not actually violate Title VII. Instead, it is sufficient if the plaintiff has a reasonable belief that she is challenging conduct in violation of Title VII.") (citations omitted).
Thus, Ms. Corey engaged in protected expression. Both her complaints to Mr. Lichauer and her complaints to Ms. Gaskins were statutorily protected expression for which Ms. Corey could not be retaliated against. Of course, it waits to be seen whether any of these complaints can be causally linked to Ms. Corey's adverse employment action.
As to the second element of her prima facie case, Ms. Corey submits that she did not voluntarily resign, but was instead constructively discharged. Vencor does not dispute that a constructive discharge can amount to an adverse employment action. See, e.g., Heuer v. Weil-McLain, 203 F.3d 1021, 1023 (7th Cir. 2000) (listing constructive discharge as a "classic example" of an adverse employment action) (citations omitted). Rather, Vencor argues only that Ms. Corey was not constructively discharged. Whether Ms. Corey was constructively discharged or voluntarily resigned is a question of fact for the jury. In Heuer, the court defined constructive discharge as "an act or series of acts that have the effect though not the form of a discharge." Id.; see also Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996) ("The action that precipitates a constructive discharge, while it must be sufficiently harmful or offensive to make a reasonable employee consider remaining in the job impossible, need not itself be a materially adverse employment action, or indeed an employment action of any kind."). Mr. Olmstead told Ms. Corey that she would be fired if she did not resign. Presumably to avoid being fired, Ms. Corey resigned. A jury could thus conclude that Mr. Omlstead's act had the effect of discharge.
Ms. Corey's allegation that she was constructively discharged should not be confused with a constructive discharge claim under Title VII — a claim that Ms. Corey has not brought.
As to the third element of her prima facie case, Ms. Corey suggests that Mr. Olmstead's investigation of Ms. Corey's alleged poor performance establishes the causal link between her complaints and her discharge. Mr. Olmstead ultimately recommended that Ms. Corey be terminated for her alleged inappropriate conduct. Mr. Olmstead's recommendation and phone conversation with Ms. Corey during which he stated that she would be terminated if she did not resign, led to Ms. Corey's adverse employment action. Mr. Olmstead's investigation occurred after he was made aware that Ms. Corey was threatening to report his conduct to Ms. Euler. From these facts, a rational jury could conclude that Mr. Olmstead introduced a discriminatory animus into Vencor's position regarding Ms. Corey's employment status, as articulated to her by her supervisor, Mr. Olmstead. See Dey, 28 F.3d at 1459-60 (discussed above). Moreover, were Ms. Corey able to show that her alleged performance deficiencies were fabricated or exaggerated, an aspect of her case addressed immediately below, the inference that Mr. Olmstead introduced a discriminatory purpose would be made stronger. See id. at 1460. Thus, as in Dey, this court concludes that it would not be unreasonable to infer a causal link between Ms. Corey's complaints and her adverse employment action.
Ms. Corey does not suggest a manner in which a causal link exists between her comments to Mr. Lichauer and her adverse employment action. Ms. Corey has submitted no admissible evidence that Mr. Lichauer told anyone of Ms. Corey's complaints. Nor is there any evidence that Mr. Lichauer was in any way involved in Ms. Corey's adverse employment action. Thus, there exists no evidence from which a jury could infer a causal link between Ms. Corey's complaints to Mr. Lichauer and Vencor's employment decision. Accordingly, Ms. Corey is precluded at trial from asserting a retaliation theory based on the complaints made to Mr. Lichauer. See generally, FED. R. CIV. P. 56(d).
Whether "causal link" means "that the plaintiff must present evidence that had it not been for his protected expression, he would not have been fired" or "that the protected expression and the adverse action were not wholly unrelated," i.e., something less than "but for" causation, Ms. Corey has come forward with sufficient evidence to establish this element of her prima facie case. Bourbon v. Kmart Corp., 223 F.3d 469, 476 (7th Cir. 2000) (Posner, J. concurring) (recognizing that the Seventh Circuit has accepted both definitions and has not yet finally decided which definition controls in this circuit) (internal quotations and citations omitted).
In response to Ms. Corey's prima facie case, Vencor articulates a legitimate, non-discriminatory reason for Ms. Corey's discharge — patient abandonment. Ms. Corey counters in part by asserting that her conduct concerning the immediate care of patient B was not deficient. While "general averments of adequate performance are insufficient to create a factual issue on summary judgment . . ., a plaintiff may create an issue of fact by specifically refuting facts that allegedly support the employer's claim of performance deficiencies." Dey, 28 F.3d at 1460 (citing, e.g., Komel v. Jewel Cos., 874 F.2d 472, 474-75 (7th Cir. 1989) ("an employee's denial of specific events which form the basis of the employer's evaluation may be sufficient to create a genuine issue of fact")). "A detailed refutation of events which underlie the employer's negative performance assessment demonstrates that the employer may not have honestly relied on the identified deficiencies in making its decision. The plaintiff could thereby create a factual issue as to whether the employer's explanation is credible or merely a pretext for discrimination." Id. at 1460-61.
Ms. Corey has specifically refuted the facts upon which Vencor's finding of misconduct was based. Moreover, Ms. Corey has presented evidence from which a jury could conclude that Mr. Olmstead, the person who investigated her conduct, had an improper motive for recommending her termination — she had complained about his harassing behavior. A reasonable trier of fact could conclude that Ms. Corey's was fired in retaliation for her complaints against Mr. Olmstead and that the proffered reason given to her by Vencor was false. See id. at 1461 (holding that a trial must be held if the plaintiff has submitted evidence from which a rational trier of fact could infer that the employer fabricated the reason for the plaintiff-employee's dismissal) (citations omitted).
C. Gaskins' State Law Claims
Ms. Gaskins asserts the state law claims of intentional infliction of emotional distress, intentional interference with a business relationship, and assault and battery against Mr. Olmstead. Mr. Olmstead moves for summary judgment on each of these claims.
1. Intentional Infliction Of Emotional Distress
"[O]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another" commits the tort of intentional infliction of emotional distress and "is subject to liability for such emotional distress." Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991) (quotation omitted); see also Bradley v. Hall, 720 N.E.2d 747, 753 (Ind.Ct.App. 1999) ("`Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to an average member of the community would arose his resentment against the actor, and lead him to exclaim, `Outrageous!'") (quoting Restatement (Second) of Torts § 46). "It is the intent to harm one emotionally that constitutes the basis for the tort of an intentional infliction of emotional distress." Cullison, 570 N.E.2d at 31. Mr. Olmstead argues that because Ms. Gaskins' testimony only alleges a consensual affair, none of his conduct "is even close to the type of severe conduct" for which one can be found liable of this tort. (Defs.' Br. in Supp. at 28.) Mr. Olmstead goes so far as to write, "Of all of the material facts in this matter, only Gaskins [sic] fabrication about her pregnancy and her intentionally harassing phone call `exceed all bounds usually tolerated by a decent society.'" (Id. at 29.)
The conduct of which Ms. Gaskins accuses Mr. Olmstead could certainly be classified as outrageous and extreme in the mind of a reasonable person. Ms. Gaskins, among other things, accuses Mr. Olmstead of forcing her, against her will, to perform oral sex on him. It is remarkable that Mr. Olmstead argues that while this conduct cannot possibly be classified as outrageous, Ms. Gaskins fabrication about her pregnancy and harassing phone call exceed the bounds of conduct tolerated by a decent society!
Because a reasonable jury could find that Mr. Olmstead committed the tort of intentional infliction of emotional distress as to Ms. Gaskins, summary judgment is not appropriate. See Bradley, 720 N.E.2d at 753 (reversing trial court's grant of summary judgment to the defendant after finding that reasonable persons could differ "on the questions of whether [the defendant's] conduct was extreme and outrageous and, if so, whether that conduct caused [the plaintiff] to suffer severe emotional distress").
Note that Mr. Olmstead in his original Brief in Support of his motion for summary judgment does not argue that his conduct did not cause Ms. Gaskins severe emotional distress. Rather, Mr. Olmstead focuses his entire argument on whether his conduct was extreme. In his Reply Brief, Mr. Olmstead simply states, "Plaintiffs cannot establish that Olmstead engaged in `extreme and outrageous conduct' that caused `severe emotional distress' to the Plaintiffs." (Defs.' Reply Br. at 20.) To the extent that Mr. Olmstead is arguing in his Reply Brief that his conduct, even if extreme and outrageous, did not cause Ms. Gaskins severe emotional distress, the court refuses to consider that line of argument at this time. As stated above, the court will not consider arguments raised for the first time in a Reply Brief. To do so would be unfair to the plaintiff as she would not have had the opportunity to respond to that argument in her response brief. In this case, Ms. Gaskins did not address the requirement that Mr. Olmstead's conduct cause severe emotional distress in her Brief in Response, as she no doubt would have if Mr. Olmstead had made such an argument in his Brief in Support. Rather, Ms. Gaskins spends all of her time responding to Mr. Olmstead's sole agrument, that his conduct was not extreme and outrageous.
2. Intentional Interference With A Business Relationship
Under Indiana law, the elements of the tort of intentional interference with a business relationship are: "(1) the existence of a valid relationship; (2) the defendant's knowledge of the existence of the relationship; (3) the defendant's intentional interference with that relationship; (4) the absence of justification; and (5) damages resulting from defendant's wrongful interference with the relationship." Levee v. Beeching, 729 N.E.2d 215, 222 (Ind.Ct.App. 2000) (citing Bradley, 720 N.E.2d at 750). Additionally, "illegal conduct is an essential element of tortious interference with a business relationship." Id. (citations omitted). Mr. Olmstead argues that the "overwhelming evidence demonstrates that Olmstead did not intentionally interfere with Gaskins' relationship with Vencor, that he was justified in any interference and that such interference was not illegal." (Defs.' Br. in Supp. at 27 (emphasis in original).) Ms. Gaskins responds that Mr. Olmstead did intentionally interfere with Ms. Gaskins' business relationship with Vencor by causing her termination and that Mr. Olmstead acted illegally by his interference.
From the lengthy discussion above, there is no doubt that Ms. Gaskins presented enough evidence from which a reasonable jury could conclude that Mr. Olmstead intentionally interfered with Ms. Gaskins' business relationship with Vencor. A reasonably jury could conclude that Mr. Olmstead subjected Ms. Gaskins both to hostile environment and quid pro quo sexual harassment, thus intentionally interfering with Ms. Gaskins' business relationship. Moreover, considering the facts as Ms. Gaskins alleges, Mr. Olmstead had an intimate role in Vencor's decision to terminate Ms. Gaskins and contributed false information which may have been the cornerstone of that decision. For the same reasons, a reasonable jury could also conclude that Mr. Olmstead's interference was not justified. Mr. Olmstead maintains that he was justified in making his complaint to Ms. Euler. While that may be true, a jury could conclude that his actions taken both before and after his complaint was filed were not justifiable.
Finally, a reasonable jury could conclude that Mr. Olmstead's interference with Ms. Gaskins' business relationship was illegal. Indiana courts have not defined "illegality" nor have they articulated a test for a showing of "illegal conduct." See Levee, 729 N.E.2d at 222-23 (recognizing "the lack of a definition or test for a showing of the `illegal conduct' element of tortious interference with a business relationship"); Bradley, 720 N.E.2d at 751 n. 3 ("`Illegality' is not a term of art, and no court has defined the meaning of `illegal' as used in this context."). Indiana courts have simply stated that a defendant must have "acted illegally in achieving his end." Harvest Life Ins. Co. v. Getche, 701 N.E.2d 871, 876 (Ind.Ct.App. 1998), trans. denied, 714 N.E.2d 171 (Ind. 1999); Biggs v. Marsh, 446 N.E.2d 977, 983 (Ind.Ct.App. 1983) (citations omitted). The Seventh Circuit, however, has recognized that "courts interpreting Indiana law have held that non-criminal illegal acts are sufficient." Syndicate Sales, Inc. v. Hampshire Paper Corp., 192 F.3d 633, 641 (7th Cir. 1999) (citation omitted). Here, there are enough facts from which a reasonable jury could find that Mr. Olmstead acted illegally when interfering with Ms. Gaskins' business relationship. Most egregious is Ms. Gaskins' allegations of sexual harassment both in the form of quid pro quo and hostile environment. If a jury finds that Mr. Olmstead did indeed subject Ms. Gaskins to the harassment she alleges, of which there is enough evidence for a jury to so find, a jury could then conclude that Mr. Olmstead acted illegally in interfering.
Of course, a jury would then be required to find that damages resulted from Mr. Olmstead's wrongful interference. Here, a jury could find that Mr. Olmstead's conduct led directly to Ms. Gaskins' termination, including his contribution of false information in the investigation which resulted in Ms. Gaskins' termination. Therefore, summary judgment is improper here.
3. Assault And Battery
Battery, under Indiana law, is defined as "a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent." Fields v. Cummins Employees Fed. Credit Union, 540 N.E.2d 631, 640 (Ind.Ct.App. 1989) (holding that the plaintiff stated a claim for assault and battery by alleging that the defendant "touched her face, shoulders and buttocks and attempted to kiss her all without her consent" and reversing the trial court's entry of summary judgment in favor of the defendant) (quotation omitted). "An assault creates an apprehension of a harmful or offensive contact." Id. (citation omitted). "Any touching, however slight, may constitute assault and battery." Cohen v. Peoples, 220 N.E.2d 665, 667 (Ind.Ct.App. 1966) (citation omitted). Mr. Olmstead maintains that because Ms. Gaskins alleges a consensual affair, any contact that occurred between them was welcome by Ms. Gaskins. Therefore, Mr. Olmstead argues, a reasonable jury could not conclude that Mr. Olmstead committed assault and battery.
The court notes that one aspect of the holding in this case was disapproved in Wine-Settergren v. Lamey, 716 N.E.2d 381 (Ind. 1999). However, the portion of Fields that was disapproved of in Wine-Settergren is not relevant to the proposition of Fields upon which this court relies. As to that proposition, Fields is still good law.
As the court has explained above, a reasonable jury could conclude that at least some of the sexual acts were not consensual, were unwelcome and took place after the consensual affair ended. There is no dispute that the sexual acts at issue involved physical touching. Therefore, it is possible for a reasonable jury to conclude that Mr. Olmstead, by engaging in such sexual acts with Ms. Gaskins, committed an assault and battery as defined under Indiana law. Moreover, even to the extent that Ms. Gaskins and Mr. Olmstead engaged in consensual acts, Mr. Olmstead could have committed battery if he exceeded the bounds of Ms. Gaskins' consent. Accordingly, Mr. Olmstead's motion for summary judgment as to this claim will be denied.
D. Corey's State Law Claims
Ms. Corey asserts the state law claims of intentional infliction of emotional distress and intentional interference with a business relationship against Mr. Olmstead. Mr. Olmstead moves for summary judgment on each of these claims.
1. Intentional Infliction Of Emotional Distress
Mr. Olmstead maintains that even if he had conducted himself in the manner described by Ms. Corey, he cannot be found liable for the tort of intentional infliction of emotional distress because his conduct was not extreme and outrageous, as to exceed the bounds tolerated by a decent society. Ms. Corey responds that Mr. Olmstead's "biased `investigation'" of her conduct, launched only after he was made aware that she threatened to report her allegations of sexual harassment, "was outrageous and intended to inflict emotional distress on Corey." (Pls.' Br. in Resp. at 56.) Ms. Corey has not cited a single case to support her theory.
Indiana courts have recognized that in the appropriate case, the question of whether a defendant's conduct was extreme and outrageous "may be decided as a matter of law." Bradley, 720 N.E.2d at 753 (citing Conwell v. Beatty, 667 N.E.2d 768, 775-77 (Ind.Ct.App. 1996); Gable v. Curtis, 673 N.E.2d 805, 809-11 (Ind.Ct.App. 1996)). This is such an appropriate case.
First, the sexually harassing conduct with which Ms. Corey accuses Mr. Olmstead, even if true, would not rise to the level necessary to prevail on a claim for the tort of intentional infliction of emotional distress under Indiana law. While Mr. Olmstead's comment about wishing to see Ms. Corey and Ms. Gaskins engaged in lesbian sex may have been crude and juvenile, it does not reach the degree of behavior for which one may be found liable for this tort. Moreover, this comment was not spoken directly from Mr. Olmstead to Ms. Corey, but was rather relayed to Ms. Corey from Ms. Gaskins. Although this indirect method of communication does not trivialize Mr. Olmstead's comment, it certainly does lessen the emotional impact that it might have had on Ms. Corey, thereby lessening the tolerability of such a comment. As for the other conduct that Ms. Corey accuses Mr. Olmstead, including his unwelcome touching and comments about his sexual life, a reasonable jury could not conclude that such conduct was, "Outrageous!" After all, Ms. Corey admits that she never even mentioned to Mr. Olmstead that such conduct offended her. See generally, Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993) (affirming district court's dismissal of employee's intentional infliction of emotional distress claim against her employer because employer's conduct, including discriminating against her, demoting her, falsely accusing her of poor job performance, threatening her with discipline, eavesdropping on her telephone calls, having her vehicle damaged and vandalized while on company property, etcetera, did not "reach the level of extreme and outrageous conduct needed to establish a claim for intentional infliction of emotional distress").
The court notes that in Harriston, the Seventh Circuit relied on Illinois law in affirming the district court's dismissal of the plaintiff's claim. However, Illinois law on intentional infliction of emotional distress is analogous to Indiana law on that tort. Under the law of either state, the tort feasor's conduct must be extreme and outrageous. See Doe v. Calumet City, 641 N.E.2d 498, 506 (Ill. 1994) ("In order to state a cause of action for intentional infliction of emotional distress, a party must allege facts which establish that: (1) the defendant's conduct was extreme and outrageous; (2) the defendant either intended that his conduct should inflict severe emotional distress, or knew that there was a high probability that his conduct would cause severe emotional distress; (3) the defendant's conduct in fact caused severe emotional distress.") (citation omitted); Pub. Fin. Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976) ("`Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.'") (quoting Restatement (Second) of Torts § 46).
Second, Mr. Olmstead's launching of an investigation into the allegations raised against Ms. Corey was not extreme and outrageous conduct. From the evidence taken in light most favorable to Ms. Corey, it is clear that Mr. Olmstead was warranted in at least conducting an investigation. Ms. Corey acknowledges that two written complaints were filed against her stemming from the March 9 incident, and there can be no dispute that what happened on March 16 presented at least a dangerous situation. As for Mr. Olmstead's alleged conduct during the investigation, while it may have been illegal, it was not so extreme and outrageous as to rise to the level necessary to prove a claim for intentional infliction of emotional distress. See Stoecklein v. Illinois Tool Works, Inc., 589 F. Supp. 139, 146 (N.D. Ill. 1984) ("While the alleged discriminatory discharge and consequent loss of employment if proven were wrongful under the ADEA and by themselves may have caused emotional distress, they are insufficient without more to establish extreme and outrageous conduct."); see also Bradley, 720 N.E.2d at 753 ("`It has not been enough that the defendant has acted with an intent which is tortious or even criminal. . . .'") (quoting Restatement (Second) of Torts § 46). Mr. Olmstead's conduct while conducting the investigation may have been contemptible, but it was not "so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Bradley, 720 N.E.2d at 753. (quotation omitted). For these reasons, no reasonable jury could conclude that Mr. Olmstead's conduct as to Ms. Corey was so extreme and outrageous as to give rise to the tort of intentional infliction of emotional distress, and, thus, summary judgment as to this claim is proper.
2. Intentional Interference With A Business Relationship
Mr. Olmstead claims that the "overwhelming evidence demonstrates that Olmstead did not intentionally interfere with Corey's relationship with Vencor, that he was justified in any interference and that such interference was not illegal." (Defs.' Br. in Supp. at 27 (emphasis in original).) Ms. Corey argues that Mr. Olmstead did illegally and intentionally interfere with Ms. Corey's business relationship and that such interference was not justified.
Ms. Corey has presented sufficient evidence from which a rational jury could conclude that Mr. Olmstead illegally and intentionally interfered with her business relationship and that his interference was not justified. First, a reasonable jury could conclude that Mr. Olmstead interfered with her business relationship by recommending that she be terminated. Next, a reasonable jury could conclude that Mr. Olmstead's recommendation was not justified because Mr. Olmstead's purpose in making such recommendation was discriminatory. Finally, a reasonable jury could conclude that Mr. Olmstead acted illegally in interfering with Ms. Corey's business relationship in that his actions amounted to sex discrimination in the form of retaliation in violation of Title VII. All in all, a rational trier of fact could conclude that Mr. Olmstead committed the tort of intentional interference with a business relationship. According, summary judgment as to this claim will be denied.
VI. CONCLUSION
For the foregoing reasons, Defendants' motions for summary judgment are granted in part and denied in part. Specifically, Defendants' motion for summary judgment on Donna Gaskins' claims is DENIED in its entirety. Defendants' motion for summary judgment on Elizabeth Corey's claims of sexual harassment and intentional infliction of emotional distress is GRANTED. Summary judgment as to all other of Elizabeth Corey's claims is DENIED. Additionally, Defendants' motions to strike paragraphs 3 through 11, 13 and 14 of Donna Gaskins' affidavit are DENIED.
According to the court's rulings made in this Entry, the issues remaining for trial include: (1) whether Donna Gaskins was subjected to sexual harassment, under hostile work environment and/or quid pro quo theories, in violation of Title VII of the 1964 Civil Rights Act, (2) whether Donna Gaskins was subjected to retaliation in violation of Title VII, (3) whether Donna Gaskins was intentionally inflicted with emotional distress in violation of Indiana law, (4) whether Donna Gaskins' business relationship with Vencor was intentionally interfered with in violation of Indiana law, (5) whether Donna Gaskins was subjected to assault and battery in violation of Indiana law, (6) whether Elizabeth Corey was subjected to retaliation in violation of Title VII, and, finally (7) whether Elizabeth Corey's business relationship with Vencor was intentionally interfered with in violation of Indiana law.
ALL OF WHICH IS ORDERED this 26th day of March 2001.