SARA LIOI, District Judge.
This matter is before the Court on two motions: (1) the motion of defendant Tuscarawas County Health Department ("defendant" or "Health Department") to strike the expert report of plaintiff Judith Ann Tornabene ("plaintiff" or "Tornabene") (Doc. No. 22 ["Mot."])
Many of the undisputed facts in this case are recited in the complaint. (Doc. No. 1 ["Compl."].) Plaintiff was born on May 15, 1952. (Id. ¶ 2.) It is undisputed that plaintiff, a licensed nurse in the State of Ohio, was employed by defendant from 1994 until she was terminated on July 7, 2015. (Id. ¶¶ 2, 5, 6.) It is also undisputed that Katie Seward
The parties dispute the reasons for Tornabene's discipline and termination. Plaintiff alleges that she was terminated in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., ("ADEA"). Defendant denies this, and contends that plaintiff was terminated because of poor performance. Additional facts will be discussed later in this opinion as relevant and necessary for the Court's analysis.
The Court established a case management schedule which provided for expert reports and discovery. Plaintiff identified Dennis Doverspike, Ph.D. ("Doverspike") as her expert (Doc. No. 20), and defendant's motion seeks to strike his report.
The Court will address defendant's motion to strike before resolving defendant's summary judgment motion.
Defendant seeks to strike the following opinion in Doverspike's report, arguing that his opinions are impermissible conclusions that go directly to the ultimate legal issue in this case— whether the Health Department discriminated against Tornabene on the basis of age when it terminated her employment:
(Mot. at 184-85, quoting the Report.)
Defendant also takes issue with two hypothesis in Doverspike's report, arguing that the first is not based on any evidence reviewed in this case, and the second addresses the central issue in the case—whether age discrimination was the "but for" cause of Tornabene's termination:
2. The decisions regarding the treatment of Tornabene by Seward and the Tuscarawas County Health Department were a function of age stereotypes; thus, discrimination based on age occurred in the decision making process with regard to the evaluation of the behaviors engaged in by Tornabene.
(Id. at 185 (quoting the Report).)
Federal Rule of Evidence 702 provides that:
District courts serve a "gatekeeping" function to exclude unreliable expert testimony in scientific cases. Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786. 125 L. Ed. 2d 469 (1993). In addition to being reliable, the expert's testimony must assist the trier of fact. Fed. R. Evid. 702. "This requirement has been interpreted to mean that scientific testimony must `fit' the facts of the case, that is, there must be a connection between the scientific research or test result being offered and the disputed factual issues in the case in which the expert will testify." Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000) (citing Daubert, 509 U.S. at 592). This gatekeeping function applies to expert testimony in both scientific and non-scientific cases. See Kumho Tire Co., Ltd., v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L. Ed. 2d 238 (1999); Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994).
The Court has discretion in exercising this gatekeeping function to determine whether a proposed expert's testimony is admissible, based on whether it is both relevant and reliable, and will assist the trier of fact. Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 429 (6th Cir. 2007) (citation omitted); Kilgore v. Carson Pirie Holdings, Inc. 205 F. App'x 367, 370 (6th Cir. 2006) (citing Kumho, 526 U.S. at 141, 152). "[U]nder Daubert and its progeny, a party proffering expert testimony must show by a `preponderance of proof' that the expert whose testimony is being offered is qualified and will testify to scientific knowledge that will assist the trier of fact in understanding and disposing of issues relevant to the case." Pride, 218 F.3d at 578 (citing Daubert, 509 U.S. at 592, n.10).
In general, "[a]n opinion is not objectionable just because it embraces an ultimate issue." Fed. R. Evid. 704(a). However,
Berry, 25 F.3d at 1353 (emphasis in original).
The Court's duty to exclude legal opinions or legal conclusions offered by experts that the Court deems improper is independent of Rule 704. Hernandez v. City of Findlay, No. 3:14 CV 250, 2016 WL 557773, at *2 (N.D. Ohio Feb. 12, 2016) (citing Ross Bros. Constr. Co. v. MarkWest Hydrocarbon, Inc., 196 F. App'x. 412, 415 (6th Cir. 2006)). As the Sixth Circuit explained:
Ross Brothers, 196 F. App'x at 415 (citing Stoler v. Penn Cent. Transp. Co., 583 F.2d 896, 899 (6th Cir. 1978)).
Defendant argues that Doverspike's opinion regarding the ultimate legal issue in the case—whether plaintiff's termination was the result of age discrimination—is inadmissible and must be stricken. (Mot. at 186.) At the hearing,
With respect to Doverspike's other opinions, plaintiff contends that defendant overstates its argument that Doverspike's report must be completely excluded. Plaintiff points out that "several" of Doverspike's opinions do not embrace the ultimate legal issue, including his opinions: (1) that age stereotypes exist; (2) that the age difference between plaintiff and her supervisor, Seward, "is significant"; (3) that Seward's positive performance evaluation of plaintiff in October 2014 is evidence of pretext; and (4) failure to use progressive discipline before terminating plaintiff is evidence of pretext. (See Opp'n at 1062.)
In reply, defendant contends that (1) the existence of age stereotypes is a function of Doverspike's research and that hypothesis was not tested to determine its applicability in this case; (2) the jury does not need the assistance of an expert to understand the age difference between Seward and Tornabene; (3) Seward evaluated Tornabene in October 2014 before plaintiff's performance problems emerged; and (4) as an unclassified employee, Tornabene was not legally entitled to progressive discipline, and even if she were, plaintiff's conduct was so egregious that termination was warranted. (Reply at 1188-89.)
These issues were addressed at the hearing. Plaintiff's counsel conceded that an expert is not needed to assist the jury regarding the age differential between Seward and plaintiff, and that whether plaintiff was entitled to progressive discipline was a legal issue for the Court. Doverspike's opinions regarding these issues are stricken.
With respect to age stereotyping and plaintiff's performance evaluations, plaintiff argues that Doverspike's opinions on these issues do not address the ultimate legal conclusion in the case, but the issue of pretext. Plaintiff maintains that Doverspike's opinions in this regard will assist the jury in assessing whether age stereotyping played a role in defendant's decisionmaking regarding plaintiff's performance and employment, and in determining whether age discrimination was the "but for" cause of plaintiff's termination.
Expert testimony is only admissible if it is both relevant and reliable. Daubert, 509 U.S. at 589; Kumho, 526 U.S. at 147. Defendant argues that Doverspike's testimony regarding age stereotyping is neither reliable
Expert testimony regarding stereotyping due to age, sex, or race, is not per se excludable as irrelevant. See E.E.O.C. v. Wal-Mart Stores, Inc., No. CIVA 6:01-CV-339-KKC, 2010 WL 583681, at *3 (E.D. Ky. Feb. 16, 2010) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 235-36, 109 S.Ct. 1775, 104 L. Ed. 2d 268 (1989) (permitting expert testimony that partner's sexbased comments showed evidence of sex-stereotyping in partnership decisions relevant to the issue of intentional discrimination)). That said, courts have arrived at different conclusions regarding the admissibility of expert testimony regarding stereotyping in discrimination cases. See e.g. id. at *3-4 (testimony that simply offers a "plausible" explanation defendant's employment actions is more prejudicial than probative and risks jury confusion); Tuli v. Brigham & Women's Hosp., Inc., 592 F.Supp.2d 208, 215-16 (D. Mass. 2009) (expert testimony describing how stereotyping occurs and noting that the statements and treatment described by plaintiff are consistent with that research, is admissible) (collecting cases admitting expert testimony on stereotyping); Childers v. Trustees of the Univ. of Pennsylvania, No. CV 14-2439, 2016 WL 1086669, at *5 (E.D. Pa. Mar. 21, 2016) ("Courts are divided about whether [expert] testimony [regarding stereotyping] is admissible or not.") (citing cases).
In this case, there is no evidence of comments by defendant or Seward suggesting that age stereotyping may be afoot.
Defendant moves for summary judgment on plaintiff's federal age discrimination claim. Briefly, defendant argues that plaintiff was terminated because of substantial performance problems, and plaintiff cannot overcome summary judgment with generic age discrimination allegations based upon age stereotyping and the difference in age between plaintiff and Seward. (See MSJ at 1018.)
Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if its resolution affects the outcome of the lawsuit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id.
The moving party must provide evidence to the court which demonstrates the absence of a genuine dispute as to any material fact. Once the moving party meets this initial burden, the opposing party must come forward with specific evidence showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson, 477 U.S. at 250. It is the nonmoving party's duty to point out specific facts in the record that create a genuine issue of material fact; the trial court does not have a duty to search the record "to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)); Fulson v. City of Columbus, 801 F.Supp. 1, 4 (S.D. Ohio 1992) (citation omitted).
The nonmoving party may oppose a summary judgment motion "by any of the kinds of evidentiary material listed in Rule 56(c), except the mere pleadings themselves[.]" Celotex, 477 U.S. at 324. The Court must view all facts and evidence, and inferences that may be reasonably drawn therefrom, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L. Ed. 2d 176 (1962). General averments or conclusory allegations of an affidavit do not create specific fact disputes for summary judgment purposes. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed. 2d 695 (1990).
"Summary judgment requires that a plaintiff present more than a scintilla of evidence to demonstrate each element of a prima facie case." Garza v. Norfolk S. Ry. Co. 536 F. App'x. 517, 519 (6th Cir. 2013) (citing Van Gorder v. Grand Trunk W. R.R., 509 F.3d 265, 268 (6th Cir. 2007)). "`The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].'" Street, 886 F.2d at 1477 (quoting Anderson, 477 U.S. at 252).
The district court's review on summary judgment is a threshold inquiry to determine whether there is the need for a trial due to genuine factual issues that must be resolved by a finder of fact because those issues may reasonably be resolved in favor of either party. Anderson, 477 U.S. at 250. Put another way, this Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52; see also Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 578 (6th Cir. 2003).
Celotex, 477 U.S. at 322-23 (internal quotation marks and citation omitted).
An ADEA plaintiff will survive summary judgment if she presents direct evidence that the adverse employment action was taken because of her age. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1081 (6th Cir. 1994). Direct evidence of discrimination is evidence that, if believed, proves a fact in issue without an inference or presumption. Rowan v. Lockheed Martin Energy Sys. Inc., 360 F.3d 544, 548 (6th Cir. 2004). It is undisputed that, in this case, there is no direct evidence of age discrimination. (See Doc. No. 24-1 (Deposition of Judith Ann Tornabene ["Tornabene Dep."]) at 228-30; 444-45.)
Direct evidence is not necessary, however, to prove age discrimination. A plaintiff "may establish a violation of the ADEA by either direct or circumstantial evidence." Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (citation omitted). Plaintiff will survive summary judgment if she can show a genuine issue of material fact regarding circumstantial evidence of age discrimination under the familiar three-step burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L. Ed. 2d 207 (1981). See Chappell v. GTE Prods. Corp., 803 F.2d 261, 265 (6th Cir. 1986) ("The evidentiary guidelines governing proof in discrimination cases were first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1973) (construing Title VII), and the same analysis is generally applied in ADEA cases.") (citing Coburn v. Pan Am. World Airways, Inc., 711 F.2d 339, 342 (D.C. Cir. 1983)); Geiger, 579 F.3d at 622 (applying McDonnell Douglas to circumstantial evidence claims in ADEA cases).
Under the McDonnell Douglas burden shifting analysis, the "burden of production rests first on the plaintiff to establish [a] prima facie case, then on the defendant `to articulate some legitimate non-discriminatory reason for the employee's [termination],' and finally again on the plaintiff to show that the defendant's reasons were pretextual." Chappell, 803 F.2d at 265 (citations omitted). Although the burden of production shifts between plaintiff and defendant, the burden of persuasion remains at all times with the plaintiff. Id. (citing Burdine, 450 U.S. at 254-55).
In order to satisfy that burden of persuasion, plaintiff must show that her age was the "but for" cause of the defendant's adverse employment action. Blizzard v. Marion Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 174 L. Ed. 2d 119 (2009)). "[I]t is not sufficient for the plaintiff to show that age was a motivating factor in the adverse action; rather, the ADEA's `because of' language requires that a plaintiff `prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the `but for' cause of the challenged employer decision.'" Scheick v. Tecumseh Pub. Schs., 766 F.3d 523, 529 (6th Cir. 2014) (quoting Gross, 557 U.S. at 177-78) (further citation omitted).
To set forth a prima facie case of age discrimination using circumstantial evidence, a plaintiff must establish four well-known elements: 1) that she was a member of a protected class;
2) that she was discharged; 3) that she was qualified for the position held; and 4) that she was replaced by someone outside of the protected class. Geiger, 579 F.3d at 622 (citations omitted). Defendant concedes that plaintiff meets the first three elements of her prima facie case—plaintiff was 63 years old on March 25, 2015 when she was placed on paid administrative leave before she was terminated, and was qualified for her position as the director of nursing. (MSJ at 1036.)
Defendant does not concede the fourth element. (Id.) In this case, Diane Rusznak, who was 73 years old at the time, was appointed to replace plaintiff as the interim director of nursing. (Doc. No. 25-1 (Declaration of Katie Seward ["Seward Dec."]) ¶¶ 4, 7.) Seward avers that she offered the position to Rusznak on a permanent basis, but Rusznak declined. (Id. ¶ 8.) Amy Kaser, who was 51 years old at the time, was ultimately named director of nursing as plaintiff's permanent replacement effective November 1, 2015. (Id. ¶¶ 5, 9.) Defendant argues that because defendant sought to replace plaintiff with a significantly older employee, plaintiff cannot establish the fourth element of her prima facie case. (MSJ at 1036-37.)
But viewing the evidence in a light most favorable to the plaintiff, as the Court must on summary judgment, the Court will focus on the age of Tornabene's actual permanent replacement, not the age of the individual that Seward claims she desired to hire. Plaintiff can typically satisfy the fourth prong by showing that she was replaced with a younger individual, so long as the difference in age is significant. See Grosjean v. First Energy Corp., 349 F.3d 332, 336 (6th Cir. 2003). "Age differences of ten or more years have generally been held to be sufficiently substantial to meet the requirement of the fourth part of age discrimination prima facie case." Grosjean, 349 F.3d at 336 (citation omitted).
In this case, the individual selected to permanently replace Tornabene as director of nursing was more than 10 years younger than plaintiff. Therefore, for the purpose of this analysis, the Court finds that plaintiff has satisfied the fourth element of her prima facie case of age discrimination. Thus, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for plaintiff's termination.
Defendant articulates a number of performance-based reasons for plaintiff's termination, including neglect of job duty, inefficiency, insubordination, failure to cooperate with other employees, failure to carry out job assignments, and causing distractions and disruptions on the job. (MSJ at 1039, citing Seward Dep. at 810.) These reasons are listed in "Statement of Charges for Discipline — Judy Tornabne" ("Statement") prepared by Seward. (Seward Dep. at 853-54; Doc. No. 24-4 at 996-97 (Deposition Exhibit 4 to Seward's deposition ["Ex. 4."]).)
Plaintiff concedes that defendant has satisfied its burden of production to articulate legitimate, non-discriminatory reasons for her termination. (Opp'n MSJ at 1207, citing Seward Dep. at 853-57; Ex. 4.) Thus, the burden shifts back to plaintiff to demonstrate pretext.
In order to avoid summary judgment on this prong of the McDonnell Douglas analysis, plaintiff must show that there is a genuine dispute of material fact from which a jury could reasonably find that the Health Department's stated reasons for her termination are pretextual, and that the real reason is unlawful age discrimination. In the Sixth Circuit, "a plaintiff can show pretext in three interrelated ways: (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer's action, or (3) that they were insufficient to motivate the employer's action." Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009) (footnote omitted). These three categories are not rigid or limiting factors for determining pretext, but rather guidelines for focusing on the ultimate inquiry: did defendant terminate plaintiff for the stated reasons, or did defendant make up those reasons to conceal unlawful age discrimination. Tingle v. Arbors at Hilliard, 692 F.3d 523, 530 (6th Cir. 2012) (citing Chen, 580 F.3d at 400, n.4); Spellman v. Ohio Dep't of Transp., ___ F. Supp. 3d ___, 2017 WL 1093281 (S.D. Ohio Mar. 22, 2017) (same) (quoting Tingle, 692 F.3d at 530).
Plaintiff contends that the record, viewed indulgently in her favor, supports all three of the above as a basis upon which a reasonable jury could conclude that defendant's stated reasons for her discipline and termination are a pretext for unlawful age discrimination. (Opp'n MSJ at 1209-10.)
Mismanagement of grants and programs is a significant aspect of the evidence underlying Seward's statement of charges against Tornabene. Specifically, defendant states that Tornabene:
(1) mismanaged the vaccines for children (VCF) program which resulted in the administration of free vaccines from the State of Ohio to ineligible recipients, and improper billing for free vaccines, totaling $60,000 which must be repaid to the State (Seward Dep. at 821-23); (2) failed to timely submit accurate grant documentation for the child and family health services program resulting in a loss of $21,000 in funding to the Health Department for two consecutive years (Id. at 886, 900-01); (3) failed to timely submit required reports and information regarding defendant's public health emergency preparedness, resulting in the withholding of $36,000 by the State of Ohio (Id. at 662, 881, 885); and (4) generally provided deficient oversight of the Health Department's grants and programs, including: (a) child and family health services (which received the lowest composite score of any health department in the state (Id. at 900; Doc. No. 24-2 at 533-34)); (b) public health emergency preparedness (failed to timely submit a response and plan after a site visit by the State on June 4, 2014 (Tornabene Dep. at 387-89)); (c) reproductive health and wellness (non-responsive to communications from the Ohio Department of Health regarding site visits (Seward Dep. at 665)); and (d) immunization action plan (reporting uncompleted work to the ODH as completed (Id. at 667-68)).
Other performance issues cited by defendant include: (1) failure to meet deadlines (Tornabene Dep. at 382-384, 388-89); (2) failure to respond to emails (Seward Dep. at 779-80; Tornabene Dep. at 357-58); (3) tardiness and attendance at meetings (Seward Dep. at 862-83; Tornabene Dep. at 426-27); (4) releasing employee satisfaction survey results in direct contravention to Seward's instructions (Seward Dep. at 870-71; Tornabene Dep. at 413-14); and (5) complaints from co-workers (see Doc. No. 24-2 at 560, 561, 562-63, 564, 565-75).
Plaintiff offers no evidence that the above-listed conduct
Plaintiff contends that the above-listed performance issues did not motivate defendant to terminate plaintiff and are insufficient to warrant termination. The only evidence advanced by plaintiff to support this argument is the expert report of Doverspike, from which plaintiff contends a jury could reasonably conclude in her favor that age discrimination was the "but for" cause of her termination.
Doverspike generally opines that age stereotyping may occur by younger supervisors of older workers and permeates an employer's perceptions of an older worker's performance. In this case, Doverspike posits that the issue is not "whether certain behaviors occurred or were engaged in by the Plaintiff[,]" but whether older workers are judged more severely than younger workers, and Tornabene was judged too severely because of her age. (Report at 1144, 1146.) Doverspike offers no examples of younger Health Department employees comparable to Tornabene who engaged in the same behavior, but received less severe discipline.
In support of his opinion that Tornabene's poor performance problems was insufficient to warrant the discipline that she received, and resulted from "a general discomfort on the part of Seward in working with an older subordinate[,]" Doverspike points to a positive performance evaluation Seward gave Tornabene in October 2014, which was followed later in 2014 and early 2015 by negative views of plaintiff's performance, as evidence of Seward's "general discomfort" in working with Tornabene. (Id. at 1146.) But Doverspike does not rebut—or even address—the explanatory evidence advanced by defendant that Seward was a new supervisor to Tornabene when plaintiff was evaluated in October 2014, after having received no evaluation for two years, and the issues with plaintiff's performance did not emerge and come to Seward's attention until later in 2014 and early 2015. (See Seward Dep. at 679, 806.)
Instead, Doverspike focuses on plaintiff's workload, outdated position description, unfamiliarity with the use of email, and defendant's failure to use progressive discipline.
Moreover, plaintiff has advanced no evidence that Seward's and defendant's actions, even if they were imperfect, were not grounded in an honest belief that plaintiff was deficient in her performance and warranted the discipline imposed.
In order to survive summary judgment, plaintiff must advance evidence from which a reasonable jury could conclude that defendant's reasons for terminating her are a pretext for unlawful age discrimination, and that age discrimination was the real "but for" reason for defendant's actions. Scheick, 766 F.3d at 529 (citations omitted); see Bender, 455 F.3d at 626 (citations omitted). Plaintiff has failed to do so.
The evidence advanced by plaintiff to rebut defendant's legitimate articulated reasons for discharging plaintiff does not provide a sufficient basis upon which a reasonable jury could conclude that defendant's stated reasons were pretextual, and age discrimination was the real "but for" reason that defendant terminated plaintiff. Indeed, plaintiff's expert provides a nondiscriminatory explanation defendant's actions:
(Supp. Report at 1183 (footnotes omitted) (emphasis added).)
In addition to all of the other reasons previously discussed, Doverspike's own opinion that it was Seward's lack of training that impacted defendant's decisions regarding plaintiff's performance and led to her termination further reinforces the Court's conclusion that plaintiff has failed to advance evidence on the issue of pretext from which a reasonable jury could conclude that age discrimination was the "but for" cause of defendant's discipline and termination of Tornabene. Accordingly, defendant is entitled to summary judgment on plaintiff's ADEA claim.
For all of the foregoing reasons, defendant's motion for summary judgment is granted. This case is dismissed and closed.
