The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz
This case is before the Court on Defendant's Motion for Summary Judgment (Doc. No. 10), which Plaintiff has opposed (Doc. No. 25), and on Plaintiff's Motion for Summary Judgment (Doc. No. 14) which Defendant has opposed (Doc. No. 26) and on which Plaintiff has filed a Reply Memorandum in support (Doc. No. 27).
SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. On a motion for summary judgment, the movant has the burden of showing that there exists no genuine issue of material fact, and the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). Nevertheless, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986).
Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment asserting that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed. R. Civ. P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989). If, after sufficient time for discovery, the opposing party is unable to demonstrate that he or she can do so under the Liberty Lobby criteria, summary judgment is appropriate. Id. The opposing party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citations omitted). "The mere possibility of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F. 2d 577, 582 (6th Cir. 1992)(quoting Gregg v. Allen-Bradley Co., 801 F. 2d 859, 863 (6th Cir. 1986). Therefore a court must make a preliminary assessment of the evidence, in order to decide whether the plaintiff's evidence concerns a material issue and is more than de minimis. Hartsel v. Keys, 87 F. 3d 795 (6th Cir. 1996). "On summary judgment," moreover, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed. 2d 176 (1962). Thus, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249, 106 S.Ct. at 2510.
[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323; see also, Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (citation omitted). If the moving party meets this burden, the nonmoving party must go beyond the pleadings to show that there is a genuine issue for trial. Matsushita, 475 U.S. at 587; Martin v. Ohio Turnpike Comm'n., 968 F. 2d 606, (6th Cir. 1992), cert. denied, 506 U.S. 1054, 113 S.Ct. 979, 122 L.Ed.2d 133 (1993).
In ruling on a motion for summary judgment (in other words, determining whether there is a genuine issue of material fact), "[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990). Thus, in determining whether a genuine issue of material fact exists on a particular issue, a court is entitled to rely only upon those portions of the verified pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.
A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3f 574, 581 (6th Cir. 2001). "Materiality is determined by the substantive law claim." Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is genuine if a "reasonable jury could return a verdict for the nonmoving party." Henson v. Nat'l Aeronautics & Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994), quoting Anderson, 477 U.S. at 248. Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000), rev'd on other grounds, 536 U.S. 639 (2002). Thus, a factual dispute which is merely colorable or is not significantly probative will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir.), cert. denied 510 U.S. 976 (1993); see also, Int'l Union United Auto., Aerospace & Agriculture Implement Workers of America v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999), cert. denied 529 U.S. 1076 (2000).
The party opposing the motion may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street, 886 F.2d at 1479. A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. If, after sufficient opportunity for discovery, the non-moving party is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23.
The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enterprises v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991).
Although the parties have filed cross-motions for summary judgment, they do not concede the facts are truly undisputed from the opposing party's perspective as well as their own. Compare Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d §2720 (1998). Therefore the foregoing standard for deciding summary judgment motions must be applied to the two Motions for Summary Judgment separately.
In her First Amended Complaint (Doc. No. 24)*fn1 , Plaintiff asserts the following claims for relief: discrimination in violation of the Americans with Disabilities Act ("ADA") (First Claim), retaliation in violation of the ADA (Second Claim), sex discrimination in violation of Title VII of the 1964 Civil Rights Act (Third Claim), retaliation in violation of Title VII (Fourth Claim), sex discrimination in violation of Ohio Revised Code §§ 4112.02 and 4112.99 (Fifth Claim), disability discrimination in violation of Ohio Revised Code §§ 4112.02 and 4112.99 (Sixth Claim), retaliation in violation of in violation of Ohio Revised Code §§ 4112.02 and 4112.99 (Seventh Claim), invasion of privacy and other constitutional rights in violation of the First and Fourteenth Amendments to the United States Constitution (Eighth Claim), unlawful search and seizure in violation of Plaintiff's rights under the Fourth and Fourteenth Amendments to the United States Constitution (Ninth Claim), and wrongful termination in violation of the common law of Ohio (Tenth Claim).
Neither party identified lay or expert witnesses as provided in the Court's Scheduling Order of November 29, 2005 (Doc. No. 8, ¶¶ 4, 5)*fn2 . The summary judgment motions rely on the depositions of Christine Gilbert, the Plaintiff, (Doc. No. 18), Wayne Muterspaw, Defendant's Road Superintendent, (Doc. No. 19), and Trish Gustafson, Defendant's Human Resources Manager (Doc. No. 20)*fn3 , and the Affidavit of Anthony Almazan, M.D. (attached to Doc. No. 10).
It is uncontested that Plaintiff was employed by Defendant, an Ohio political subdivision, starting in a part-time position in March, 2000, moving to full-time employment as a Service Worker I in the Road Department in September, 2000, and being promoted to a Service Worker II in early, 2003. Plaintiff's employment was terminated as of March 29, 2005. Plaintiff was off work in August, 2004, because of illness (Amended Complaint, Doc. No. 24, ¶11).
The following testimony appears in Plaintiff's deposition: In May, 2004, Ms. Gilbert's family physician, Dr. Van Trease, had a magnetic resonance imaging ("MRI") test performed on Ms. Gilbert's back because Ms. Gilbert was experiencing "back pains and stuff of that nature" (Gilbert Depo., p. 18). Ms. Gilbert learned from a specialist to whom she was referred by Dr. Van Trease that the MRI showed two bulging disks. Id. at 19. The specialist believed physical therapy would fix the problem and surgery was not necessary. Id. ...