Appendix — Riccardi v. Kessler
Supreme Court brief2010
Ask Donna
What actually matters in this document.
Text
Supreme Court, U.S.
y, FILED
ne () 10-107 — #PR28 zo10
OFFICE OF THE CLERK
Jn Che
Supreme Court of the CGnited States
October Term, 2010
DR. PATRIZIA RICCARDI,
Petitioner.
DR. ROBERT KESSLER,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit
APPENDIX TO PETITION FOR A WRIT OF CERTIORARI
Patrizia Riccardi
Petitioner, Pro Se
555 Main Street, Apt 515
New York, NY, 10044
RiccardiP@aol.com
646-342-3355
TABLE OF CONTENTS
UE IT candies sc ds av te victinaasniais geen la
Appendix A — Order Issued by the U.S.
Court Of Appeals for the Sixth Circuit,
Dated/Filed January 28, 2010........................ la
Appendix B - Motion of Appellant to
Amend Appellant's Brief .................. ccc eeee ee. 28a
Appendix C - Order, Memorandum
Opinion, Issued by Thomas A.
Wiseman, Jr., U.S.D.J., Dated
ee isco csv as ea eca ras cucu naceeescdsatessiecesassaceee
Appendix D - Order, Issued by Thomas
A. Wiseman, Jr., U.S.DJ., Dated
POE gob oa toccascciccatee ees mainte 97a
Pe Bes ohncoatecscntccpee saviors hace 102a
APPENDIX A- ORDER ISSUED BY THE U.S.
COURT OF APPEALS FOR THE SIXTH
CIRCUIT, DATED/FILED JANUARY 28, 2010
la
NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION
Kile Name: 10a00540.06
No. 08-5234
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
ROBERT KESSLER, ) ON APPEAL FROM
Plaintiff-Appellee, ) THE UNITED
) STATES DISTRICT
v. ) COURT FOR THE
) MIDDLE DISTRICT OF
PATRIZIA RICCARDI, ) TENNESSEE
Defendant-Appellant. )
FILED
Jan 28, 2010
LEONARD GREEN, Clerk
Before: NORRIS, CLAY and SUTTON, Circuit
Judges.
SUTTON, Circuit Judge. Dr. Patrizia Riccardi
sued Dr. Robert Kessler, alleging that he retaliated
against her after she reported him for sexual
harassment. Kessler, in turn, sued Riccardi for
defamation, alleging that her reports against him
Za
Appendix A
were false and damaged his reputation and mental
health. Kessler prevailed in both suits, and Riccardi,
now proceeding pro se, claims the district court
erred by: (1) granting partial summary judgment to
Kessler on her retaliation claim; (2) resolving three
evidentiary motions incorrectly; (8) granting
Kessler's pre-verdict motion for judgment as a
matter of law on the remainder of her retaliation
claim; and (4) denying her postverdict motion for
judgment as a matter of law on Kessler's defamation
claim. We affirm, except with regard to the pre-
verdict judgment as a matter of law on the
retaliation claim, which we reverse and remand.
Riccardi, a psychiatrist, began a medical-
research fellowship in the Radiology Department at
Vanderbilt University in September 2003. She
worked under the direct supervision of Kessler, a
radiology and psychiatry professor. When Riccardi
accepted a part-time faculty position in July 2004,
she agreed to fund a percentage of her salary with
grant money, which she could accomplish either by
obtaining her own grants or by contributing to the
grants of other faculty members, who would then
allocate a portion of their grant funding to her
salary.
During Ruiccardi's first two years _ at
Vanderbilt, she worked almost exclusively with
Kessler, researching a number of mental-health
Q2«¢
Ia
Appendix A
disorders using Positron Emission Tomography, a
neuroimaging technology. Riccardi claims she came
to Vanderbilt specifically to work with Kessler, as he
was a recognized scholar in PET imaging, the field in
which she too wanted to specialize. As Riccardi
understood it, Kessler planned to include her on all
of his grants and help her with grants of her own so
that she could reach her funding goal.
The nature of Riccardi and_ Kessler's
relationship differs dramatically depending on whom
you ask. Riccardi alleges that Kessler began sexually
harassing her in November 2003, which gradually
worsened and culminated in an attempted rape in
June 2005 when they were in Toronto attending a
professional conference. Kessler denies these
allegations, contending that the two began an on-
again-off-again affair in January 2004 that lasted
until June 2005, and that he, not Riccardi, was the
victim of the physical altercation in Toronto.
The Toronto incident prompted Riccardi to
report allegations of Kessler's sexual harassment
and attempted rape to Vanderbilt in June 2005.
University authorities conducted an investigation,
ultimately concluding that the evidence was
insufficient to substantiate Riccardi's claims. During
the investigation, Kessler told Vanderbilt authorities
that he and Riccardi had engaged in a consensual
sexual relationship. The university’ thereafter
strictly limited Kessler's interaction with Riccardi,
instructing him to avoid being alone with her and
4a
Appendix A
not to communicate with her directly. Because much
of Riccardi's work required the assistance or
supervision of Kessler, the parties worked out a
system whereby Riccardi and Kessler would
communicate by e-mail and copy each other's
attorneys on all of their messages.
In June 2006, Riccardi filed a_ sexual
harassment complaint that named Vanderbilt,
Kessler and radiology department chair Dr. Martin
Sandler as defendants. She raised a state-law claim
for retaliation against Kessler individually, along
with claims for battery and intentional infliction of
emotional distress stemming from the _ physical
altercation in ‘Toronto. Kessler countersued, alleging
defamation as well as assault and battery claims
based on the Toronto incident. Riccardi settled her
claims against Vanderbilt and Sandler before trial.
Riccardi alleged—and continues to claim on
appeal—that Kessler unlawfully retaliated against
her by inadequately supporting her grant-writing
efforts and by refusing to include her on a number of
his own grant proposals. The district court granted
partial summary judgment to Kessler regarding his
conduct on five of the grants, finding that Kessler
presented legitimate non-retaliatory reasons for his
actions and that Riccardi had not shown a genuine
factual issue as to whether the stated reasons were
pretextual. As for his conduct on two of the research
projects, however, the district court found that
Riccardi established a question of fact sufficient to
Pye
Ja
Appendix A
warrant a trial.
With the issues whittled down toa Riccardi‘;
remaining two allegations of retahatory conduct,
Kessler's defamation claim and both of then
personal-injury claims, the case proceeded to trial
At the close of the evidence and before the case went
to the jury, the district court granted Kessler's
motion for judgment as a matter of law on Riccardi's
remaining two allegations of retaliation, determining
that Riccardi neither established that she suffered
any adverse action nor demonstrated that the
explanations Kessler gave for his conduct were
pretextual.
The jury found in Kessler's favor across the
board, awarding him $15,000 in damages for
battery,$10,000 in compensatory damages for
assault, $500,000 in actual monetary damages for
defamation, $1,500,000 in other compensatory
damages for defamation and $950,000 in punitive
damages. App. 1236-39.
Riccardi filed a_ post-verdict motion for
judgment as a matter of law, claiming that Kessler
failed to present evidence of actual damages
resulting from the defamatory statements. In the
alternative, she requested a new trial or a remittitur
of the compensatory and punitive damages for
defamation. The court granted her motion with
respect to the $500,000 in actual monctary damages
but denied it as to the other compensatory damages
oa
Appendli K 4A
and the punitive damages, on the condition that
Kessler accept A remittitur decreasing
thecompensatory damages award from $1,500,000 to
$250,000 and the pumtive damages award from
$950,000 to $250,000 Kessler accepted — the
remittitur and the district court entered ae final
judgement
|
Riccard) first claims that the district court
erred in granting partial summary judgment to
Kessler on her retaliation claim. Tennessee state law
prohibit: individual from "retahatling] O1
discriminatiling] 1n any manner ayainst a person
because such person has opposed a | discriminatory]
practice." Tenn. Code Ann. § 4-21-3801. A plaintiff
alleging a retahation claim under the statute must
as with a Title VII claim, show "(1) that she engaged
in activity protected by the THRA; (2) that the
exercise of her protected civil rights was known to
the defendant; (3) that the defendant thereafter took
a materially adverse action against her; and (4)
[that] there was a causal connection between the
protected activity and the materially adverse action."
Allen v. McPhee, 240 S.W.3d 8038, 820-21 (Tenn
2007). If the plaintiff makes the required showing,
the burden shifts to the defendant "to articulate a
lemtimate, non-discriminatory reason for" the
adverse action. ld. at 821. And if the defendant
satisfies that burden, the burden shifts back to the
plaintiff, who "must present evidence demonstrating
that the articulated reason is pretextual and that
the defendant ICL) } ictuall I l¢
at re to retaliate aval t the empl]
K ley tay not (ij } it Lf iT | |
demonstrated Live lirst LwWO element | he)
||
revallation Clalliereporeul ney rite mmol t
Vanderbilt and filinyvy a complaint avain
amounted to protected achlivilie md Ke ler ky
about them. See R.144, 45. As for the five alleged!
retaliatory action mm which the district purt
granted ummary judgment, however Ricca
ittempt to show retahation falters after that p
Riccard: allege Lhat Kessler retahated
avainst her by"providing inadequate a Istance
with" her "Sex Differences Grant proposal." Riccardi)
Br 1/5 The tact Aa relaved by Riccard) how that
veral months after filing suit, Riccardi: soup
Kessler's assistance as she prepared to submit th
yrant proposal. Riccardi gave Kessler a draft of th
LA {
Propo: al Oll a lriday, bel VIN that doing OO WoULd
give Kessler sufficient time over the weekend = to
review it before the Monday submission deadline
Still awaiting his response on Sunday, Riccard
asked a university employee to call Ke ler on her
behalt at about 300 that afternoon Ke ley
responded by emailing Riccardi at 4:20, telling he:
that he "only now had the opportunity to carefully
read" her yvrant and offering several paragraphs of
and suggestions. App. 726-28. The cight
comment
te ‘ : ! ‘
[ re | ) | j ‘
} tif feed rethy tao ( (] t it i! I ‘
msput 1 tact Tf @ Lf]
t to , I r adralt _ (if } ('t)
bye VlIonda Hin 1] bad
} med j f ( t} rs (*T rersal
confidence that [her] st | produce ficant
r( it \py ' / ) heed (*] | reece {
holarship the are id hail bite thysat
1] be expla Cd re begin pp. 4 { ira
na hg ¢ agence | 1 tagbiate prey | Lhyait tr
Critique N i) | neaninegtul nd i ! rf pro (deed
i) aatay f t}) | b4y i¢ j thie r) i (*)
ordinaril monet ( D) re t } ( hit
minute re CW) rant I i! hey hi
( Kdence Lt Now thnt tl ( [) msaity) Hered toy)
} CoOnauct that } nad not? id Liryie | re | ‘ Liye
rant A ii prete l 1] ty ma ] . ws hey ! 1) (]
tne time col train? md 4 I wuld not rea bab
ay I threat | 1 ()] not | }) | I Ql Lye
eekend } lye] ra stil qd retaliator
. f
Ga
Appendix A
grant proposal she submitted to the NIH to obtain
funding to study autism. Ricc. Br. 48. Kessler
provided Riccardi with “one page" of comments after
reviewing her draft proposal. Ricc. Br. 49. The grant
was not funded, and the reviewers commented that
the background section was "difficult to follow" and
"not cogent," App. 721, and that the entire proposal
needed "careful editing,” App. 719. As Riccardi sees
it, the reviewers’ comments demonstrate that
Kessler retaliated against her, because he--as an
NIH grant reviewer himself-should "have warned
[her] that the reviewers would make such comments
and suggested meaningful ways to avoid such
criticism." Rice. Br. 49.
Riccardi has not demonstrated that Kessler's
supposedly inadequate assistance constitutes an
adverse employment action sufficient to sustain a
retaliation claim. Kessler's "one page" email—too
short to be helpful by Riccardi's estimate-suggested
that she correct various organizational and
substantive problems, including some of the same
problems mentioned by the reviewers. See, e.g., App.
715-16 (suggesting she edit the background section
to make it more "tightly focused"). Riccardi offers no
evidence that Kessler's feedback amounted to an
adverse action: She does not show, for example, that
Kessler's comments on grant proposals prior to her
complaint were significantly more helpful, nor does
she suggest what "meaningful" comments should
have looked hke
LOa
Appendix A
Riccardi fares no better on her claim that
Kessler retaliated against her by refusing to act as
the "mentor/sponsor" of her application for a Young
Investigator Award sponsored by NARSAD, an
organization that funds psychiatric research
projects. The NARSAD application requires a
"mentor/sponsor letter" "from an on-site
mentor/sponsor ... describing the mentor's/sponsor's
commitment to facilitate the specific research
proposal." R.82-2,2-3. Kessler declined Riccardi's
request that he assume that role, stating that, hght
of their strained relationship and her refusal "to
communicate with fhim] except by email," he "d[id]
not see how [fhe] could effectively fulfill the duties
required of a Mentor/Sponsor for this. project."
App.730. Based on his own experience as a member
of the NARSAD scientific council as well as a
conversation with a "senior member" of the
organization, he believed that he "would be required
to disclose [their situation] to NARSAD" a
Mentor/Sponsor's’ letter, which could have
threatened her chances of receiving the grant. R.82,
119.
Riccardi challenges the district court's
conclusion that these were legitimate, non-
retaliatory reasons for declining her request. She
says that his reason for declining the mentor/sponsor
role must be pretextual because the limits on their
communication did not hamper other projects they
worked on together. But evidence about other
lla
Appendix A
projects does not help her show pretext, because the
record shows that the NARSAD mentor/sponsor role
is more intensive than an ordinary co-investigator
role. See R. 82, ~ 19, see also App. 729. Riccardi
rejoins that she did not ask Kessler to be her
"mentor," just her “senior collaborator," which
purportedly would not have required as much one-to-
one contact. Rice. Br. 51-52. No matter the title, she
does not dispute that Kessler would have had to
submit a letter outlining his plans to support her
project and disclosing their lmited ability to
communicate. Her only response is that Kessler
obtained much of his understanding about the role of
a mentor/sponsor from conversations with an
undisclosed member of NARSAD, which Riccardi
classifies as inadmissible hearsay inappropriate for
consideration in a summary judgment ruling. But
because Kessler testified about his conversation with
a senior member of the NARSAD council to show the
basis of his belief that he could not help her, not for
the truth of the matter asserted, the conversation 1s
not hearsay and the district court did not err in
considering it. See Fed. R. Evid. 801 (c).
|).
Riccardi claims that Kessler retaliated by not
naming her as a co-investigator on his Vanderbilt
Discovery Grant proposal for a project on "dopamine
and depression." Rice. Br. 55. "[I]t was a very small
srant," Kessler explains, "with a very limited budget
and only the very most essential people could be
Appendix A
included on it," R.89-2 at 837, he "had to have
someone from the psychiatry department who would
recruit the depressed subjects" and "[t] here was not
enough money in the budget for anyone else." R.89-2
at 837. addition, "the grant program required
participation by two Vanderbilt departments," so
"the ... investigator on the budget [other than
Kessler] had to be from a department other than
radiology"—the department in which Kessler and
Riccardi worked. R.82, 423. He added that, at the
time he prepared the grant, "collaboration" with her
“had been exceptionally difficult," presumably
because of the restrictions placed on _ their
interaction, R89-2 at 837, and explained that the
project was small enough that he would perform the
PE'T scans himself. /d. Other than claiming that this
grant was related to a larger NIH grant on which
she was a co-investigator and that she would have
worked for free, Riccardi offers no evidence to show
that these non-retaliatory reasons were pretextual.
Rice. Br. 56—-7.
EK.
Riccardi argues that Kessler wrongfully
withdrew his support of her "Borderline Personality
Grant" proposal “as a result of [her] complaint." Ricc.
Br. 41—42. According to Riccardi, Kessler agreed to
serve as her co-investigator for the grant in March
2005, several months prior to her June 2005
complaint to Vanderbilt authorities. He reviewed the
draft proposal, provided Riccardi with feedback and
even offered her money from his own grant funding
13a
Appendix A
so that Riccardi could obtain preliminary data for
her proposal. Riccardi finished her proposal by June
2005, but decided to wait to submit it until the next
funding cycle rolled around in early 2006.
As she prepared to submit her proposal during
January and February of 2006, Riccardi, through
Kessler's secretary, asked Kessler to confirm that he
would serve as co-principal investigator signing
paperwork for the proposal. Kessler's attorney
informed Riccardi that Kessler "[did] not intend to
do this." App.635. Riccardi submitted the grant
without Kessler's (or any other faculty member's)
assistance, and the grant was not funded. One grant
reviewer commented on her junior status, noting her
failure to list "either an established psychiatric co-
investigator, or a PET co-investigator ... as part of
her team." App.704.
Kessler provides a legitimate non-retahatory
reason for his refusal. The project, Kessler says,
involved administering medicine that could
exacerbate the test subjects' underlying conditions,
and he was concerned about patient safety. In.
addition, he claims that Riccardi did not provide him
a copy of the proposal in January 2006, so he could
not, without running up against ethics rules, sign off
without thoroughly reviewing and understanding
the "essential aspects" of her project. R.82, 415.
These reasons must be pretexual, Riccardi insists,
because Kessler reviewed the proposal
approximately ten months earlier and agreed to
l4a
Appendix A
serve as co-investigator without any mention of
safety or ethical concerns. But this argument does
not satisfy her burden of showing pretext, as she has
not offered proof that the proposal remained in the
same form as it was in June 2005, claimed that she
provided Kessler with a copy of the grant in January
2006 or shown that it would have been ethically
appropriate for Kessler to sign off on the proposal
without re-reviewing it.
Riccardi suggests her reply brief that Kessler's
safety concerns about the grant are pretextual
because Kessler "agreed to serve as co-investigator
on two offher ] other grants ... which were simular in
nature to the [grant] in terms of any potential 'safety
issues. ' Rice. Reply 3. Because she did not raise this
point in the district court or in her initial brief, she
has forfeited it. See Moulton v. U.S. Steel Corp., 581
3d 344,354 (6th. 2009).
III.
Riccardi challenges three of the district court's
evidentiary rulings, which we review for abuse of
discretion. See Biegas v. Quickway Carriers, Inc.,
573 F.3d 365,378 (6th Cir. 2009).
A.
The district court did not err in permitting
testimony that Riccardi told Kessler about her prior
sexual relationships. Though "evidence offered to
15a
Appendix A
prove" any alleged victim's "other sexual behavior"
or "sexual predisposition" is generally inadmissible,
the district court may allow such evidence if "its
probative value substantially outweighs the danger
of harm to any victim and of unfair prejudice to any
party." Fed. R. Evid. 412(a)(1)-(2), (b)(2). Kessler's
defense to Riccardi's allegations was that the two
were in a consensual sexual relationship. Elciting
testimony about what Riccardi told Kessler about
her past sexual relationships, then, was probative as
to whether the two had the type of personal
relationship in which Riccardi would disclose
intimate details of her personal life. We cannot say
that the district court exceeded its discretion in
determining that the probative value of evidence
going to the lnchpin of Kessler's defense
substantially outweighed the potential for unfair
prejudice to Riccardi. Riccardi's alternative
argument that the district court should have
excluded the evidence on Rule 404(b) grounds adds
no merit to her objection. Rule 404(b) prohibits
"evidence of other ... acts" "to prove the character ofa
person in order to show action in conformity
therewith." Fed. R. Evid. 404(b). It does not,
however, bar evidence of prior acts for other
purposes—such as to show that Riccardi shared
personal details of her life with Kessler.
B.
Nor did the district court abuse its discretion
in denying Riccardi's motion to admit evidence that
16a
Appendix A
Kessler shifted assets and accounts to his wife's
name and sold property around the time Riccardi
made her complaint to Vanderbilt authorities.
Riccardi suggests that the evidence should have
come in to show that Kessler “engaged in a pattern
or scheme to evade responsibility for his actions"
once he suspected Riccardi might bring claims
against him. Ricc. Br. 69. Even if this evidence could
have shown that Kessler wanted to "evade
responsibility" by protecting his assets from an
unfavorable judgment, it would have been of little
relevance to the ultimate issues in this case-whether
Kessler committed battery, intentionally inflicted
emotional distress or retaliated against Riccardi.
The district court therefore did not abuse its
discretion in omitting evidence of such attenuated
relevance.
U
Riccardi's remaining evidentiary challenge
that the district court incorrectly permitted "hearsay
evidence consisting of statements [Kessler] made to
others ... that he had an intimate relationship with
[Riccardi]," Rice. Br. 63-is unavailing. The district
court permitted Kessler to testify that he told his
boss and his wife that he was having an affair, citing
the prior consistent statement exemption from the
hearsay rule. See Fed. R. Kvid. 80 I (d)( 1). An out-of-
court statement "consistent with" in-court testimony
is admissible under Rule 80I (d)( 1) if the out-of-
court statement "is offered to rebut an express or
l7a
Appendix A
implied charge against the declarant of recent
fabrication." Id. Throughout the trial, Riccardi tried
to prove that Kessler was lying when he claimed
that their relationship -had been consensual.
Therefore, Kessler offered testimony that he told his
wife and his boss of their purported affair months
before Riccardi complained to Vanderbilt authorities
for the proper purpose of rebutting Riccardi's claim
that he lied about the affair to protect himself. No
doubt, it is possible that Kessler made up the affair
and confessed it to those close to him to take the
sting out of Riccardi's future sexual harassment
claims, but the theory is sufficiently speculative that
we cannot say the district court abused its discretion
in rejecting it.
Riccardi gets nowhere with her challenges to
other witnesses' testimony regarding what Kessler
told them about his relationship with Riccardi.
Because her attorneys did not object at trial to
Martin Sandler's and Craig Oxford's testimony, she
has forfeited this argument. And because her
attorneys elicited testimony from Ingrid Kessler
about Kessler's out-of-court statements, R.264, 756-
57, Riccardi cannot now maintain the court erred in
allowing that testimony. See All Am. Life & Cas. Co.
v. Oceanic Trade Alliance Council Int '1, Inc., 756 F
.2d 474, 479-80 (6th Cir. 1985).
y
j
j
Riccardi next challenges the district court's
18a
Appendix A
denial of her post-verdict motion for judgment as a
matter of law on Kessler's defamation claim. She
claims that Kessler did not present a_ legally
sufficient evidentiary basis for a reasonable jury to
find that he suffered actual injury as a result of her
allegations, which she _ discussed with other
colleagues at Vanderbilt and reported to the
American Association of University Women. (She
does not contest the sufficiency of the evidence as to
any of the other elements of a defamation claim, nor
does she argue the reasonableness of the punitive
damages award.) ''aking, as we must, the "strongest
legitimate view of the evidence in favor of’ Kessler,
we may reverse the district court's denial of
Riccardi's motion only if "a reasonable mind could
draw but one conclusion": a conclusion in Riccardi's
favor. Arms v. State Farm Fire & Cas. Co., 731 F.2d
1245, 1248 (6th Cir. 1984).
To recover damages on a defamation claim
under Tennessee law, a party must prove "actual
injury" resulting from the allegedly defamatory
statements. Memphis Publ'g Co. v. Nichols, 569
S.W.2d 412,417-19 (Tenn. 1978). "[A]ctual injury is
not limited to out-of-pocket loss," and may "include
impairment of reputation and standing in the
community, personal humuliation, and mental
anguish and suffering." Id. at 416. But "anger, mere
annoyance or loss of peace of mind" may not be
sufficient to demonstrate actual injury. See Murray
v. Lineberry, 69 S.W.3d 560, 565 (Tenn. Ct.
App.2001).
19a
Appendix A
Viewing the evidence in Kessler's favor, a jury
could reasonably have concluded that Kessler
experienced sufficient anguish, humiliation and
suffering as a result of Riccardi's allegations to
amount to a compensable "actual injury." Kessler
testified that Riccardi's allegations of rape were
"extremely stressful"; were "like a cloud that hangs
over you and pushes you down and zaps your
energy"; made him "depressed somewhat, anxious
somewhat" and “unable to work to get [his] funding
yoing"; caused him to “wonder ... how many job:
positions {he was] not being considered for because
people think [he's] a rapist, a crazy person, a sexual
harasser"; R.242 at 101-102, and triggered ongoing
problems sleeping at night, id. at 139
In addition to Kessler's testimony, othe:
record evidence lent support to the reasonableness of
the jury's conclusion that Kessler's injuries went
beyond mere embarrassment, annoyance or anger
Riccardi's allegations, for one, prompted a lengthy
internal investigation into Kessler's personal life at
Vanderbilt. When she recounted her allegations to
the American Association of University Women, the
organization posted them on its website. Kessler'
colleagues ran across the website and alerted him to
it, bolstering the legitimacy of Kessler's belief that
the allegations were widely known and_ that
Riccardi's allegations had diminished his reputation
See Myers v. Pickering Firm, Inc., 959 S.W.2d 152,
165 (Tenn. Ct. App. 1997) (finding actual injury in
‘Wa
Appendix A
part because the evidence showed that plaintiff
beheved hi reputation was tarnished by the
defamatory statements). light of the web publication
and the intensive investigation prompted — by
Riccardi's complaints, this case is different from
Tennessee cases in which the plaintiff suffered only
"mere annoyance" or “humilhation"” insufficient to
prove actual injury. See Handley v. May, 588 S.W.2d
772, 776-77 (Tenn. Ct. App. 1979) (no actual injury
when there was "no evidence whatsoever of any
Impairment of reputation and/or standing in the
community" and the evidence showed that plaintiff
was “under mental stress and strain independent of
the defamatory utterance"): Dowlen v. Mathew No
M2001-03160-COA-R3-CV,2003 WL 112955, at*5
(Tenn. Ct. App.Aug. 25, 2003) (no actual injury from
defendant's false statements about a police officer
because he did not demonstrate harm "risling| above
anger, mere annoyance or loss of peace ofmind," nor
did he show that the false statements led to the
officer undervoingy an “internal investigation
"disciplinary action,” or any "cuts in pay, demotion:
or suspensions"). Because the evidence was legally
ufficient to sustain a damayes award, the district
court did not err 1n de nyinyv Roccard)' motvlo)
Lastly, Riccard) claims that the district court’
decision to grant Kessler's pre-verdict motion for
judyment as a matter of law on Riccard)'s remaining
two allegation of retaliation-those urroundinyg
Kessler decisions not to include Riccard)
Methamphetan Ine (orant ind on hi ik pera
Contract.” When rewewing wdegment a romatte)
of law in i diversit 1S 6 NV ( ipp !
tandard the forun Lace WOULd ippl I SCN)
Willingham bh] Cd or 1) 4 (Oth Coy eke
which mean tah ryf7] thie lronre f jeoytimate
ol tne { Mdence IT) i I 1 tre it I] J
construiny all « ery Lhoat rt ] I
disregarding ii] unte? iii 1d ’
reversing the judgment
could reach ()!T ly (Tif conclu I if J thy f a1 f
Johnson ennessee karmers Mut. [1
W 3d Aa {0 ben Cyye +
Methamphet Ty} iL (orn t i (] i! (*)
( ntract r)t*) ha rt I) cry
K tbmitted tI let pI
rramt proposa Lo the dH (Qctobpe! AULE, lt rye
f eral other Vanderbilt la ijt nemoel
I VeESLIVALo! nut did not f (i¢ It i}
UJriMa! qayment } a | eos (] A
retahator rea yy lor | ict ee nat ] eae
did not have Lire required ¢ nertysei | Lrye rant
ubject matter: and (2) that the om mall budget
could not accom) date Riccard wcceardy) ntered
that these reasor ere pretextual, becauss me Tae
ilwa been o1 rants before, even if she did not
have the nec ry expertise, and bi is the
, 4 if | | ’ / ;
buinity | rk on tl | ,
}? | ! I | , ul ul
, 14 rif | Ley ul
precluded summa : ieee Abe ag
} rails : a
) wy (| It] |
' rytil ‘ |
maert { mut ri | . ,
| ne higs ) ee a 1
‘ / My
:;
P aS va ; that f / {
( eae - saints | .
‘ay |
; ’ tt t redu
j { | . me | |
’ : | (hh her 4 | ' ,
er paper U | | , st ov
( t | : ¢ - 7
e presente qa ul
, | +) expected 1 Ab
essler's PI'T-relate is. | ied
rie rl | wteds me
fey? | H ) |
| , j ‘ , ron f f f I
| lor f | | ' | | a
moh bid) | |
6) 2 «
Lat JC
4
Appendix A
Riccardi's belief, that proves only that she did not
work solely on Kessler's grants, not that she did not
expect to be on all of his grants. Because the same
questions of fact that precluded summary judgment
remained unresolved at the close of the evidence,
and because "doubt existi|ed] as to the conclusions to
be drawn from [the] evidence," Johnson, 205 S$.W.3d
at 370, the jury, not the district court, should have
determined whether Riccardi's claim had merit.
Kessler tries to save this part of the judgment
by claiming that the lhngering questions about
pretext do not matter, because Riccardi failed to
show an "adverse action" and therefore never
established a prima facie case of retaliation. ‘he
evidence showed that the grant was never funded,
Kessler argues, so failing to include Riccardi on the
srant was not an adverse action, as it did not hinder
her in the end from meeting her funding
requirements. The district court apparently agreed,
noting when granting the Rule 50 motion that any
"damage" Riccardi incurred was “ethereal and
speculative." App. 1232
But Kessler—and the district court-overlooked
a crucial factual issue. The grant might not have
received funding, but Riccardi testified that even
working on an unfunded grant proposal would have
advanced her career. From that, a jury reasonably
could have found that being excluded from carecer-
building, albeit unfunded, grant work "well might
have dissuaded a reasonable worker from making or
24a
Appendix A
supporting a charge of discrimination," Allen, 240
S.W.3d at 820 (quoting Burlington Northern and
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006),
and therefore constituted an adverse action.
Kessler's rationale-that his actions did not really
harm Riccardi because she never would have
received funding from the grant anyway--contains
another flaw. It is after-the-fact reasoning that
contains its own dose of speculation about whether
the action was adverse to Riccardi at the time it
occurred. See Burlington Northern, 548 U.S. at 72-
)
73 ("an indefinite suspension without pay could well"
be an adverse action "even if the suspended
employee eventually received backpay")
The district court erred along similar lines in
granting Kessler's Rule 50 motion with respect to
the "Risperidone Contract." ill December 2006,
Kessler signed the contract, which provided funding
to conduct PET scans” of individuals’ with
schizophrenia. Kessler did not seek Riccardi's—or
anyone else's-assistance in preparing the funding
application, claiming that "1t was far simpler just to
write it" himself. R.89-2 at 13. The district court
denied summary judgment, noting that the project
was similar to other work he and Riccardi had
worked on together and that, although Kessler
prepared the application on his own, another
colleague, Dr. Robert Shelton, was lsted as a co-
investigator, which "|gave] rise to an inference that
20a
Appendix A
Kessler's stated reason for not including" Riccardi—
"that 1t was just too much trouble"-was pretextual.
R.133, 34. At trial, Kessler testified that no one other
than himself was listed on the Risperidone Contract,
purportedly to provide a legitimate non-retaliatory
reason for excluding Riccardi. When Riccardi's
counsel confronted him with the fact that Shelton
was listed as a co-investigator with a salary on the
"proposal transmittal fonn," R.242 at 1 ~9, Kessler
claimed that another Vanderbilt employee-not he-
put Shelton's name on the apphcation. Even though
Riccardi's name was not on the proposal, Kessler
continued, she would not have been excluded from
working on the Risperidone Contract once work
began on it, but work had been delayed by the
company funding the project
Kessler's testimony that nothing would have
prevented Riccardi from working on the contract
yan does not dispel the inferences of
once work beg
pretext identified by the district court at summary
judgment. Riccardi claims that Kessler retaliated
against her by leaving her name off the proposal,
and a number of facts related to this complaint came
out at tmal that the jury should have hed the
opportunity to weigh, namely: (1) that Riccardi was
included on all of his PE T-related projects between
September 20038 and June 2005; (2) that he did not
ask her to work on either of his PET projects
afterward; (3) that the Risperidone contract was
related to thew other work; and (4) that someone
else's name was placed on the proposal, suggesting
26a
Appendix A
that he readily could have done what he previously
always had done: include Riccardi's name.
Kessler opposes this conclusion on two fronts,
claiming that a jury could not have concluded that
Kessler's conduct was an "adverse action" and that
Riccardi offered nothing to support her claim of
pretext. Leaving Riccardi's name off the project was
not an adverse action, Kessler insists, because work
on the project was delayed. But as with the
Methamphetamine Grant, this reality does not
undermine Riccardi's prima facie case. There was
evidence after all that having one's name on projects
is a career benefit. As to pretext, Kessler insists that
Riccardi cannot rebut a purported non-retaliatory
reason for his action-that he did not exclude Riccardi
from work because no one had started working on
the project. But any project delays do nothing to
eliminate the harm of being left off the grant. The
district court erred when it did not allow the jury to
decide these lingering questions.
(Kessler, we should note, appears to dispute
the premise of our reasoning, claiming that "Riccardi
does not complain that her name was not included
on the Risperidone Contract ... only ... that she did
not do any work on that Contract," Kessler Br. 40.
We are not sure where Kessler gets this idea, as the
cited transcript pages do not mention the
Risperidone Contract and our review of the trial
transcript reveals nothing to that effect. But even if
Riccardi at some point suggested that she was only
21a
Appendix A
complaining about not getting to work on a yet-to-
begin project, there is certainly contrary testimony
indicating that Kessler's decision not to include her
name on the contract formed the basis of her
complaint and her papers before both the district
court and this court confirm as much, see R.95, 38-
39, Rice. Br. at 61, Rice. Reply at 19 ("[Kessler's]
retaliatory conduct was in excluding me from the
Risperidone contract proposal").)
Two final points. One, the reader may wonder
why the parties-and the district court-treated the
various adverse actions in this case as distinct
claims as opposed to one claim with aggregated
harms. We had the same question. The answer is
that this is how the parties presented the case. And
because the parties chose to structure the case in
this manner and because no party has complained
about this aspect of the case on appeal, we need not
decide whether thelr assumptions about’ the
appropriate structuring of this case are correct.
‘Two, we have asked Robert Rack, the head of
the Office of Circuit Mediators, to contact the parties
to determine whether they may wish to mediate the
two claims left in this case. The mandate as a result
will not issue until the parties successfully mediate
the case or determine that they no longer wish to to
resolve their differences through court-sponsored
mediation.
VI.
28a
Appendix A
For these reasons, we affirm the judgment,
except with respect to the district court's grant of
judgment as a matter of law on the two retaliation
claims tried before a jury, which we reverse and
remand.
APPENDIX B- MOTION OF APFELLANT TO
AMEND APPELLANT'S BRIEF AND ORDER
DENYING MOTION TO AMEND APPELLANT'S
BRIEF, ISSUED JULY 29, 2008
28a
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
PATRIZIA RICCARDI,
Appellant-Defendant
No: O8-5234
ROBERT KESSLER,
Appellee-Plaintiff
— — — eee Nee ee”
MOTION OF APPELLANT TO AMEND
APPELLANT'S BRIEF
Dr. Patrizia Riccardi ("Appellant") moves to the
Court to amend Appellant's brief based on
discovered information that Judge Wiseman and
Judge Brown had conflicts of interest precluding
them from acting as impartial Judges in this matter
because of their ties to Vanderbilt University, a
defendant in the case and an employer of Appelle.
Therefore, Appellant was denied a fair trial and
moves to amend the brief to assert this additional
basis for granting Appellant a new trial.
1. On July 10th and July 11th 2008, Appellee sent a
certified letter to Appellant which was received on
July 17th requesting an extension of time to file his
29a
Appendix B
brief and requesting the Appendix Appellant. 2.
Appellant filed her notice of appeal on February 25,
2008.
3. Appellant's bref was due on May 5, 2008.
Appellant sought an extension of time and was
granted one extension of time to file her brief on
June 5th, 2008.Contrary to Appellee's
misrepresentation, Appellant only requested one
extension and timely served her brief on June 5th
2008.
4. Appellant filed a motion for leave to file of 86
pages of brief on June 5% 2008. The Court granted
the motion on June 24th 2008.
5. Appellee's brief was due on July 8th, 2008.
Appellee also misrepresents the date that their brief
was due. I have no objection to their request but |
only want to bring Appellee's lack of candor to the
attention of the Court.
6. Appellant moves to the Court to file an amended
brief and will send the amended version with the
Appendix to Appellee as well.
Respectfully submitted,
Patrizia Riccardi, MD
CERTIFICATE OF SERVICE
| hereby certify that a true and correct copy of the
foregoing has been sent via U.S certified mail to
30a
Appendix B
Kevin Sharp,
DRESCHER AND SHARP, P.C.
1720 WEST END AVENUE, SUITE 300
NASHVILLE, TENNESSE 37212
Case No. 08-5234
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER
ROBERT KESSLER,
Plaintiff -Appellee
PATRIZIA RICCARDI,
Defendant -Appellant
Upon consideration of the appellant's motion to
amend brief,
It is ORDERED that the motion be and it hereby is
DENIED. The court of appeals is a court of review
and it will not consider information not previously
presented to and considered by the district court
ENTERED PURSUANT TO RULE 45d(a), RULES
OF THE SIXTH CIRCUIT
Leonard Green, Clerk
Issued: July 29, 2008
APPENDIX C - ORDER, MEMORANDUM
OPINION, ISSUED BY THOMAS A. WISEMAN,
JR., U.S.D.J., DATED 08/08/2007
3la
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DR. PATRIZIA RICCARDI
Plaintiff,
Civil Action No
3:06cv0605
VANDERBILT UNIVERSITY
MEDICAL CENTER,
and DR. ROBERT KESSLER,
and DR. MARTIN SANDLER,
individually,
Defendants.
i i
ORDER
Before the Court are two motions: (1) the
Motion for Summary Judgment filed by Defendants
Vanderbilt University Medical Center (“Vanderbilt”)
and Dr. Martin Sandler (“Sandler”) (Doc. No. 66),
seeking judgment in their favor on all claims
brought against them by Plaintiff Dr. Patrizia
ticcardi, including claims against Vanderbilt for
sexual harassment by a supervisor and retaliation in
violation of Title VII and § 4-21-301 of the Tennessee
Human Rights Act, Tenn. Code Ann. (“THRA”), and
Cc.’
against Sandler individually for retahation in
3Za
Appendix C
violation of the THRA;: and (2) the Motion for Partial
Summary Judgment (Doc. No. 75) by Defendant Dr.
Robert Kessler (“Kessler”), seeking summary
judgment as to the THRA retaliation claim asserted
against him individually.
l‘or the reasons set forth in the accompanying
Memorandum Opinion, the Court finds that
Vanderbilt's and Sandler’s motion should be granted
in part and denied in part. Specifically, the motion
for summary judgment as to the sexual harassment
and retaliation claims against Vanderbilt is hereby
DENIED on the grounds of disputed issues of
material fact, but the motion for summary judgment
as to the THRA retahation claim against Sandler }
GRANTED and that claim DISMISSED. Defendant
Kessler’s motion for partial summary judgment
DENIED.
Itis so ORDERED.
Thomas A. Wiseman, Jr.
Senior U.S. District Judge
$7)
Appendix ©
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLIE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DR. PAT RIZIA RICCARD I
Plaintiff )
VANDERBILT UNIVIECRSITY — )
MEDICAL CENTER,
and DR. ROBICRT KIicSSLIER
and DR. MARTIN SANDLER, )
individually
Defendant
MEMORANDUM OPINION
Before the Court are two motion (1) the
Motion for Summary Judyment filed by Defendant
Vanderbilt University Medical Center (“Vanderbilt”)
and Dr. Martin Sandler (‘Sandler’) (Doc. No. 66)
eeking judgment in their favor on all claim
brought against them by Plaintiff Dr. Patrizia
Riccardi, including claims against Vanderbilt fo
exual harassment by a supervisor and retaliation in
violation of Title VII and § 4-21-3301 of the Tennessee
Human Rights Act, Tenn. Code Ann. (°THRA”), and
against Sandler individually for retaliation in
violation of the THRA;: and (2) the Motion for Partial
Summary Judgment (Doc. No. 75) by Defendant Dr
Robert Ke ler (“Ke ler’) eekineg ummary
ment a | the THR revalliat rt
wWaInst nin ndiviadua I} ( ! i} i f
premised Dor tne ederal quest pore nted
yell as the complet () I it] Lhe | roi
rhe n tO na 1) 1} nrye i j re
ripe for considerats me) [ reason ct t!
belov the Court find Chiat anderbilt
mdier motion Hould be y ited ' part y
denied nm part pecihy | t } r} fion {oy , nap
yuayme if i Li Le f i] nara rit | (
retahation clain MrPaIst mderbilt wall be ed
but thi notion for nimal mudgment f thie
HIRA retahyat l pit i pst i [
rranted and that claim ]
Oy parbial i! ! id nent | yer (
I STANDARD OF REVIEW
Under Rule df ithe I of ©)
Procedurt imma? pue nent f
thi plead depositio nswe f
Mmerrovavort nd ad i | | root] !
the affidavit fay that { ( '
Li¢ i { il) nave) a} fact i t? tT Tye j
arty ( titied te nent } tte} |
ract. i} maternal and pi bile rit | 1)
mé tal prool that ] f {} ‘
‘
, }
( i? i é . .
i} . ; |
| [|
pplica Pappropriate pr pee <n
, f } ? r Pye ‘ }
Hla / ( / tT ‘ ! }
( Ane | ) | ' /
Batra «i? 17 { | | |
50a
Appendix C
some evidence on a disputed issue. As the United
States Supreme Court has stated, “|t]here 1s no issue
for trial unless there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for
that party. If the [nonmovant's] evidence is merely
colorable, or 1s not significantly probative, summary
judgment may be granted.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations
omitted). The standard for summary judgment
mirrors the standard for a directed verdict under
US at 250.
Rule HO(a). Anderson. +f
Consequently, a nonmovant must do more than raise
some doubt as to the existence of a fact; the
nonmovant must produce evidence that would be
sufficient to require submission to the jury of the
dispute over the fact
Il. FACTUAL BACKGROUND
A. The Partie:
Vanderbilt Is a private, not-for-profit
corporation organized under ‘Tennessee law. It 1s
divided into various schools and colleges including
the School of Medicine. The School of Medicine is
further divided into various departments, including
the Department of Radiology and Radiological
Sciences (“Radiology Department’) Within
departments there are also divisions of more
specialized concentrations. Physicians employed by
Vanderbilt are frequently appointed to both faculty
and to clinical positions in which they see patients
some taculty members concentrate on research ana
» he
ee:
Appendix C
others divide their time between research and
clinical care. At all times relevant to Plaintiff's
claims, the Dean of the School of Medicine was
Steven Gabbe, M.D.
The Radiology Department includes both
physicians and basic scientists who hold non-medical
degrees in fields such as physics. A significant
number of the physicians in the’ Radiology
Department are engaged in various’ research
activities that are funded through grants awarded by
by the National Institutes of Health (“NIH”) and
other organizations. Members of the Radiology
Department faculty are expected to obtain funding
from research grants to support a significant portion
of their salary. Generally, all non-tenured research
faculty are expected to obtain support for at least
75% of their salary from outside funding sources
within three years of being appointed to the faculty.
Defendant Dr. Martin Sandler has been
employed by Vanderbilt as a member of the faculty
of the School of Medicine since 1983. At all times
relevant to this dispute, he was Chairman of the
Radiology Department and Defendant Dr. Robert
Kessler’s direct supervisor. Sandler was promoted to
the position of Associate Vice Chancellor for Hospital
Affairs in July 2006.
Defendant Kessler was initially appointed to
he faculty of the School of Medicine in the Radiology
Department in 1984 as Associate Professor with
tenure. He was promoted to the position of full
38a
Appendix C
professor within several years, and in August 2004
was named to the Roentgen Chair of the Radiology
and Radiological Sciences. He is a renowned scholar
with a lengthy lst of publications; he was
responsible for the design and_ start-up of
Vanderbilt’s Positron Kmission Tomography (“PET”)
Center and is the Director of Vanderbilt's Center for
Molecular Imaging. In 2003, Kessler was awarded a
substantial, multiyear research grant by the NIH to
conduct research into certain brain functions
affecting schizophrenia, drug abuse, attention deficit
disorder, depression and other mental disorders
utilizing a radioactive “marker” known as
[18k ]fallypride and PET technology (the “AMPT
Grant’).
Plaintiff Dr. Patrizia Riccardi is a medical
doctor in the field of psychiatry who is currently
employed by Vanderbilt as a Research Assistant
Professor in the Center for Molecular Imaging
within the Radiology Department. Plaintiff is an
Italian citizen who received her medical education
and training primarily in Italy. She moved to the
United States in 1995 and, prior to coming to
Vanderbilt, had accepted a f
University Medical School
ellowship al Yale
Plaintiffs affillation with Vanderbilt began
when she applied for and accepted an appointment
as a Research Fellow in the Radiology Department
at Vanderbilt beginning in September 2003.
7
Abandoning her fellowship at Yale, Plaintiff
accepted the fellowship at Vanderbilt in a part-time
39a
Appendix C
(50% effort) position at a salary of $58,000 per year,
as Plaintiff planned to continue to spend most of her
time in New York and Connecticut, where she
conducted a clinical practice, and only the last ten
days of each month in Nashville. Plaintiff asserts
that the major reason she came to Vanderbilt was
that she beleved she could obtain’ valuable
experience training with Kessler, who was one of the
few scientists in the United States who specializes in
the field she wished to pursue, PET. Plaintiff
asserts she was recruited specifically to work with
Kessler on his AMPT Grant and other’ work
involving PET technology. There is no dispute that
Plaintiff and Kessler worked closely together from
September 2003 through June 2005, during which
time Kessler functioned as Plaintiffs mentor and
advisor as well as her direct supervisor.
Plaintiff completed her fellowship at
Vanderbilt in the spring or summer of 2004 and
accepted a one-year term position as Research
Assistant Professor in the Radiology Department,
without tenure, effective July 1, 2004 through June
30, 2005. Her appointment was for a 50% effort,
referred to as “fulltime, partial-load status,” which
made her eligible for full faculty benefits, and her
initial salary in that position was $65,000. From the
outset, however, the terms of Plaintiffs employment
required that she become 75% funded within a three-
year period of her faculty appointment, or by July 1,
2007, in order to ensure renewal of her contract.
Plaintiff has known since her initial employment
that her faculty appointment would likely not
40a
Appendix C
continue to be renewed after that date unless she
was able to fund 75% of her own salary through
outside sources by then. One potential source of
outside funding was to obtain her own grants to pay
a portion of her salary, or to contribute to other
faculty members’ grants, which would also pay a
portion of her salary.
After completion of her fellowship and
beginning work as assistant professor,
Plaintiffecontinued to work in Nashville only ten days
per month. She was reappointed to the same
position, under the same terms, for two subsequent
one-year periods, from July 1, 2005 through June 30,
2006 and from July 1, 2006 through June 30, 2007.
She was recently reappointed on the same terms for
the period from July 1, 2007 through December 31,
2007, even though Plaintiff has not succeeded in
")
obtaining 75% funding of her salary.
Z Plaintiff only submitted one grant herself prior to June
2005, which was not funded, and none of the grant proposals
she has submitted since June 2005 have been funded either.
Nonetheless, Plaintiff received a letter dated May 3, 2007 from
Steven G. Gabbe, M.D., Dean of the Medical School, notifying
her that he had approved an extension of her current
appointment based upon the recommendation of Dr. Jeremy
Kaye, who succeeded Sandler as Chair of the Radiology
Department in July 2006. (Doc. No. 742, at 1; Doc. No. 69, at
42.) Plaintiff had previously received a Jetter from Dr. Kaye
dated February 26, 2007 reminding her that reappointment to
the Radiology faculty for fiscal-year 2007 was contingent on her
obtaining 75% funding of her salary from outside sources,
including grants, which she had not done Dr. Kaye
nonetheless recommended extending her appointment an
4la
Appendix C
B. Plaintiffs Relationship with Kessler
Plaintiffs primary job duties at Vanderbilt
from 2003 through June 2005 involved working with
Kessler on the AMPT Grant. Plaintiff also asserts
she was expected to work exclusively with Kessler on
his grants and was recruited by Kessler for this
purpose, and that Kessler was expected to contribute
to her grant work as well, both because he was her
mentor and supervisor and because he was the only
scientist at Vanderbilt specializing in PET who could
assist with her grant work.
She alleges that Kessler began sexually
harassing her and subjecting her to a severe and
pervasive hostile working environment in November
2003. The parties do not dispute, for purposes of the
Defendants’ motions, that there is a material
question of fact as to whether Kessler sexually
harassed the Plaintiff and as to whether the alleged
harassment was sufficiently severe and pervasive to
support a prima facie case under Title VII or the
THRA, as discussed below. Plaintiff claims she did
not initially report her alleged problems’ with
Kessler because he is a renowned expert in the field
additional six months based upon the fact that she had a grant
application pending at that time, her work on the AMPT grant
had been extended until July 31, 2007, and she had two
manuscripts in preparation for publication. (Doc. No. 9315.)
The extension was ostensibly intended to give her time to
complete work on pending projects, to continue seeking grant
funding and, alternatively, to seek employment elsewhere.
(/d.)
42a
Appendix C
of neuroimaging while she was just beginning her
career in that field, and she was aware that he had
the “power and influence to destroy her career at
Vanderbilt or anywhere else.” (Doc. No. 93, Affidavit
of Dr. Patrizia Riccardi (“Riccardi Aff.”) § 20.)
According to Plaintiff, her work schedule was
adversely affected by Kessler’s harassing behavior in
that she had to work longer hours to complete her
work because Kessler would distract her, and she
eventually changed her schedule to work later hours
in an effort to avoid him.
Kessler, on the other hand, denies engaging in
any sexually harassing behavior and _ instead
contends that he and Plaintiff conducted a
consensual sexual relationship that began in
January or February 2004. (Plaintiff denies ever
having sexual relations with Kessler.)
In November 2004, Kessler called Defendant
Sandler, then Chair of the Radiology Department,
late one evening to report that he had been having
an affair with Plaintiff for approximately a year and
that they had had a bad break-up. He met with
Sandler the next morning and relayed to him more
details about the alleged affair, and reported that it
had ended badly after he had told Plaintiff that he
would not divorce his wife and that he and Plaintiff
needed to end their relationship. According to
Kessler, Plaintiff became very upset about this and
physically attacked him. Kessler showed Sandler
what he alleged to be bruises and large bite mark on
his forearm inflicted by Plaintiff. Kessler also
43a
Appendix C
assured Sandler that the affair was over, that it
would not happen again, and that he felt that he and
Plaintiff could disengage their relationship and
continue to collaborate effectively as colleagues.
Finally, Kessler relayed to Sandler that Plaintiff did
not want Sandler to discuss the issue with her since
she was embarrassed about it and felt it would make
it difficult for her to continue to work in the
Radiology Department.
Sandler has testified that, based on his long-
standing relationship with Kessler, he had no reason
not to believe Kessler. Based on Kessler’s
representations that the relationship was over,
Sandler decided not to take the matter to the Dean
or to confront Plaintiff about it. He told Kessler,
however, that he would watch the two of them
closely and, if the relationship resumed, he would
have no choice but inform the Dean about the affair.
Sandler also testified that, while the
Vanderbilt Faculty Manual addresses the
impropriety of sexual relationships between faculty
members and students, it does not expressly address
the issue of consensual relationships between faculty
members or between faculty members and fellows,
who are neither facuity nor students. Moreover,
although Plaintiff had been a fellow when the
relationship commenced, Plaintiff was a atypical in
that she was in her late 40s at the time, a board-
certified Psychiatrist and had been a _ practicing
physician for approximately twenty years before
44a
Appendix C
coming to Vanderbilt. Thus, Sandler maintains that
nothing in the Faculty Manual required that he
advise anyone outside the Radiology Department of
the relationship between Kessler and Plaintiff, as
reported to him by Kessler, despite the fact that both
Sandler and the Vanderbilt community generally
regarded a consensual relationship betwee \ a senior
faculty member and a fellow or junior faculty
member as inappropriate. In any event, as a result
of Sandler’s decision, Plaintiff did not become aware
that Kessler had (falsely, according to her) reported
the existence of a sexual relationship to Sandler
until sometime during the course of this lawsuit.
Plaintiff met with Sandler in early December
2004, shortly after Kessler reported the alleged
relationship and bad break-up to him. ‘The initial
purpose of the meeting was to discuss a dispute
Plaintiff had had with Kessler regarding the
submission of a grant proposal. That issue was
resolved prior to the meeting, so instead Plaintiff
asked Sandler for more departmental assistance
with her own grant proposals. Plaintiff did not bring
up any problems concerning the alleged sexual
harassment by Kessler, nor did Sandler bring up the
issue of the alleged consensual sexual relationship
and physical assault.
According to Sandler, he saw Plaintiff and
Kessler together two or three times between
November 2004 and June 2005 and “they seemed to
be doing fine together.” (Doc. No. 72, Affidavit of
Martin P. Sandler (“Sandler Aff.”) {| 14.)
45a
Appendix C
In May 2005, Kessler reported to Sandler
another alleged incident that occurred between him
and Plaintiff. This time, according to Kessler,
Plaintiff accompanied him to an optician’s office to
look at some new eyeglass frames. He alleyved that
she became angry, and physically violent, because
Kessler sclected the frames his wife preferred rather
than those that Plaintiff preferred. Plaintiff denies
this incident ever occurred
C. The Toronto Incident
In June 2005, both Plaintiff and Kessler (as
well as Sandler and other Vanderbilt faculty from
the Radiology Department) attended a professional
conference in Toronto, Ontario. Although Plaintiff
and Kessler traveled to Toronto together, Plaintiff
ensured that they stayed at different hotels. Kessler
nonetheless helped her rehearse for her two
presentations to be given at the conference. After
the presentations were given successfully, Plaintiff
and Kessler went out to a celebratory dinner at the
restaurant at the Four Seasons Hotel where Kessler
Was 5 tay MY
Prior to the dinner Kessler persuaded
Plaintiff to leave her valuables in his hotel room, as
her hotel room did not have a safe. After dinner
Plaintiff went to Kessler’s room to retrieve her
belongings. Plaintiff alleges that once they were in
he room, Kessler attacked her physically and
46a
Appendix ©
attempted to rape her. Plaintiff successfully
defended herself but threatened to call the police and
report the assault. She claims Kessler threatened to
ruin her career if she reported him. Kessler denice
that he attacked Plaintiff and instead claims that
they had consensual sexual relation at her
invitation; he alleges that after intercourse, he
expressed remorse and told Plaintiff that they could
not start seeing each other again, at which point
Plaintiff became violent and also threatened to ru)
Kessler’s career
The undisputed facts are that Plaintiff called
Kessler’s wife that night after the altercatio)
although the content of that phone conversation
not in the record, and Kessler drove Plaintiff back to
her hotel. Later, Kessler called the Toronto polic
and reported that Plaintiff had assaulted him. As a
result, the Toronto police went to Plaintiffs hote!
room and arrested her, She reported that she wa
the victim rather than the perpetrator of the assault
so the Toronto police arrested Kessler as well. Both
parties were held in jail for a day and a night, and
then released when the authoritics decided thers
was not enough evidence to determine which part
Was the avvressor and which the Victim QO the
charges against them wer dropper q
D. Plaintiffs Allegations of Harassment
and the ODC Investigation
+/a
Appe rai (
Before ne even left Toronto Vlaintil called
Anita Jenious, Associate Director of the Vanderbilt
Opportunity Development Center (ODC"), to report
Kessler’s alleged sexual harassment as well as the
alleged assault. Shortly after returning to Nashvi
on dune 24, 2005, Plaintiff had a meeting with
Jenious in person to lodge a formal complaint
against Ke ler. Plaintiff sent Jenious a follow-up «
mail the next day a king whether there Wa
anything cls he needed to do to preve nt Ke 1?
from continuing to harm her Jenious began he
investigation into Plaintiff clain immediately
alter Lhe June 24 meeting and concluded the
nvestigation in December ZOOhH
Uitimately, on the ba of the information
obtained during the course of her investigation
Jenious decided that there w mnsulligqent evidence
LO upport Plaintill clarm ()] exual hara ment
and a ault pul found OA ed UO) Ke le!
adm} ion that Vila tiff and Ke ler had nducted a
COMSCHIHI ual ( ial I lat } hl} er iusfé } ler)
Va Plaintiff uperv) nd mentor at the time
Ke ley behavior W 7) letermined ae rye
unprofessional, Inappropriate, and in violation of the
tandard of conduct et torth n the Vanderhilt
Faculty Manual. Based upon Jeniou findings and
the recommendatio ota pee ally ippointed tar I
COMIMILLCE Vanderbilt di ciplined Ke icy i} Lye
form of a reprimand, encouragement to continue
recelving coun elng ind i requirement that ni
reimbursi Vanderbilt for certain out-ol-pocket
expense Including ttorne ta i) ny out | Oo]
ippendix ¢
mn connect) vith h macceptablh f itt
Plaintiff that led t the tit Mon Del nied
tne { nivel if lip» 1 i | ! rT) IT) ia ASAE LSL bie
Ni iso advised that future $4 mduct
cludin nhappropriate itionsny Nit}
("ji plo (*¢ } traines mrdce) rey j
( nstitute ry ma IO? (] mil Mat itl ! le
j | Tructed bo nave rect eeeeeaee l |
Mhaint | | i ] (*)] ‘ vith) } , ;
rk place i! ! i] i] ! ai !
CO) dered ret if Lae | pyrita » |
rdvancen eel
bigay
\Llievation of Ket;
| Plaintiff
‘
tif al ,
;
rit j ( | I} ' , |
| ‘ tT) | r\ 4 ' . , 7 7
| j youre? i 4} ‘ | ' | | | |
) ’
' | . ’ ri;
'
| i 4 | i | / |
, ‘ i l ' .
(] | |
'
|
|
ii ;
Vy '
| ’
'
; ;
i
}
(Jenious Dep. at 126:7—-10.) The context of the
statement, however, as well as Jenious’s testimony
elsewhere, make it clear that she meant that the fact
that Kessler admitted he had an _ inappropriate
sexual relationship with a subordinate, given that he
was married and stood to lose so much in making
that admission, influenced her to believe he was
likely telling the truth.
On June 29, 2005, just a few days after
Plaintiff first met with Jenious to make a formal
complaint of sexual harassment, Plaintiff and her
attorney, David Raybin, met with several Vanderbilt
representatives to discuss her allegations. Frior to
the meeting, Raybin had advised Vanderbilt that
Plaintiff did not want to be in Kessler’s presence, so
Kessler did not attend the meeting and as a result
was not immediately aware of the decisions reached
during the meeting. While there are almost as many
versions of what transpired at the meeting as there
are persons who attended it, it is clear that
Vanderbilt was trying to figure out a way for
Plaintiff and Kessler both to continue working at
Vanderbilt without having to come into contact with
each other, at least until the ODC investigation was
concluded. Sandler announced his decision at that
meeting that work on the AMPT Grant would be
temporarily suspended for both Plaintiff and
Kessler. Later, it turned out that work on the Grant
had to be suspended because of the temporary
unavailability of [18k ]fallypride, the radioactive
marker used in conducting the PET scans. Plaintiff
does not dispute that neither she nor Kessler
Sla
Appendix C
performed any work on the AMPT Grant after June
29, 2005 until January or February 2006, when
[18k ]fallypride became available again. She likewise
does not dispute that Kessler had no input in the
decision to suspend work on the Grant.
Plaintiff alleges that she was told at the
meeting that she could not work with Kessler while
the ODC investigation was pending and _ that
Vanderbilt did not want her to come into contact
with Kessler at all. She was therefore allegedly told
to stay away from her office and the PET lab until
the investigation was complete, although there was
ibiting Kessler from using
b. Vanderbilt denies that
was ever told that she should stay away
his office or the PET la
Plaintiff
from her office and contends that the evidence in the
no discussion about proh
2
record to which Plaintiff points in support of that
aliegation is either inadmissible hearsay or does not
actually support the claim. In any event, there is no
dispute that Plaintiff and Kessler inadvertently ran
into each other in the PET lab shortly after the June
29 meeting, and that Plaintiff thereafter fled the
campus The next day, she left town on a previously
returned to Vanderbilt
scheduled trip. Plaintiff
around August 20 and does not allege that she was
still denied access to her office at that point or any
time thereafter.
Shortly before Plaintiff returned to Nashville
on August 20, 2005, her attorney sent a letter to one
of Vanderbilt's attorneys informing him that
Plaintiff intended to return to Vanderbilt “in
2a
Appendix C
approximately ten days to continue her work” and
that, although she understood that work on the
AMPT Grant. was suspended, “she ha[d] other
matters she [could] work on and [would] use this
interval to plan these projects with others.” (Doc.
No. 74-16, Deposition of David Raybin (“Raybin
Dep.”) at 81-32 & Ex. 1.) Plaintiff nonetheless claims
that because 90% of her work before June 2005 was
with Kessler on the AMPT Grant, she was basically
unable to work even after she returned to Vanderbilt
in late August.
In October 2005, Plaintiff sent an e-mail
message to Sandler asking for some assistance with
a grant proposal she was preparing to submit to the
NIH. ‘The proposal was a resubmission of a “Sex
Differences” grant proposal Plaintiff had previously
submitted in January or February 2005, with
Kessler named as co-investigator, but which had not
been funded. On October 24, 2005, Sandler and Dr.
James Patton, Professor and Vice Chair for Finance
and Administration, Radiology Department, both
met separately with Kessler and Plaintiff to discuss
Plaintiffs need for assistance and how the two of
them could resume collaboration on various grant
proposals and other work without the need for direct
contact. Sandler proposed that Plaintiff and Kessler
could communicate with each other via e-mail using
Patton as an intermediary, which Plaintiff found
acceptable. (Later, the parties decided to e-mail
each other directly through new e-mail accounts,
with copies to both their attorneys.)
S3a
Appendix C
In her meeting with Sandler and Patton,
Plaintiff also communicated her desire to resubmit
her Gender Differences grant proposal on November
1, 2005 and asked for permission to list Kessler as
coinvestigator on that grant, as he was on the first
told
Sandler and Patton that she needed Kessler’s
assistance in reviewing the grant application before
submission of the same proposal. Plaintiff
resubmitting it and in particular needed his help
writing the rebuttal letter addressing the specific
concerns outlined by the reviewers of the original
grant submission. Plaintiff asserts that Kessler’s
assistance with the resubmission of the grant
proposal was critical because she had been informed
by the NIH that without the support of Kessler or
someone of his expertise, her chances of having the
crant funded were not good. In addition, she had
never resubmitted a grant before and needed
euidance on how to address the reviewers’ concerns
with the original proposal. Finally, Plaintiff
requested assistance with statistical analysis to
support the proposal. Sandler and Patton agreed to
speak to Kessler and also to contact someone in the
Biostatistics Department on Plaintiffs behalf
regarding help with the statistical analysis.
That same day, after being contacted by
Sandler and/or Patton, Kessler agreed to be listed as
co-investigator on the grant resubmission, but he did
not agree to assist with the grant resubmission
because he was scheduled to leave town the next
day. He did, however, recommend someone in the
Biostatistics Department who would be familiar with
S4a
Appendix C
the type of analysis Plaintiff needed and might be
able to help her. Patton and Sandler both contacted
the Biostatistics Department that day. Patton
testified that he made arrangements with someone
on the Biostatistics faculty to provide Plaintiff some
assistance but asserts that he never heard back from
Plaintiff. Plaintiff claims she was told by the
Biostatistics Department that no one was available
to assist her given the short notice and the
November 1, 2005 deadline. Plaintiff therefore
resubmitted her grant proposal naming Kessler as
co-investigator but without his input and without
ary assistance with the statistical analysis. She
alleges that Patton and Sandler knew she needed
help and that Kessler would not provide the
requested assistance, but did not offer her assistance
from anyone else at Vanderbilt.
Plaintiff resubmitted the Sex-Differences
Grant proposal again, this time to the NIH, in
October 2006. Kessler again agreed to serve as co-
investigator on the grant. Plaintiff alleges, however,
that “his comments were not meaningful and were
provided at the last minute so that it was impossible
for Plaintiff to incorporate any of his suggestions
into the proposal.” (Doc. No. 107, at 34.)
In February 2006, Plaintiff submitted a grant
to the NIH titled “Imaging of Dopamine Release in
Borderline Personality Disorder” (the “BPD Grant
proposal’). She claims that Kessler refused to assist
her with this grant in any way, despite having
agreed in March 2005 to serve as co-investigator on
55a
Appendix C
the grant proposa!. She alleges that Kessler was
listed on the original application and he reviewed it
in April 2005 and _ provided comments’ and
suggestions at that time, and even offered to allocate
money from his other grants to fund two or three
scans so that she would have pilot data to support
the BPD Grant proposal. (Riccardi Aff. {]/§] 67, 68,
and Ex. 5.) Plaintiff decided for strategic reasons to
wait to submit the grant proposal, and planned to
submit it in February 2006 instead.
In a letter dated January 24, 2006, Kessler’s
attorney informed both Vanderbilt’s and Plaintiff's
representatives that Kessler was not willing to serve
as cO-investigator on the BPD Grant and that he was
under no obligation to do so. Plaintiff asserts that
Vanderbilt “acquiesced” to Kessler’s refusal to assist
her despite the fact that Kessler was the only faculty
member at Vanderbilt with the relevant background
in Per neuroimaging who could assist her and serve
as co-investigator on the grant. Plaintiff alleges she
submitted the BPD grant proposal without Kessler’s
assistance,
Kessler did agree to serve as co-investigator
on a grant proposal concerning autism that Plaintiff
submitted to the NIH in June 2006. While he also
agreed to review the grant and provide comments
prior to its submission, Plaintiff complains that his
comments were not comprehensive or meaningful.
Plaintiff submitted a proposal for a Vanderbilt
Discovery Grant, also on autism, in August 2006.
Ly
Soa
Appendix C
Kessler agreed to assist her with that grant proposal
and specifically expressed an interest in “helpfing] in
the composition and editing of this application so
that, as much as possible, the grant application is
clear and conipelling.” (Doc. No. 82-2, at 2.) By the
time he agreed to assist her, however, Plaintiff had
already submitted the grant proposal. She alleges
that his refusal to promptly agree to help was
retaliatory.
Kessler refused to be a Mentor/Sponsor on a
NARSAD Young Investigators grant proposal
Plaintiff submitted in July 2007. Plaintiff claims
Vanderbilt was aware of Kessler’s refusal and made
an offer to attempt to locate another mentor for the
grant but, Plaintiff claims, the offer was
disingenuous because there 1s no one at Vanderbilt
other than Kessler who has expertise in the type of
research Plaintiff wishes to pursue. From the
record, it appears that Plaintiff submitted the grant
proposal without Kessler’s participation but with a
different Vanderbilt faculty member named as her
Mentor/Sponsor.
The record does not reflect whether the
NARSAD grant proposal was accepted for funding,
but 1t 1s undisputed that none of Plaintiffs other
grant proposals to date has been accepted for
funding.
Plaintiff also complains that since June 2005
Kessler has submitted three new grant proposals on
which he did not include her as a co-investigator,
S/a
Appendix C
despite the fact that Plaintiff was allegedly included
on all of Kessler’s grant proposals involving PET
technology submitted after she arrived at Vanderbilt
and up until June 2005. She claims that Kessler’s
failure to include her as co-investigator on these
grant proposals was retaliatory.
In general, Plaintiff alleges that because
Kessler has failed to support her grants or to include
her on his own grant work, she has not obtained
sufficient outside funding to enable her to remain on
the Vanderbilt faculty. She alleges that Kessler’s
actions were retaliatory and either constituted or
resulted in an adverse employment action. She
alleges that Vanderbilt and Sandler also retaliated
against her for reporting sexual harassment by not
sufficiently supporting her grant work and _ by
acquiescing in Kessler’s decisions.
Il. ANALYSIS AND DISCUSSION
A. Plaintiffs Sexual Harassment Claim
Against Vanderbilt
(1) Applicable Legal Standards
Plaintiff asserts sexual harassment/hostile
work environment claims against Vanderbilt under
Title VII and the Tennessee Human Rights Act
(“THRA”). The standards for determining the
viability of such claims as a matter of law are the
same under both statutes, Parker v. Warren County
Util. Dist., 2 S.W.3d 170, 176 (Tenn. 1999) (adopting
S8a
Appendix C
the standards set forth in Burlington Indus. Inc. v.
Kllerth, 524 U.S. 742 (1998), and Faragher v. City of
Boca Raton, 524 U.S. 775 (1998)).
An employee alleging a_ hostile work
environment based on sexual harassment must show
that:
(1) the employee was a member of a protected class;
(2) the employee was subjected to unwelcome sexual]
harassment; (3) the harassment complained of was
based on sex; (4) the charged sexual harassment
created a hostile working environment; and (5) a
basis exists for imposing liability on the employer.
Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999).
A hostile work environment occurs “[wlhen
the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the
victim's employment and create an abusive working
environment.” Harris vu. Forklift Sys., Inc., 510 U.S.
17, 21 (1993) Gnternal quotation marks and citations
omitted). Both an objective and subjective test must
be met; in other words, the conduct must be so
severe or pervasive as to constitute a hostile or
abusive working environment both to a reasonable
person and the actual victim. /d. at 21—22.
Analysis of the fifth element of the five-part
showing, employer liability, differs depending upon
the identity of the alleged harasser, with a
distinction drawn between co-worker harassment
S9a
Appendix C
and harassment perpetrated by a _ supervisor
Nievaard v. City of Ann Arbor, 124 Fed. Appx. 948,
953 (6th Cir. March 7, 2005). If the harassment was
perpetrated by a supervisor and resulted in a
“tangible employment action,” the employer will be
strictly hable. EKllerth, 524 U.S. at 762-63; Keeton v.
Flying J, Inc., 429 F.3d 259, 262 (6th Cir. 2005). If,
however, no tangible employment action is taken,
a defending employer may raise an
affirmative defense to hability” or
damages, subject to proof by a
preponderance of the evidence... . ‘The
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 preventive or
corrective opportunities provided by the
employer or to avoid harm otherwise.
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 777
78 (employing identical language).
In the case at bar, Plaintiff asserts both that
she suffered a tangible employment action and that
material factual disputes preclude summary
judgment for Vanderbilt on the grounds of the
Kllerth/Faragher defense.
(2) Whether Plaintiff Was Subject to
a “Tangible Employment Action”
HOa
Appendix C
According to the Supreme Court, a tangibl
employment action is “the means by which th
supervisor brings the official power of the enterprise
to bear on subordinates.” llerth, 524 U.S. at 762
Thus, a tangible employment achion “requires an
official act of the enterprise, a company act.” Jd. The
action must be materially adverse to warrant
imposition of strict liability; thus, generally
speaking, the action involves “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.” Keeton, 429 F.3d at 262. In this
case, the actions to which Plaintiff points do not
support her claim that she suffered a materially
adverse “tangible employment action.”
Mirst, she argues that Kessler falsely reported
to Sandler that Kessler and Plaintiff had been
conducting a consensual sexual affair and that
Plaintiff had physically assaulted him, and that
these allegations had the effect of impugning her
and damaging her reputation. While it is certainly
possible that Kessler’s reports may have somewhat
diminished Sandler’s respect for Plaintiff, he:
allegations in that regard are purely speculative
Moreover, she has not shown that this hypothetical
diminishment of her reputation resulted ina
tangible or material employment action against her
in the sense of an official act by Vanderbilt itself
3 While damage to reputation that might harm future
(Otherwise Plaintiff Pe LAEL Ontly that frye
Defendant allegedly retaliatory conduet which by
a hinition could only have ne ir) aitey hye r’¢ porte Ci
exual harassment, in itself constituted a tanyvibl:
employment action \ccording to Plaintiffs own
allegation howeve! the allevedly adverse action
resulted not from the harassment itself but from
Plaintiffs act of reporting the harassment \s a
matter of law, allegations of retalatory conduct are
not sulhhcient to state a claim that the alleged sexual
harassment itself resulted i) an adverse
employment action. See Morris v. Oldham County
Kiscal Court, 201 F.3d 784. 790-91 (6th Cir. 2000)
(holding that conduct alleged to have occurred in
retahation for complaints made about a hostile wor]
environment cannot bye fhvured into ‘thie hostile
working environment equation because uch
incident are not alleged to have occurred “hecause
ol sex. )
because Plaintiff has not presented evidenc
that she suffered a tangible employment action as a
result of the alleved sexual harassment/hostile work
environment, Vanderbilt is entitled to raise the
illerth/faragher affirmative defensi
employment prospect may well con
employment action sullicient to upportl a prima fact claim o
discrimination under Tithe VIL, see Hillig vo. Rumsfeld, 38) F.3d
102%, 1088 (lOth Cir. 2004), Plaintiff has not pomnted to any
case Jaw Suyvesting that damave to reputation alone WouUuTd
warrant barring an employer from presenting an affirmati
delense apyainst a hostile work environment claim
(3) Whether Vanderbilt is
Kntitled to Summary Judgment on the Basis of
the Kllerth/Faragher Defense
mderbilt dor test
purpose ol th naoblionh 10! Waal arent t i!
Plaintill ulfered ever ina pe
hara ment It doe contend, | VOCVO) that |
entitled to summa mdyument the basis that
und) | ted hact demonstrat thyat Toa f
Cxere’ d reasonable Care I prevent moa rrect
promptly iriy exually hara ny oena Or and wu [
Plaintiff inreasonably tailed to take pivantiaype
the preventive or corrective Nportunitie pol 1
Dy Vanderbilt o1 otherwise ti i i] nari (
Iellerth 24 I 11/65: haravher PA I t
ly Upport oF it tC) Vanderbilt
the imstitutional ellorts it ha iIndertaken to pr On
ana correct Vor plac ci) (") nNInatLion ma x |
nara ment and Domne if tnt Vilaintill
dmittedly aware of the r re iVuallable {
and failed to take udvantays | them until after t)
roronto incident occurred Viaimtill, for her part
dot nol atlempt to justil ney? hallure Lf report
Ke ley slleved nara nent mth hur A
Instead he point out that rv ley reported ft
andier, hi upervisol in the tall of YOO4A tha
Ke ler ina Vilaintill nad Deen eonduct
COMSEC)) ual exual relatior } }) md that Miagntill had
physically assaulted him when he ended it W hail
VPiaintiff cannot relute midies Lestimol! that te
64a
Appendix C
unreasonable in failing either to convey Kessler’s
report to the Dean or to confront Plaintiff about it.
For that reason, Vanderbilt’s motion for summary
judgment as to the hostile work environment/sexual
harassment claim against it must be denied.
B. The Retaliation Claims Against
Vanderbilt
(1) Applicable Legal Standards
Title VIJ provides that “fiJt shall be an
unlawful employment practice for an employer to
discriminate against any of [its] employees
because [the employee] has opposed any practice
made unlawful by [42 U.S.C. § 2000e], or because he
has made a. charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42
U.S.C. §2000e-3(a). Similarly, under the ‘THRA:
It is a discriminatory practice for a
person or for two (2) or more persons to:
(1) Retahate or discriminate in any
manner against a person because such
person has opposed a practice declared
discriminatory by this chapter’ or
because such person has made a
charge, filed a complaint, testified,
assisted or participated in any manner
in any investigation, proceeding or
hearing under this chapter... .
‘Tenn. Code Ann. § 4-21-301. A retaliation claim, like
a disparate treatment case, can be proved either
65a
Appendix C
through direct evidence or through indirect evidence,
using the McDonnell-Douglas burden-shifting
approach. See Christopher v. Strouder Mem Hosp.,
936 F.2d 870, 879 (6th Cir. 1991) (considering direct.
and indirect evidence in support of retaliation claim);
Booker v. Budget Rent-A-Car Sys., 17 F. Supp. 2
735, 750 (M.D. Tenn. 1998) (same). Plaintiff here
does not claim to have direct evidence of retaliation.
To prove a prima facie case of retaliation
using indirect evidence, a plaintiff must show that
(1) she engaged in activity protected under Title VII
(or the THRA); (2) the defendant knew she exercised
her protected civil rights; (3) the defendant took an
employment action adverse to the plaintiff; and (4)
there was a causal link between the protected
activity and the adverse employment action.
Jacklyn v. Schering-Plough Healthcare Prods. Sales
Corp., 176 F.3d 921, 929 (6th Cir. 1999). If the
plaintiff succeeds in establishing a prima facie case,
the burden shifts to the defendant to articulate a
legitimate, non-retaliatory reason for the action
taken. If the defendant meets that burden, the
burden then shifts back to the plaintiff to
demonstrate that the defendant’s proffered reason is
pretextual because it (1) had no basis in fact; (2) did
not actually motivate the decision; or (8) was
insufficient to motivate the decision. Sherrills v.
Beison, No. 06-2351, 2007 WL 2171314, at *3 (6th
Cir. July 27, 2007).
Vanderbilt asserts that it is entitled to
66a
Appendix C
summary judgment on Plaintiffs retahation claim
because she cannot establish that she suffered an
adverse employment action, that any alleged adverse
action was causally related to her engaging in
protected activity, or that Vanderbilt's proffered non-
retaliatory reasons for any actions it took were
pretextual.
(2) Whether Plaintiff Was Subject to
an Adverse Employment Action
The Supreme Court has stated that the
standard for proving an adverse employment action
in the retahation context is not as high as the
standard applied in the disparate-treatment context.
Burlington N. & Santa Fe Ry. Co. v. White, 126 S.
Ct. 2405, 2414-16 (2006). In White, the Court held
that to prove retaliation “a plaintiff must show that
a reasonable employee would have found the
challenged action materially adverse, which in this
context means it might have dissuaded a reasonable
worker from making or supporting a charge of
discrimination.” Jd. at 2415 (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). The
reference to a “reasonable employee” establishes “an
objective standard” that is “judicially administrable,”
and the “materiality” requirement — excludes
complaints based on “trivial harms.” Jd. The Court
also recognized that “the significance of any given
act of retaliation will often depend on the particular
circumstances. Context matters.” Jd. Thus:
A schedule change in an employee's
work schedule may make hittle
difference to many workers, but may
67a
Appendix C
matter enormously to a young mother
with school age children. A supervisor's
refusal to invite an employee to lunch is
normally trivial, a nonactionable petty
slight. But to retaliate by excluding an
employee from a weekly training lunch
that contmbutes significantly to the
employee's professional advancement
might well deter a reasonable employee
from complaining about discrimination.
Hence, a legal standard that speaks in
general terms rather than specific
prohibited acts is preferable, for an act
that would be immaterial in some
situations is material in others.
Id. at 2415-16 (quotation marks and_ internal
citations omitted).
Plaintiff alleges that Vanderbilt retahated
against her by (1) conducting a biased investigation
into her report of sexual harassment; (2) denying her
access to her office; (3) suspending her from working
on the AMPT Grant; and (4) acquiescing in Dr.
Kessler’s refusal to support her own grant proposals
to the extent Plaintiff believes he should have, or to
include her on his own grant proposals submitted
after June 2005.
First, regarding Plaintiffs claim that the
OED’s investigation was biased, the evidence to
support such a claim consists solely of Plaintiff's own
conclusory and unsupported allegations. The
portions of the record to which Plaintiff cites simply
68a
Appendix C
to do not support her claims.4 Moreover, Plaintiff
cannot and has not alleged that she suffered any
adverse employment action resulting from the
allegedly biased investigation.
With respect to Plaintiffs allegation that she
was denied access to her office, even assuming that
that Plaintiff has presented sufficient evidence that
Vanderbilt in fact denied her access to her office
immediately after the June 29, 2005 meeting, there
is no dispute that Plaintiff left Nashville the next
day on a previously planned trip, and that when she
returned to Vanderbilt around August 20 she had
full access to her office. In other words, at most,
Plaintiff lacked access to her office for one or two
days. As such, any lack of access was temporary and
obviously resulted from Vanderbilt's concern that
she not inadvertently come into contact with
Kessler. The Court finds that any such temporary
denial of access to her office, even considered in
conjunction with Plaintiffs other allegations of
retaliatory action, was not sufficiently material to
constitute an actionable adverse employment action.
With respect to Plaintiffs allegation that she
was suspended from working on the AMPT Grant,
she does not dispute that Kessler was likewise
4 Even assuming, as we must at this stage in the
proceedings, that Plaintiffs version of events is the true and
correct one, the Court cannot say that Vanderbilt’s decisions
resulting from the OED investigation and the independent
faculty committee’s recommendations, based on essentially the
same allegations as those presented here, were unreasonable.
69a
Appendix C
suspended from working on the grant and that a
substantial reason for the length of the suspension
had to do with the unavailability of [18F]fallypride.
However, Plaintiff has also alleged that up until the
meeting on June 29, work on the AMPT Grant
constituted 90% of the work she conducted at
Vanderbilt, and that being required to cease work on
the Grant during the fall of 2005 left her with
essentially no job duties. The Court therefore finds
that for purposes of establishing her prima facie case
of retahation, Plaintiff has raised a question of fact
as to whether suspension of the grant constituted a
materially adverse change in the terms and
conditions of her employment. White, 126 S. Ct. at
2410.
Plaintiff also alleges that she has not received
obtaining grant funding, and that as a result she has
not achieved 75% funding of her salary through
outside sources within the three-year time frame set
forth when she was first employed by Vanderbilt.
Although Vanderbilt argues that the terms,
conditions and benefits of Plaintiffs employment
have not changed, there is no dispute that Plaintiffs
one-year contract, which expired in July 2007, was
not renewed for a full year as it had been in the past.
Instead, Plaintiff received a six-month contract
renewal, essentially a grace period during which to
attempt to secure funding. A jury might well infer
under the circumstances that Vanderbilt chose to
extend her contract despite her lack of funding in
order to avoid the more _ blatantly adverse
employment action of an outright non-renewal of her
70a
Appendix C
contract. The Court therefore finds that the
university's alleged failure to support Plaintiff's
grant-writing or to ensure her inclusion on other,
more senior faculty member’s grants may have had a
bearing on her opportunities for professional
development and career advancement and therefore
“might have dissuaded a reasonable worker from
making or supporting a charge of discrimination,”
White, 126 S. Ct. at 2415 (2006); cf. Nakis v. Potter,
422 F. Supp. 2d 398, 420 (S.D. N.Y. 2006) (holding
that a supervisor's denial of Postal Service
employee's request to retake a computer software
class was an adverse employment action as the
employee's request had bearing on her professional
development and promotional opportunities); Santa
Cruz v. Snow, 402 F. Supp. 2d 113, 127 (D.D.C.
2005) (noting that the denial of a training
opportunity on allegedly discriminatory grounds can
constitute an “adverse employment action" if the
denial materially affects the employee's promotional
opportunities). Since the Court must construe the
facts and make all inferences in Plaintiffs favor for
purposes of this summary judgment motion, the
Court finds that Plaintiff has established a jury
question as to whether she was subject to an adverse
employment action sufficient to support a retaliation
claim, based generally on Kessler’s and Vanderbilt’s
alleged failure to support her grant work. Whether
Plaintiff has presented sufficient evidence that the
Defendants actually failed to support her specific
grant-writing efforts, as discussed below, is a
different question.
7la
Appendix C
(3) Whether the Alleged Adverse
Actions Were Causally Related to Plaintiffs
Protected Activity
In order to show a causal connection, a
plaintiff must produce sufficient evidence from
which an inference can be drawn that the adverse
action would not have been taken had the plaintiff
not filed a discrimination action. HHOC v. Avery
Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997).
Although no one factor is dispositive in establishing
a causal connection, evidence that the defendant
treated the plaintiff differently from identically
situated employees or that the adverse action was
taken shortly after the plaintiff's exercise of
protected rights is relevant to causation. See Moon
v. Transport Drivers, Inc., 836 F.2d 226, 229-30 (6th
Cir. 1987). The burden of establishing a prima facie
case in a retaliation action is not onerous, but one
easily met. Avery, 104 F.3d at 861.
With respect to the suspension of work on the
AMPT Grant, there is certainly an immediate
temporal connection between Plaintiffs report of
sexual harassment and Sandler’s decision in that
regard. Although the Sixth Circuit has recognized
that “in certain distinct cases” temporal proximity
alone may constitute indirect proof of causation,
DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004),
the Court finds that the temporal proximity in this
case, under the particular circumstances presented,
is not sufficient to establish causation.
Alternatively, even if we consider the temporal
72a
Appendix C
proximity alone to give rise to an inference of
causation, Plaintiff cannot rebut Vanderbilt’s
proffered legitimate, non-retaliatory reason for its
action. Specifically, Vanderbilt asserts that the
decision to suspend work on the AMPT Grant was
not retaliatory but resulted from Vanderbilt’s
concern with making sure Plaintiff did not have to
come into any direct contact with Kessler. Work on
the Grant could not continue without Kessler,
because he was the Principal Investigator on the
Grant and the only person authorized to administer
[18K ]fallypride. For that reason, to be fair,
Vanderbilt suspended work on the Grant altogether,
for both Kessler and Plaintiff. Meanwhile, it is
undisputed that the fallypride needed to conduct
scans for the AMPT Grant became temporarily
unavailable, so work on the grant would have come
to a stop anyway. When fallypride again became
available in early 2006, Plaintiff and Kessler both
went back to work on the Grant, communicating
with each other via e-mail through an intermediary
or by copying both their attorneys on all their
communications.
Plaintiff asserts that she could have conducted
work on the grant that would not have required her
to work directly with Kessler and would not have
involved scanning patients or the use of fallypride.
The Court finds that her statement in that regard is
totally conclusory and does not rebut Vanderbilt’s
proffered reason for temporarily suspending work on
the Grant. Plaintiff's claim of retaliation based on
suspension of work on the AMPT Grant therefore is
T3a
Appendix C
not tenable.
With respect to the Plaintiffs own grant
proposals on which she alleges she _ received
insufficient support from Kessler specifically and
Vanderbilt generally, the Court finds that Plaintiff
has presented evidence that, viewed in the light
most favorable to Plaintiff, may be considered to give
rise to an inference of a causal connection. The
alleged lack of support for Plaintiffs grants and
Kessler’s failure to include her on his own grants all
occurred within the two years following Plaintiffs
initial report of harassment. Because the OED’s
investigation into Plaintiffs allegations took nearly
six months, and Vanderbilt took another six or seven
months to determine whether disciplinary action
was warranted, Plaintiffs report had on-going
repercussions for Kessler. In addition, Plaintiff
alleges that prior to her making a report of
harassment, Kessler went out of way promptly to
assist her with her grant proposals, and included her
as a co-investigator on all of his grant proposals that
involved PET technology. She alleges this changed
after her report. Considering all of the factors
together the Court finds that Plaintiff has created
an issue of fact as to whether the allegedly
diminished support for her grant activities was
causally related to her harassment report.
(4) Vanderbilt’s Non-
Discriminatory Reasons for Its Actions and
Whether Plaintiff Has Presented Evidence of
Pretext
74a
Appendix C
As discussed above, the Court finds that
Plaintiff has not presented sufficient evidence to
support a prima facie case of retaliation based upon
the allegedly biased investigation into her report of
sexual harassment, the denial of access to her office
or the suspension of work on the AMPT Grant. With
respect to her allegations that the Defendants
retaliated against her by failing to support her
erant-writing efforts or to include her on Kessler’s
erant proposals submitted after June 2005, however,
there are disputed issues of fact as to each of the
elements of her prima facie case. The Court will
therefore consider the evidence relevant to cach of
the six different grant proposals Plaintiff has
submitted and the three grant proposals Kessler has
submitted since June 2005, to determine whether
Defendants have proffered’ legitimate, non-
retaliatory reasons for their actions and whether
Plaintiff has provided evidence that such reasons are
ia
pretextual.
(a) Plaintiffs Sex Differences Grant Proposals
Plaintiffs “Sex Differences Grant” proposal
was the first grant proposal she ever submitted and
5 In her Complaint, Plaintiff also alleged that Kessler
removed her as co-investigator from grant proposals he
resubmitted after June 2005. Kessler has testified that he did
not resubmit any grant proposals after June 2005 that he
previously submitted prior to that date. Plaintiff has not
offered any evidence to the contrary.
75a
Appendix C
she submitted it three times without its ever being
accepted for funding. She submitted it the first time
to the Mental Health Institute in January or
February 2005 with Kessler named = as_ co-
investigator. After the proposal was rejected, she
prepared to re-submit it on November 1, 2005 and
asked Drs. Patton and Sandler on October 24, 2005
for permission to name Kessler as co-investigator
and to obtain his assistance with preparing the
proposal, and also requested assistance’ with
statistical analysis to support it. Patton and Sandler
agreed to speak to Kessler and to contact the
Biostatistics Department that same day. Kessler,
when approached with Plaintiffs request for his
assistance, agreed to be co-investigator on the grant,
but because he was scheduled to leave town the next
day, he was not able to review the grant proposal or
to help Plaintiff address some of the reasons the
grant was not accepted for funding in the first place.
He did, however, write and sign a letter of support
indicating his participation as coinvestigator, and he
recommended someone in the statistics department
at Vanderbilt from whom Plaintiff might be able to
obtain assistance. Sandler and Patton contacted the
Biostatistics Department to request assistance for
Plaintiff, but, according to Plaintiff, she was
ultimately told there was no one who could help her
given the short notice and the November 1
submission date.
In other words, the Defendants have
presented evidence that they tried to help but were
unable to provide as much assistance as Plaintiff
/0a
Appendix C
wanted given the short notice and the fact that
Kessler had a previously scheduled trip. Plaintiff
has not come forward with any evidence to rebut the
Defendants’ nondiscriminatory reasons for not doing
more. Plaintiffs retahation claim based upon any of
the Defendants’ alleged failure to offer greater
assistance with the first resubmission of the Sex
Differences Grant therefore fails
Plaintiff resubmitted — th Sex-Difference
Grant proposal again, this time to the NIH, in
October 2006. Kessler again agreed to serve as co
investigator on the vrant. Plaintiff alleges, howeve,
that “his comments were not meaningful and were
provided at the last minute so that it was impossible
for Plaintiff to incorporate any of his sugpestion
into the proposal.” (Doc. No. 107, at 34.) Plaintiff
allegations in that regard are simply not supported
by the record. She provided Kessler with the vrant
paperwork for him to review on Friday afternoon
september 29, 2006 which, she claims, was sufficient
time for him to review it and provide comment
before the Monday, October 2 submission deadline
She also asserts that, prior to June 2005, Kessler
always reviewed her work immediately When
Kessler had not gotten back to her by Sunday
afternoon, she called Joann Fields, Grant Review
Analyst for the Radiology Department, who called
Kessler around 3:00 p.m. and asked him why he had
not sent his comments to Plaintiff. He responded
that he had not yet had a chance to look at the grant
as he had a lot going on, but that he would do so
immediately and send his comments. An hour and u
half lates ne ent Plaimmtailf a leneth @-rmail with
comment uvrestion md cncouragement bus
Plaintiff apparently did not Incorporate any of hi
upvestion Into the final grant applheatio I re
ipomitting it the next da
Revardts Miaintill Content I) trial
at hoy Comment We} 1! Hicent and came ft
leate lo be helpful | onelu (I mnd un Ipported ma
| not uiticient lO create ’ ry (jue Lion) ’ |
Vhevney Ke heey parc palion Nil madequate
even onsidered » hight of the other « dence ot
‘ear recora mar imp mad und prurte 1 fice imme if
Ke ley mreed 1 >t 1IVe t) iLO! rh obra rain
md rye re ic* Wwe aa 1) 10 ; ! ' por 1c] ‘
thou hitl yrimnent Ld) | } ’ | Peery
requested to dao icvntitl 3 Ived | ( price
prior to the ibn on date t thie raant Vhaintil
Na not hown that Ke ley beadlure mernied lel |
reviev md provide omment mn tl rant ov
retalator IT) oh Nol ry 7 it’ 2) prrolleree ! |
gdiscrimimnato) reason tor ettinyg to it quicke)
that ne nad not had — time ; oretextua
Viaimotilf retahation claim b ed upon Defendant
Wieved niure t pr ( mrenates (cit t}
L?)) rant also fal
(to) Phessatill mordaertiinye "ary itil {irant
ppl ut
(> \) r
’ por ( j f | |
78a
Appendix C
Plaintiff alleges that, in February 2006, she
submitted a grant proposal to the NIH entitled
“Imaging of Dopamine Release in_ Borderline
Personality Disorder” (the “BPD Grant’). (Riccardi
Aff. 4 66.) She claims that Kessler refused to assist
her with this grant in any way, despite having
agreed in March 2005 to serve as co-investigator on
the grant proposal, that Vanderbilt acquiesced to his
refusal and that his refusal was retaliatory.
The evidence, viewed in the lhght most
favorable to the Plaintiff, shows that she prepared
the paperwork for this grant and was ready to
submit it in June 2005, but decided for strategic
reasons to wait until early 2006 to submit it.
Kessler was listed as co-investigator on the
application; he reviewed the draft proposal in March
or April 2005 and _ provided comments’ and
suggestions at that time and even offered to allocate
money from his other grants to fund two or three
scans so that Plaintiff would have pilot data to
support the BPD Grant proposal. (Riccardi Aff. 44
67, 68, and Ex. 5.) Plaintiff does not allege, however,
that Kessler saw the final version of the application.
Kessler asserts that he did not, and further claims
that his agreement to assist with the grant in early
2005 was” preliminary and_=e anticipated his
involvement in developing procedures for the study.
In a letter to Vanderbilt’s counsel dated
September 26, 2005, Plaintiffs counsel at that time,
David Raybin, stated: “With regard to the new grant
79a
Appendix C
[presumably referring to the BPD Grant proposal]
Dr. Riccardi finds it satisfactory that Kessler’s name
would be on the proposal so as to enhance its chance
of being accepted. However, there must be a clear
understanding that if it is accepted and funded, he
would be replaced as the person with whom she
would work .. ...” (Doc. No. 74-16, at 24.)
In January 2006, Plaintiff asked Kessler to
sign the BPD Grant proposal as a co-investigator but
she did not contact him directly or give him a
complete copy of the submission. Instead, she
apparently gave paperwork to Kessler’s secretary
who then asked him to sign it. Kessler notified
Plaintiffs attorney through his own attorney that he
was not willing to act as co-investigator on the grant.
In a declaration filed in support of his motion for
partial summary judgment, Kessler states that, as
he understood the project, the administration of
medication could cause exacerbation of patients’
underlying symptoms. This risk could be minimized
by the use of appropriate research procedures, but
Kessler claims he had no information regarding
what procedures Plaintiff planned to put in place to
minimize this risk. He asserts he was also
concerned that the safety of patients could be
jeopardized by Plaintiffs refusal to contact him
directly if emergencies arose during the course of the
research. Kessler also asserts that ethical rules
require that researchers who sign grants understand
their research commitments and the essential
aspects of the research project involved and that,
without further information about Plaintiffs
80a
Appendix C
proposed procedures on this grant, he did not feel he
could satisfy his ethical obligations. Finally, Kessler
claims that he was not the only person at Vanderbilt
who could co-sign the grant proposal, and that the
proposal was ultimately submitted by Plaintiff with
a different co-investigator.
In response, Plaintiff asserts only that she
never “refused” to provide a copy of the complete
grant paperwork to Kessler, but she does not
contend that she provided him with a complete copy
of the proposal, nor has she rebutted or called into
question any of Kessler’s asserted reasons for
refusing to sign the grant as a co-investigator. She
faults Vanderbilt for acquiescing in Kessler’s refusal
to join in this grant proposal and for not offering her
the assistance of “an alternative faculty member
with relevant expertise to serve as co-investigator on
the grant,” but also states that Kessler was the only
Vanderbilt faculty member to possess such relevant
expertise. (Doc. No. 93, Riccardi Aff. 9§} 70, 71.)
Regardless, when Sandler learned that Kessler did
not feel comfortable being co-investigator on the
BPD Grant proposal, he suggested to Plaintiff that
another faculty member could serve as_ co-
investigator, and the University would designate
another faculty member to be an authorized user of
the radioactive drugs to be used in connection with
the imaging associated with the grant application.
(Sandler Aff. § 31 and Ex. 11.)
Sandler also testified that the reasons he did
not instruct or direct Kessler to participate in
Sla
Appendix C
Riccardi’s grant application included (1) his concerns
that Kessler and Plaintiff could not meaningfully
collaborate on a project such as this one given
Riccardi’s repeated statements, both directly and
through her attorney, regarding her refusal to have
any direct contact with Kessler; and (2) principles of
academic freedom inherent in any University
community, and set forth in the Faculty Manual,
rendered it inappropriate for him to attempt to
dictate to Kessler to join in a specific project. (See
Sandler Aff. 4] 32.)
The Court finds that, assuming for purposes of
this motion that Plaintiff has established a prima
facie case based on Kessler’s refusal to support this
grant and Vanderbilt’s and Sandler’s acquiescence in
that decision, the Defendants have _ presented
Jegitimate, non-discriminatory reasons for the
action, which Plaintiff has failed to address. She has
not pointed to any evidence that creates a disputed
issue of fact as to whether Kessler’s reasons for
refusing to be co-investigator on her BPD Grant
were pretextual, and Plaintiffs attorney's admission
that Plaintiff wanted Kessler named on the grant
proposal but did not really intend to work with him
on the project lends further support to Kessler’s
expressed ethical concerns. Plaintiffs retaliation
claim based on Kessler’s withdrawal of his support
for the BPD Grant therefore fails.
(c) Plaintiff's Autism Grant Proposals
In June 2006, Plaintiff submitted an NIH
82a
Appendix C
grant proposal on autism. Kessler made comments
on the initial NIH grant and signed it as co-
investigator. Plaintiff alleges that Kessler’s
comments were “not meaningful and comprised all of
one page” (Riccardi Aff. §| 74), and that his failure to
provide more extensive assistance was somehow
retahatory. The Court finds that the record shows
that Kessler agreed to be co-investigator on the
grant and provided substantive commentary on
Plaintiffs draft proposal. Plaintiff's allegations that
his comments were too short and not meaningful are
conclusory and unsupported, and she has not
demonstrated that she suffered a materially adverse
employment action in connection with Kessler’s
assistance on this grant proposal.
In August 2006, Plaintiff submitted an
internal Discovery Grant proposal, also on autism.
She contends that Kessler failed to assist her with
that grant application and that his refusal to do so
was again retaliatory. With respect to this grant
proposal, the undisputed evidence shows that
Plaintiff initially requested that Kessler be co-
investigator on an unspecified discovery grant on
Friday, August 11, 2006; the request appeared as
basically a postscript at the end of an e-mail
discussing their work on the AMPT Grant. Plaintiff
did not indicate the subject of the grant or the date
on which she intended to submit the proposal.
Rather, she simply stated, “I am apply to a discovery
grant and I am requesting your willingness to be on
the grant.” (Doc. No. 82-2, at 4.) On Monday,
August 14, Kessler responded to the e-mail, first
83a
Appendix C
commenting on the other matter being discussed and
then adding, “In regard to the discovery grant, I
would like to know the topic of the grant and would
like to be able to have a chance to make
meaningful comments before its submission.” (/d.)
In a response that can only be characterized
as snippy, sent later the same day, Plaintiff asked,
As long as your help for the discovery grant
[sic], why do you want to know about the
topic? would this change you [sic]
availability in terms of being an
investigator? You are the only one who
does PET neuroimaging at Vanderbilt
as you may well know. Surely the only
one I can ask. I am not sure about
what you mean by ‘to make meaningful
comments before its submission’.
Please explain.
(Id.) She did not, however, answer Kessler’s
question as to what the topic of the grant was, nor
did she indicate the date on which she planned to
submit the proposal.
The next day, August 15, Kessler replied:
Regarding the Discovery Grant, when an
investigator agrees to be a collaborator, she or
he agrees to provide support and to be
responsible for the scientific conduct of
that grant. In this regard it is much like
a paper where one must sign a release
stating that you accept responsibility
for the content of the paper and have no
84a
Appendix C
conflict of interest. I would very much
like to help you with this grant and
hope that you receive this funding. The
ethical conduct of research however
requires that I know what I am
pledging to support and what I am
accepting responsibility for. I [am] not
trying to be difficult in this regard, but
knowing the content of the grant
applications on which you are a
collaborator is a basic responsibility of
each investigator. 1 hope that this
explains the basis of my _ previous
comments to you.
(Doc. No. 82-2, at 2.)
The following day, on Wednesday, August 16,
2006, Plaintiff responded with shghtly greater
civility:
Regarding the Discovery Grant, | perfectly
agree with you. Grant is on autism. I
requested your willingness to be on the grant
on Friday, you answered on Monday and than
[sic] — after one more day of (frantic)
consultation — yesterday. Do you think you
can give your consent today??
Ud.) Again, however, she did not indicate when she
intended to submit the grant proposal.
The following morning, Thursday, August 17,
Kessler responded that he would be pleased to assist
with the grant and that he presumed it would be
consistent with the NIH autism grant proposal
85a
Appendix C
previously submitted. He also included some
preliminary comments and suggestions and stated,
“1 would like to help in the composition and editing
of this application so that, as much as possible, the
grant application is clear and compelling.” (/d.) An
hour later, Plaintiff responded: “Thanks but
unfortunately it is too late; I had to submit the
grant.” (Doc. No. 82-2, at 1.) In other words,
Plaintiff waited to request assistance until less than
a week before she planned to submit the grant
proposal, never told Kessler the date on which she
planned to submit the proposal, and then wasted
several days quibbling about whether he really
needed to know the grant’s topic before agreeing to
co-sign it.
In her response in opposition to summary
judgment, Plaintiff claims that Kessler’s response to
her request that he assist with the Discovery Grant
was disingenuous because, as her mentor, Kessler
had “full knowledge of [Plaintiff's] grant work” and
knew that she could only be referring either to the
Autism Grant or Sex Differences Grant. In addition,
Plaintiff claims Kessler was well aware of the
submission dates for Vanderbilt Discovery Grants
because there are set quarterly dates for submission
of such grant proposals and he had submitted his
own discovery grants. S*inally, Plaintiff asserts that,
prior to the filing of her formal complaint against
him, Kessler would “immediately pledge his
assistance to her with her grants even before she
requested any help.” (Riccardi Aff. 4] 77.)
86a
Appendix C
Plaintiff's position with regard to the Kessler’s
lack of assistance on the Autism Grant is beyond
ridiculous. Her assertions that Kessler must have
known the topic of the grant and its due date are
conclusory and not based on personal knowledge.
Her approach to soliciting his assistance was
patently unreasonable: She never sent him the
grant documents, never told him what her
submission deadiine was, and in any event did not
request his assistance sufficiently in advance of her
unspoken deadline for Kessler to have had time to
provide meaningful assistance. Even assuming his
failure to co-sign the Discovery Grant could be
considered a materially adverse employment action,
Plaintiff has not presented any evidence suggesting
that such failure was causally related to her having
made a discrimination claim against him, nor has
she rebutted Kessler’s proffered legitimate, non-
discriminatory reason for that failure—-namely, that
he agreed to support the grant only to discover
Plaintiff had already submitted it.
Plaintiffs retaliation claim based on Kessler’s
allegedly insufficient support of her Autism Grants
therefore fails.
(d) Plaintiffs NARSAD Grant Application
NARSAD is a non-profit organization that
provides funding for scientific research in severe
psychiatric brain and behavior disorders. (Doc. No.
82, Declaration of Robert M. Kessler (“Kessler Decl.”)
{| 18.) One of NARSAD’s grant programs is for young
8/a
Appendix C
investigators and requires that the applicants have
an “on-site mentor or senior collaborator who is an
established investigator. ... The mentor/sponsor
role is usually extensive for fellowship extension
(mentor), and more senior’ colleague/advisor
(sponsor) for an applicant well prepared to initiate
independent science.” (Kessler Decl. Ex. B
(NARSAD application guidelines).) Plaintiff wanted
to submit a NARSAD Young Investigator grant
proposal in July 2007, and first asked Kessler to sign
her Young Investigator grant application as “senior
author” in April 2007.
In his response to Plaintiff's e-mail request in
that regard, Kessler stated:
I have received your emails asking me to serve
as your NARSAD Young Investigator Award
Mentor/Sponsor. I feel I must respectfully
decline to attempt to serve in that capacity.
As you know, the NARSAD Young
Investigator Award requires a
“Mentor/Sponsor” and the NARSAD web site
states that the Mentor/Sponsor must provide
a letter which states the mentor’s commitment
to facilitate the research proposal. As you
refuse to communicate with me except by
email, refuse to accept any documents that
display my handwriting or signature, and
given the obvious disdain shown toward me
and the general adversarial approach taken
by you, I do not see how I could effectively
fulfill the duties required of a Mentor/Sponsor
for this project. Additionally, | believe that I
Sha
Appendix C
would have to disclose this situation to
NARSAD in a Mentor/Sponsor letter so that
they could adequately evaluate whether or not
I can fulfill the duties as required. Given
these circumstances, I suggest that you
contact Dr. Jeremy Kaye, Chair, Department o
f Radiology, who can assist you in finding a
suitable mentor for this application.
(Doc. No. 93-10, at 2.) Kessler also attested in his
Declaration that prior to responding to Plaintiffs
request he contacted a colleague who, like himself,
was also a member of the NARSAD Scientific
Counsel to determine whether he should or could be
Plaintiffs Mentor/Sponsor given the © strained
relationship between them and their method of
communicating. Kessler’s colleague advised him
that he would be required to disclose to NARSAD the
method of communication, and also told him that he
believed that NARSAD would not fund a pvrant
where the communications between the
Mentor/Sponsor and investigator were so limited and
restricted. Based upon that information and his own
concerns, Kessler alleges that he reasonably believed
he could not fill the role of mentor and his agreeing
to do so would cause the grant application to be
rejected. (Kessler Decl. {| 19.)
In her response, Plaintiff states only that she
did not ask Kessler to be her “mentor” but her
“senior collaborator,” and that there was no one else
at Vanderbilt with relevant PET neuroimaging
experience to serve in that role. Plaintiff also points
out that the role of senior collaborator to a more
89u
Appendix C
established young investigator was less intensive
than that of “mentor,” that Kessler had agreed to co-
sign other grant proposals, and that they continued
to collaborate together on the AMVP’'T Grant. She
does not, however, refute Kessler’s evidence that the
involvement of a mentor or senior collaborator on a
NARSAD Young Investigator’s grant is intended to
be substantially more intensive than that of a co-
investigator on other types of grants, nor has she
addressed his averments that he felt obligated to
disclose to NARSAD their method of communication
and that, given the strained and __ limited
communications between them, he was concerned
that if he sponsored the grant proposal it would not
be funded.
The Court appreciates the difficult nature of
the situation in which Plaintiff finds herself: The
Court of course must presume at this stave in the
proceedings that Plaintiffs allegations of sexual
harassment and assault are true. Accordingly,
under those circumstances it is understandable that
Plaintiff would have reservations about working and
collaborating with the alleged perpetrator of the
harassment and assault, even when that person is
the only person at Vanderbilt who does the type of
research Plaintiff is interested in pursuing and
therefore the only person capable of furthering her
career. The fact remains that Kessler’s concerns
about being a mentor/sponsor to a NARSAD Young
Investigator with whom communications pose a
problem are likewise reasonable, and Plaintiff has
not offered any evidence to suggest that Kessler’s
90a
Appendix ©
stated reasons for not agreeimg to serve in the
Mentor/Sponsor role for the NARSAD | grant
application were pretextual. Likewise, Plaintiff has
likewise not shown that Vanderbilt failed in any
duty to assist her. Her retaliation claim based upon
the alleged lack of support for her NARSAD grant
application therefore fails
(ec) Kessler’s Post-June 2005 Grant Proposals
Kessler submitted three grant proposals after
June 2005 on which he did not include Plaintiff as a
co-investigator: (1) the “Methamphetamine Grant”
submitted to the NIH; (2) an internal Vanderbilt
Discovery Grant on “Dopamine and Depression”; and
(3) the “Risperidone Grant” submitted to Janssen,
L.P. in April 2006. As set forth below, the Court
finds that Plaintiff has alleged sufficient facts from
which a jury might reasonably conclude that
Kessler’s motive ta not including Plaintiff as a co
investigator on either the Methamphetamine Grant
or the Risperidone Garant was retaliatory
Methamphetamine Grant Proposal
Kessler concedes he did not include Plaintiff
as a co-investigator on his Methamphetamine Grant
proposal submitted in October 2005, the only prant
he has submitted to NIH after June 2005. He deni
that Plaintuffs exclusion from the grant proposal
was retaliatory in any way. Kessler states in hi
declaration submitted in support of his own motion
for partial summary judgment that he did not
VTi
Vppe Picida (
‘
mnclude Plaintiffiin the project because the budget for
trie Methamphet nine Garant wea micell sand clidk net
allow for the inclusion of investiyaton Who. like
Plaimtilf, did not have ¢ cperence in the area of druy
abuse. (Ke ler Decl. 4S YI.)
Plaintilfl. on the other hand. alleu threat ar
was named as a co-investivator on allol Dr. We ler
vriant ubmitted for funding sine he began wort
at Vanderbilt” up untal she filed her complaint
against him. (Doe. No. 1O7, at $7; Riecardi Dep. at
SOK TD ohicii.. furthers at hai hye Wil
included on several grants for which she did not. at
the tame of the vrant propo al have any research
expermence or expertise in the area of the pvrant
(Riccard: Aff. 9% 94, 95.) On that b he claim
fhataitl was mot nece ary for her to huave « prerrperres
In the particular tud areca to rv i A CO
mvestivgator on a grantaunvolyving Ploy wunaciny bree
her hunction would have been () or:re & romedieal
doctor performing: neuroumaging analysis using Phd
thy mne rol hie played lor other vrant on which
he worked with Ke ler (Riccardi Aff, © 97.)
Plaintilf also pont mat that Vhiile Ke levy t
Plaintiff lack of expemence and expertise ry thy
irene Of Grup abuse a NOon-GIscrimwnator regaasol
lor not naming her a coounvestivato hy reaqit
ipplicathiol Cute are! prevpoer tuthores
claim Cryst KK heey eould } iVe vdyhi tie thye rresangl
budvet in order to melude mother nvestivator
92a
Appendix C
the grant. For instance, instead of allocating David
Zald, PhD, an 8% effort with salary, he could have
allocated only 5% to Dr. Zald as he had an earlier
grant. (Riccardi Aff. § 98.) He could also, she claims,
have given her the opportunity to be listed on the
grant without funding.
In reply, Kessler argues that Plaintiff has no
personal knowledge about the requirements for a
grant on which she had no involvement, and
therefore that her protestations that experience and
expertise in the area of drug abuse were not
necessary are merely conclusory assertions that are
not sufficient to give rise to a material issue of
disputed fact. Kessler also points out that Plaintiff's
claim that he could have manipulated the budget to
include her is likewise not’ based upon personal
knowledge, in addition to the fact that working on an
unfunded grant would not have contributed to
Plaintiffs salary or, therefore, her ability to stay at
Vanderbilt. In sum, Kessler argues that Plaintiff
has no admissible evidence to establish that his
proffered reasons for not including her on the grant—
-that the small budget of the grant was not sufficient
to include co-investigators who lacked the requisite
experience and expertise—were not honestly held
beliefs upon which he reasonably relied given the
facts before him at the time the decision was made.
The Court nonetheless finds that the Plaintiff
has created a genuine issue of disputed fact as to
whether Kessler’s proffered reasons for not including
her on the Methamphetamine Grant proposal were
93a
Appendix C
pretextual. There is a genuine issue of material fact
as to whether Plaintiff had been included on all
Kessler’s NIH grant proposals involving PET after
she arrived at Vanderbilt up until June 2005,
regardless of her expertise and experience in the
particular area of study. There is likewise a genuine
issue of material fact as to whether Plaintiff
reasonably expected to be included on all of Kessler’s
grants involving PET imaging. Clearly, the fact that
Plaintiff refused to be in direct contact with Kessler
after June 2005 certainly made working together
more difficult. Notwithstanding, Plaintiffs
reluctance in that regard must be considered
reasonable at this juncture, since the Court must
view the facts in the hght most favorable to the
Plaintiff. Moreover, the parties have been able to
continue to work together on the AMPT Grant, so it
must be assumed that they would have been able to
work together in a similar fashion on other grants.
Kessler’s Dopamine and Depression Grant
Proposal
Kessler also submitted a small internal
Vanderbilt Discovery Grant proposal in March 2006
on Dopamine and Discovery, on which he did not
include Plaintiff as a co-investigator. Kessler alleges
that this internal grant only permitted two
investigators and required participation by two
different departments. Plaintiff therefore was not
even eligible fer inclusion on this grant. (Kessler
Decl. § 23.) In his deposition, he stated he did not
include Plaintiff because at the time of
94a
Appendix C
hissubmission collaboration with Plaintiff had been
“exceptionally difficult.” (Doc. No. 89-3, Deposition
of Robert Kessler, M.D. (“Kessler Dep.”) at 837:2—5.)
Plaintiff argues that Kessler’s claim is
“disingenuous” because the internal grant proposal
did not request funding for any part of his or his co-
investigator’s salary in the budget, and that Internal
Discovery Grants typically do not fund the salaries
of the investigators because the grant money is
allocated to the study itself instead. Plaintiff claims
that the purpose of a Discovery Grant is “to obtain
pilot data to then use as support for a larger grant
submission where a portion of the investigators’
salaries would be funded. (Riccardi Aff. 4 102.) She
also claims she would have “gladly” participated on
this grant even without funding.
Regardless, Kessler states he did not include
any other investigators from the Radiology
department, so Plaintiff was not treated differently
than any other Radiology Department members.
Plaintiff has not refuted that fact, nor the contention
that the internal grant only permitted two
investigators and they each had to be from different
departments. Plaintiff therefore has not succeeded
in pointing to specific facts in the record that refute
or create an issue of fact concerning the Kessler’s
legitimate, non-discriminatory reason for his failure
to include her as a co-investigator on his Internal
Discovery Grant.
Kessler’s Risperidone Grant Proposal
95a
Appendix C
In his deposition, Kessler discussed his
Risperidone Grant proposal, submitted to Jansen,
LP in April 2006. At his deposition, in response to
the question as to why Plaintiff was not assisting
him in the preparation of that proposal, Kessler
stated that “it was far simpler just to write it, and
her help was not needed.” (Kessler Dep. at 838:19-—
20.) According to Plaintiff, Risperidone is an
antipsychotic medication and the grant involved
PET scanning of individuals diagnosed with
schizophrenia.- She alleges that the subject of the
study is similar to the previous neuroimaging
analysis work she and Dr. Kessler have done
together. Further, although Kessler submitted the
proposal without input from anyone else, he included
Dr. Richard Shelton as a co-investigator on the
grant, despite Dr. Shelton’s alleged lack of expertise
in schizophrenia or neuroimaging. These facts are
sufficient to give rise to an inference that Kessler’s
stated reason for not including Plaintiff on the
grant—that it was just too much trouble—was
pretextual and that the true motive in excluding
Plaintiff from this grant proposal was retaliatory.
(5) Issues of Fact Preclude
Summary Judgment on Plaintiff's Retaliation
Claim Against Vanderbilt
In sum, Plaintiff lacks evidence to support her
claim of retaliation based upon Vanderbilt’s or
Kessler’s alleged lack of support for her own grant
proposals. Notwithstanding, the Court finds that
96a
Appendix C
Plaintiff has presented sufficient evidence from
which a reasonable jury might conclude that Kessler,
in his capacity as Plaintiffs supervisor, retaliated
against Plaintiff by refusing to include her as a co-
investigator on his own Methamphetamine and
Risperidone grant proposals. Because Kessler was
in a supervisory position vis-a-vis the Plaintiff, his
actions are imputed to Vanderbilt for purposes of
Plaintiff's retahation claim. See Wathen v. Gen. Elec.
Co., 115 F.3d 400, 405-06 (6th Cir. 1997) (noting
that agents of the employer cannot be individually
liable under Title VII, but that the “obvious purpose”
of the use of the word “agent” in the statute was “to
incorporate respondeat superior lability into the
statute” (citations omitted)). Vanderbilt’s motion for
summary judgment as to the retaliation claim
against it must therefore be denied.
C. Plaintiff's Retaliation Claim Against
Kessler Individually Under the THRA
As indicated above, the THRA makes it a
discriminatory practice for any person to retaliate
against another person “because such person has
opposed a practice declared discriminatory by this
chapter or because such person has made a charge,
filed a complaint, testified, assisted or participated
in any manner in any investigation, proceeding or
hearing under this chapter.” Tenn. Code Ann. § 4-21
3801. The THRA, unlike Title VII, permits
retaliationclaims against individual “persons” and
not merely against employers. M&merson v. Oak
Ridge Research, Inc., 187 S.W.3d 364, 377 (Tenn. Ct.
97a
Appendix C
App. 2005).
As discussed above, there is no question that
Plaintiff engaged in protected activity, first when
she reported sexual harassment to the ODC, and
later when she filed a formal complaint with the
EEOC. Kessler was aware of Plaintiff's exercise of
protected rights. He maintains, however, that the
actions of which Plaintiff complains, even if true, do
not constitute materially adverse employment
actions sufficient to support a claim for retaliation
under the THRA. In addition, Kessler claims that
Plaintiff cannot establish that he took any adverse
employment action against her or that any such
alleged action is causally related to the protected
activity. Finally, Kessler asserts that even if his
actions could be considered adverse employment
actions, he has_ proffered legitimate, non-
discriminatory reasons therefor, which Plaintiff
cannot rebut.
As set forth above in connection with the
discussion of the_ retaliation claim = against
Vanderbilt, the Court finds that Plaintiff has not
presented sufficient evidence from which a jury
could conclude that Kessler’s alleged lack of support
for Plaintiffs own grant proposals was retaliatory.
However, Kessler’s motion for partial summary
judgment on the retaliation claim against him must
be denied for the same reasons Vanderbilt’s motion
as to that claim must be denied: The actions upon
which the claims against Vanderbilt are premised
were all actions taken individually by Kessler, and
98a
Appendix C
Plaintiff has demonstrated the existence of material
disputed facts as to whether Kessler’s failure to
include her on his own Methamphetamine and
Risperidone Grant proposals was retaliatory.
D. Retaliation Claim Against Sandler
Under the THRA
Although she did not include an “aiding and
abetting claim” in her Complaint, Plaintiff now
alleges that Sandler is subject to individual liability
for retaliation under the “aiding and abetting”
provision of the THRA. Specifically, the THRA
makes it a discriminatory practice to “[alid, abet,
incite, compel or command a person to engage in any
of the acts or practices declared discriminatory” by
the THRA, including retaliation for engaging in
activity protected by the THRA. Tenn. Code Ann. §
4-21-303(2). It is well settled law that individuals
may be held lable for aiding and abetting an
employer’s discriminatory conduct by, for example,
obstructing an investigation of the discrimination
and thereby preventing corrective action from being
taken. See Rhea v. Schoonover, 395 F. Supp. 2d 696,
706 (W.D. Tenn. 2005) (denying defendants’ motion
to dismiss, noting that an individual who instructs
an employer to engage in a discriminatory practice
will be held liable for this retaliatory act).
Plaintiff argues that Sandler is liable for
aiding and abetting retaliatory conduct under the
THRA because he “[knew] that [Vanderbilt’s]
conduct constituted a breach of duty and [gave]
99a
Appendix C
substantial assistance or encouragement _ to
[Vanderbilt] in its discriminatory acts.” (Doc. No.
107, at 62, citing McNeail-Tunstall v. Marsh USA,
307 F. Supp. 2d 955, 974 (W.D. Tenn. 2004)). More
specifically, Plaintiff asserts that genuine issues of
material fact exist as to whether Sandler interfered
with and influenced the outcome of the ODC
investigation in favor of Kessler; provided false
information to Anita Jenious during the course of
her investigation; barred Plaintiff from use of her
office while allowing Kessler unfettered access to his
office and the PET lab; and suspended work on the
AMPT Grant.
The Court finds that Plaintiff has failed to
produce any admissible evidence that could lead a
reasonable jury to conclude that Sandler personally
engaged in or aided and abetted any allegedly
retaliatory conduct. First, Plaintiff has not pointed
to admissible evidence demonstrating’ that
Vanderbilt’s ordinary practice is to suspend a faculty
member accused of sexual harassment pending
investigation, such that Sandler’s decision not to do
so in Kessler’s place could be considered anomalous.
As set forth above, Plaintiff's lack of access to her
office was brief and did not constitute a material
adverse employment action. ‘To the extent Sandler’s
decision to suspend work on the AMPT Grant
adversely affected Plaintiff, it is clear that it affected
Kessler as well, and the action was done in an effort
to prevent Plaintiff and Kessler from having any
direct contact with each other during the immediate
aftermath of Plaintiffs report of harassment.
100a
Appendix C
Ultimately, Vanderbilt worked out a system that
permitted Plaintiff and Kessler to continue work on
the grant without direct contact with cach other.
Plaintiff also alleges that Sandler aided and
abetted Kessler’s retaliation when he acquiesced in
Kessler’s decisions not to be co-investigator on
Plaintiffs BPD grant or to sponsor her NARSAD
grant proposal. Even if Plaintiff's allegations in that
regard were supported by admissible evidence, she
has not rebutted Sandler’s legitimate, non-
discriminatory reason for not attempting to force
Kessler to participate in these grants: that ethical
principles pertaining to collaborative grant work and
academic freedom prevented him from doing so.
Sandler’s motion for summary judgment of the
THRA retaliation claim against him individually will
therefore be granted, and the cause of action against
him dismissed.
IV. CONCLUSION
For the reasons set forth above, the Court
finds that Vanderbilt’s motion for summary
judgment and Dr. Robert Kessler’s motion for partial
summary judgment must be denied. The motion for
summary judgment of the retaliation claim against
Dr. Martin Sandler will be granted.
An appropriate Order will enter.
Thomas A. Wiseman, Jr.
lOla
Appendix C
Senior U.S. District Judge
APPENDIX D - ORDER, ISSUED BY THOMAS
A. WISEMAN, JR., U.S.D.J., DATED 10/05/2007
97a
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDL® DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DR. PATRIZIA RICCARD I, )
Plaintiff, )
Vv. ) Civil Action No.
DR. ROBERT KESSLER,) 3:06cv0605
Defendant. )
DR. ROBERT KESSLER.)
Plaintiff, )
Vv. ) Civil Action No.
DR. PATRIZIA RICCARDI, ) 3:06ev0615
Defendant. )
ORDER
Kor the reasons stated from the bench, the
Court rules,or defers ruling, on the parties’ various
motions in limine as follows:
1. Dr. Robert Kessler's Rule 412 Motion (Doc.
No. 195): Having conducted the required in camera
hearing, the Court concludes that Dr. Kessler's
testimony regarding conversations between
himself and Dr. Patrizia Riccardi, in which Dr.
Riccardi allegedly divulged details of her past sexual
relationships, will be admissible. This testimony is
relevant to the nature of the parties’ relationship
98a
Appendix D
and their respective credibility, which are issues
going to the very heart of this case. The probative
value of this evidence therefore substantially
outweighs the danger of harm to Dr. Riccardi
resulting from its admission, Kessler's motion to
admit this evidence is therefore GRANTED. If the
Court deems it advisable, the Court will instruct the
jury that it should not consider the evidence for any
purpose other than determining the — partics'
credibility and the nature of their relationship.
The Court also finds that Dr. Shopper's
testimony regarding what Dr. Riccardi told him
about her sexual past will be admissible as non
hearsay admissions of a party opponent the
probative value of which (on the issue of Dr.
Riecardi's credibility regarding her relationship with
Kessler) substantially outweighs its potential
prejudice to Dr. Riccardi. Dr. Kessler's motion to
admit this testimony is therefore GRANTED, but
without prejudice to Dr. Riccardi's ability to object to
specific testimony to the extent it does not bear on
her credibility (which may depend on how Dr.
Riccardi testifies at trial) or is otherwise beyond the
scope of Dr. Shopper's expertise. The other evidence
addressed in Kessler's motion is not properly
characterized as evidence whose admissibility would
be governed by Rule 412, as it consists of testimony
from eye witnesses” directly concerning the
relationship between Dr. Riccardi and Dr. Kessler.
The motion to admit this evidence is GRANTED,
49a
Appendix 1D)
without prejudice to Riccardi's ability to object to the
evidence at the time it is introduced at trial on the
basis of personal knowledyve, foundation or any othe:
legitimate basis provided by the Federal Rules of
Kvidence,
2. Riceardi's Motion in Limine to iexclude
Mvidence at Trial (e-mails Containing Political)
Jokes) (Doc. No. 141); GRANTED. The eight e-mail:
referenced in Riccardi's motion are cumulative
evidence given that there are numerous other e
mails that may be introduced into evidence that do
not have political content and given that Riccardi
has agreed to stipulate that she sent Kessler joke
and e-mail messages with political content. The
Court therefore finds that the potential prejudice to
Riccardi if these e-mails are admitted substantially
outweighs their probative value
3. Riceardi's Motion in_ lamine to Include
Kvidence at Trial (Defendant's Efforts to Move
Assets Out of His Name) (Doc. No. 143): DENTED.
4. Riccardi's Motion to Iixclude Defendant
Kessler's Hearsay Testimony at Trial (Doc. No. 157)
The motion to exclude written witness statements 1:
GRANTED and the motion to exclude the ODC
file generally is GRANTED. The motion to exclude
testimony from Dr. Sandler, Ingrid Kessler and
perhaps others that Kessler told them he was having
an affair with Dr. Riccardi is DEFERRED. At the
time Kessler seeks to introduce this” evidence,
Riecard) can renew her objections and the Court will
C)0)e4
Appendix D
rile it that time
Oo. hoecardys Motion om Lamune to bxelude
Prior Bad Acts and Sexual History at Trial (D0.
No, 162)
(1) ‘The motion to exelude evidence that
Ruccardi as “sexually aver ive my So many word
GRANTED
(2) (5) ‘The Higtior to exelud eyvice ry
hoecardi's disavreements with former colleagues at
Yale failure to keep in contact With former Yale
colloupue that she "went AWOL" while at Yale, or
that she did not fulfill her professional obliyations at
Yale is GRAN'PED. The Court may reconsider thi
ruling af Riccardi opens the door to at
(6)-(7) ‘The motion to exclude evidence that Dr
hoecards: did not have pvpood emotional stability of
dependability Or repardingy hey overall
professionalism is DEFERRED. The Court wall rule
Ol Spe Hic evidence a | Introduced based on the
objections made and the context of the evidence
offered
(4) ‘Phe mothon to exclude CVIdenet rf
Riccardi's altercation with Dr. Meltzer 3 DENIED
the motion to exehucd eVIGenes Of Riecnurds
argument with ecretari at Vanderbilt
GRANTED
({9)-( 10) The motion to exclide mVICenee
Yccard's problems with the vrant-writiay
regarding |
proce at Vanderbilt is DEFERRED. This evidence
may potentially be relevant to Riecardi’s claims of
retahation and resulting damayes. The Court) wall
rule on specifie objections as they are raised in thy
10la
Appendix D
context of the trial.
(11) With regard to the motion to exclude
evidence that "Dr. Riccardi had a torrid sexual
history filled with numerous romantic partners and
abortions": to the extent this portion of Riccardi's
motion refers to testimony by Kessler or Dr.
Shopper, it is DENIED for reasons already stated.
6. Riccardi's Motion to Exclude Dr. Kessler's
expert Report (Doc. No. 163): GRANTED. The
written report itself is inadmissible hearsay. The
Court will rule on objections to the content of Dr.
Moisy Shopper's in-court testimony at the time such
testimony is offered and objections are raised.
7. Riccardi's Motion to [xclude Dr. Kessler's
Defamation Claim Which is Based on Statements
Alleged Made to. or Relayed bv. the AAUW (Doc. No.
190): DENIED. Riccardi had adequate notice of the
basis of the claim and will not be not prejudiced by
its inclusion, particularly given that Kessler's
counsel was unable to obtain documentation of the
alleged libel until September 26, 2007. Defamatory
statements "to others" are referenced in the Pretrial
Order, the specific details of which are set forth in
Kessler's pretrial brief, filed the same day as the
parties Proposed Joint Pretrial Order, and the
allegedly defamatory content of which is contained in
Kessler's original complaint.
8. Kessler's First Motion in _ Limine_ to
*xclude Proof of Dr. Riccardi's Body (Doc. No. 146):
10%a
Appendix D
DENIED. This evidence is relevant to Dr. Kessler's
claim that the parties' had a sexual relationship
and Dr. Riccardi's denial of same.
9. Kessler's Second Motion in Limine_ to
Exclude Proof of Dr. Riccardi's Expectations to be
included on all Dr. Kessler's Grants (Doc. No. 147):
DENIED.
10. Kessler's Third Motion in Limine_to
Exclude Testimony of Dr. Riccardi on the state of
mind of others and hearsay testimony (Doc. No
148): DEFERRED to trial. Objections based on
lack of personal knowledge or hearsay should be
raised at trial at the time the evidence is offered.
11. Kessler's Fourth Motion in _Limine _ to
Exclude testimony of Dr. Riccardi re: matters of
which she has __no___personal knowledge:
DEFERRED to trial. Objections based on lack of
personal knowledge should be raised at trial at the
time the evidence is offered.
Itis so ORDERED.
Thomas A. Wiseman, Jr.
Senior U.S. District Judge
APPENDIX E
102:
United States District Court for the Middle
District of Tennessee
801 Broadway, Nashville, TN 37203, (615) 736-5498
Juage Thomas Anderton Wiseman, Jr.
Federal Judicial Service:
U.S. District Court, Middle District of Tennessee
Nominated by Jimmy Carter on August 1, 1978, to a
seat vacated by Frank Gray, Jr.; Confirmed by the
Senate on August 11,1978, and received commission
on August 11, 1978. Served as chief judge, 1984-
1991. Assumed senior status on November 3, 1995
Kducation:
Vanderbilt University, B.A., 1952
Vanderbilt University Law School, J.D., 1954
University of Virginia School of Law, LL.M., 1990
Professional Career:
U.S. Army, 1954-1956
Private practice, Tullahoma, Tennessee, 1956-1963
Private practice, Winchester, Tennessee, 1963-1971
Member, Tennessee House of Representatives, 1964-
1968
‘Treasurer, State of Tennessee, 1971-1974
Private practice, Nashville, Tennessee, 1974-1978
103a
Appendix E
Adjunct faculty, Vanderbilt University Law School,
1989-present
Special Master, Sixth Circuit Court of Appeals,
1992-1993
Race or Ethnicity: White
Gender: Male
104a
Appendix E
FINANCIAL DISCLOSURE REPORT
Calendar Year 2003
Report Required by the Ethics in Government Act of
1978 (5 U.S.C. app. §§ 101-111)
1. Person Reporting (Last name, First name, Middle
initial) Wiseman, Jr., Thomas A
2. Court or Organization
Tennessee, Middle
3. Date of Report
04/16/2004
4. Title (Article III Judges indicate active or senior
status; magistrate judges indicate full- or part-time)
U.S. District Judge, Sr.Status
5. Report'Type (check appropriate type) Annual
6. Reporting Period
01/01/2008 to 12/31/2003
7. Chambers or Office Address
777 U.S. Courthouse
801 Broadway
Nashville TN 37203
8. On the basis of the information contained in this
Report and any modifications pertaining thereto, it
105a
Appendix E
is, IN My opinion, in complhiance with applicable laws
and regulations.
IMPORTANT NOTES: The instructions
accompanying this form must be followed. Complete
all parts, checking the NONE box for each part
where you have no reportable information. Sign on
last page.
I. POSITIONS. (Reporting individual only; see pp.
9-13 of filing instructions)
Position, Name of Organization/Entity
1. Board Member Sister Cities of Nashville
2. Adjunct Professor of Law Vanderbilt University
School of Law
Il. AGREEMENTS. (Reporting individual only; see
pp. 14-16 of filing instructions)
NONE (no reportable agreements)
Il. NON-INVESTMENT INCOME. (Reporting
individual and spouse; see pp. 17-24 of filing
instructions)
A. Filer's Non-Investment Incom
DATE, SOURCE AND TYPE, GROSS INCOME
1. 2003 Vanderbilt University School of Law
Adjunct Prof 4,200.00
2. 2003 Tennessee Consolidated Retirement System
106a
Appendix KE
3,832.86
B. Spouse's Non-Investment Income - (If you were
married during any portion of tile reporting year,
please complete this section. (dollar amount
not required except for honoraria)
DATE, SOURCE AND TYPE
1. 2003 Tennessee Consolidated Retirement System
IV. REIMBURSEMENTS - transportation, lodging,
food, enterainment. (Includes those to spouse and
dependent children. See pp. 2S-27 of instructions.)
NONE
V. GIFTS. (Includes those to spouse and dependent
children. See pp. 28-31 of instructions.)
NONE - (No such reportable gifts.)
VI. LIABILITIES. (Includes those of spouse and
dependent children. See pp. 32-34 of instructions.)
CREDITOR, DESCRIPTION, VALUE CODE
1. SunTrust Mortgage. Richmond. VA Mortgage on
Rental Property #1, L
2. Pinnacle National Bank, Nashville, TN Mortgage
on Investment Property #2, O
3. Pinnacle National Bank, Nashville, TN Unsecured
Note, K
107a
Appendix i
VII. INVESTMENTS and TRUSTS ~- income,
value, transactions (includes those of the spouse and
dependent children. See pp. 34-57 of filing
instructions.)
A. Description of Assets (including trust assets)
Place "(X)" afier each asset exempt from prior
disclosure
B. Income during reporting period
(1) Amount Code (A-H)
(2) Type (eg. div, rent, or int)
C. Gross value at end of reporting period
(1) Value Code 2 (J-P)
(2) Value Method Code 3 (Q-W)
D. Transactions during reporting period
(1) Type (eg. buy, sell, merger, redemption)
If not exempt from disclosure
(2) Date Month- Day
(3) Value Code 2 (J-P)
(4) Gain Code 1 (A-
(5) Identity of buyer/seller (if private transaction)
1. Decberd Marble Granite None J W
2. Lot, Tim's Ford Lake, FranklinCo., TN None J W
3. Smalleap World Fund—American Funds A
Dividend K T
4. IRA, ,A.G.Edwards (American Funds-SmallCap
World and ICA) S None J T
5. A.G. Edwards A Dividend J T
6. Rental Property #1,Indian Shores, FL (1997
$172,000) E Rent NR
108a
Appendix E
7. Harbor Funds-Capital Appreciation A Dividend J
T
8. Legg Mason-Value Trust None K T
9. Centennial Money Market Acct (A.G. Edwards) A
Interest J T |
10. Orasure None K T
11. Bankatlantic Bancorp Inc. (BBX) A Dividend K T
12. Met Life A Dividend J T Buy 8/03 J
13. Callaway Golf A Dividend J T Buy 7/03 J
14, Jensen Fund None d 'T Buy 2/03 J
15. Levitt Corp Fla Spinoff BBX Bankatlantic
Bancorp Inc. 12/3 None J T
16. ANDRX Group/Corp. None J T Buy 2/03 J
17. ANDRX Group/Corp. A Dividend Sold 5/03 J A
18. Geaentech Inc. None J T Buy 6702 J
19. Genentech Inc. C Dividend Sold 6/11 J A
20. Investment Property #2 Nashville, TN(2003
$515,000) None O R Buy 12/03 O
1. Income Gain Codes
(See Columns BI and D4)
A= $1,000 or less
B= $1,001-$2,500
C= $2,501-$5,000
D= $5,001-$15,000
E= $15,001-$50,000
F = $50,001-$100,000
G= $100,001-$1,000,000
H1= $1,000,001-$5,000,000
H2= More than $5,000,000
2. Value Codes:
(See Columns C1 and D3)
109a
Appendix E
J= $15,000 or less
K= $15,001-$50,000
L= $50,001-$100,000
M= $100,001-$250,000
N= $250,001-$500,000
O= $500,001-$1,000,000
P1= $1,000,001-$5,000,000
P2= $5,000,001-$25,000,000
P3= $25,000,000-$50,000,000
P4= More than $50,000,000
3. Value Method Codes
(See Column C2)
Q= Appraisal
R= Cost (Real Estate Only)
S= Assessment
T= Cash/Market
U= Book Value
V= Other
W= Estimated
VIII. ADDITIONAL INFORMATION OR
EXPLANATIONS (Indicate part of Report.)
IX. CERTIFICATION.
I certify that all information given above (including
information pertaining to my spouse and minor or
dependent children, if any) is accurate, true, and
complete to the best of my knowledge and belief and
that any information not reported was withheld
because it met applicable statutory provisions
permitting non-disclosure.
110a
Appendix I
I further certify that earned income from outside
employment and honoraria and the acceptance of
gifts which have been reported are in compliance
with the provisions of 5 U.S.C. § 501 el seg., 5 U.S.C.
§ 7353, and Judicial Conference regulations.
NOTE: ANY INDIVIDUAL WHO KNOWINGLY
AND WILFULLY FALSIFIES OR FAILS TO FILE
THIS REPORT MAY BE SUBJECT TO CIVIL AND
CRIMINAL SANCTIONS (5 U.S.C. app. § 104)
KILING INSTRUCTIONS
Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301
One Columbus Circle, N .I.
Washington, D.C. 20544
llla
Appendix kh
FINANCIAL DISCLOSURE REPORT
FOR CALENDAR YEAR 2004
Report Required by the Ethics in Government Act of
1978 (5 U.S.C. app. §§ 101-111)
1. Person Reporting (Last name, I irst name, Middle
initial) Wiseman, Jr., Thomas A
2. Court or Organization
Tennessee, Middle
3. Date of Report
05/10/2005
4. Title (Article Ill Judyes indicate active or senior
status; magistrate judges indicate full- or part-time)
U.S. District Judge, Sr.Status
5. Report Type (check appropriate type) Annual
6. Reporting Period
01/01/2004 to 12/31/2004
7. Chambers or Office Address
777 U.S. Courthouse
801 Broadway
Nashville TN 37203
8. On the basis of the information contained in this
Report and any modifications pertaining thereto, it
ll2Za
Append “a
IS, IN My Opinion, in comphance with applicable lay
and reyvulation
IMPORTAN' NOTES The mnstruction
accompanying this form must be followed. Complet
all parts, checking the NONE box for each part
where you have no reportable Information. Sign on
last pape
I. POSITIONS. (Reporting individual only; see pp
9-153 of filang instructions)
Position, Name of Organization/Intity
1. Board Member Sister Cities of Nashville
2. Adjunct Professor of Law Vanderbilt Universit:
sx hool Ol Law
iH. AGREEMENTS. (Reporting individual only Te
pp. 14-16 of filing instructions)
NONE (no reportable agrecments)
Hl. NON-INVESTMENT INCOME. (Reporting
individual and = spouse ee pp. 17-24 of filing
mstructions)
A. iler's Non-Investment Incom
DATH, SOURCKH AND TYPE, GROSS INCOME
1. 2004 Vanderbilt University School of Law
Adjunct Prof 4,200.00
2. 2004 Tennessee Consolidated Retirement Syste
1] Sia
Vppe nad ! /
Bb. Spouse's Non Investment Income (If you wer
manned during adbiy portion ()! tile reportiny Jerail
plea ( complete thi echwor (dollar amount
'
not required ¢ Keept lor honoraria)
DATE, SOURCE AND TYPE
1 YOOA Leona ee Consolidated Retirement tery
IV. REIMBURSEMENTS | transportation, lodging
food enterainment (hrichuds those to polse mod
dependent children. Se pp /ofinstructions.)
NON Is
V. GIETS Clryclerce those lo) protlye mid dependent
children. Se pp 25-3) OF mstructions. )
LONI - ONo such reportable pitts.)
Vi. LIABILITIES. Qneludes those of spouse and
dependent children ee pp. b2-454 of instruetior )
CREDEPOR, DESCRIPTION, VALU CODIe«
}). SunTrust Mortpape. Richmond. VA Mortyage on
Rental Property #1, 1.
2. Pinnacle National Bank, Nashville, TN) Mortgages
on Investment Property #2, O
$b. Pinnacle National Bank, Nashville, TN Unsecured
Note K
ll4a
Appendix EK
Vil. INVESTMENTS and TRUSTS - income,
value, transactions (includes those of the spouse and
dependent children. See pp. 34-57 of filing
instructions.)
A. Description of Assets (including trust assets)
Place "(X)" afier each asset exempt from prior
disclosure
B. Income during reporting period
(1) Amount Code (A-H)
(2) Type (eg. div, rent, or int)
C. Gross value at end of reporting period
(1) Value Code 2 (J-P)
(2) Value Method Code 3 (Q-W)
D. Transactions during reporting period
(1) Type (eg. buy, sell, merger, redemption)
If not exempt from disclosure
(2) Date Month- Day
(3) Value Code 2 (J-P)
(4) Gain Code 1 (A-
(5) Identity of buyer/seller (if private transaction)
1. Decherd Marble Granite None J W
2. Lot, Co., TN None J W Sold 05/04 J C Abbott
3. Smalleap World Fund-American Funds A
Dividend K T
4. IRA, A.G. Edwards (American Funds-SmallCap
World and ICA) SA Dividend J T
5. A.G. Edwards A Dividend J T
6. Rental Property #1, Indian Shores, FL (1997
K$172,000) Rent N R
lld5da
Appendix I
7. Harbor Funds-Capital Appreciation A Dividend J
T
8. Legg Mason-Value Trust None K T
9. Centennial Money Market Acct. (A.G. Edwards) A
Interest J T
10. Orasure None K T Sold 1104 KC
II. Bankatlantic Bancorp Inc. (BBX) A Dividend K T
Sold 3/04 J D
12. MetLife A Dividend J T Sold 2/04 J B
13. Callaway Golf A Dividend J T Sold 9/04 J --
14. Jensen Fund A Dividend J T
15. Levitt Corp Fla Spinoff BBX Bankatlantic
Bancorp Inc. 12/3 None J T
16. Invesment Property #2 Nashville, TN (2003
$515,000) None OR
17. TIVO None J T Bought 01/04 J
18. TIVO None J T Sold 12104 J —
19. Eli Lily A Dividend J T Bought 03/04 J
20. Eh Lily A Dividend J T Bought 10/04 J
1. Mylan Laboratories A Dividend J T Bought 04/04
22. Dreyfus,Greater China Fund A Dividend J T
Bought 03/04 J
1. Income Gain Codes
(See Columns BI and D4)
A= $1,000 or less
B= $1,001-$2,500
C= $2,501-$5,000
D= $5,001-$15,000
K= $15,001-$50,000
Ik = $50,001-$100,000
G= $100,001-$1,000,000
116a
Appendix E
H1= $1,000,001-$5,000,000
H2= More than $5,000,000
2. Value Codes:
(See Columns C1 and D3)
J= $15,000 or less
K= $15,001-$50,000
L= $50,001-$100,000
M= $100,001-$250,000
N= $250,001-$500,000
O= $500,001-$1,000,000
P1= $1,000,001-$5,000,000
P2= $5,000,001-$25,000,000
P3= $25,000,000-$50,000,000
P4= More than $50,000,000
3. Value Method Codes
(See Column C2)
Q= Appraisal
R= Cost (Real Estate Only)
S= Assessment
T= Cash/Market
U= BookValue
V= Other
W= Estimated
VIII. ADDITIONAL INFORMATION OR
EXPLANATIONS (Indicate part of Report.)
IX. CERTIFICATION.
[ certify that al] information given above (including
information pertaining to my spouse and minor or
dependent children, if any) is accurate, true, and
ll7Va
Appendix E
complete to the best of my knowledge and belief and
that any information not reported was withheld
because it met applicable statutory provisions
permitting non-disclosure.
I further certify that earned income from outside
employment and honoraria and the acceptance of
gifts which have been reported are in compliance
with the provisions of 5 U.S.C. § 501 el seq., 5 U.S.C.
§ 7353, and Judicial Conference regulations.
NOTE: ANY INDIVIDUAL WHO KNOWINGLY
AND WILFULLY FALSIFIES OR FAILS TO FILE
THIS REPORT MAY BE SUBJECT TO CIVIL AND
CRIMINAL SANCTIONS (5 U.S.C. app. § 104)
FILING INSTRUCTIONS
Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the United States Courts
Suite 2-301
One Columbus Circle, N .E.
Washington, D.C. 20544
118a
Appendix I
VUCast: Vanderbilt University News Network
Mayor Bill Purcell honored as distinguished
alumnus at Vanderbilt Law
School;
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.