Kavianpour v. Bd. of Regents of the Univ. Sys. of Ga.

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SARAH M. KAVIANPOUR, MD, Plaintiff, v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, doing business as Augusta University, et al., Defendants.

CIVIL No. 1:20-cv-00152-MLB-RGV

United States District Court, N.D. Georgia, Atlanta Division

January 27, 2023

MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

RUSSELL G. VINEYARD, UNITED STATES MAGISTRATE JUDGE.

Plaintiff Sarah M. Kavianpour, M.D. (“Kavianpour”), brought this action against defendants the Board of Regents of the University System of Georgia (“BOR”), doing business as Augusta University (“AU”), and the Medical College of Georgia Health Inc., doing business as Augusta University Medical Center, Inc. (“AUMC”) jointly referred to as “defendants,” and the following claims remain after the adjudication of pretrial motions to dismiss and related motions: disability discrimination and retaliation, in violation of the Americans with Disabilities Act (“ADA”), as amended by the ADA Amendments Act of 2008, 42 U.S.C. §§ 12101 et seq.; disability discrimination, in violation of Section 504 of the Rehabilitation Act (“Rehabilitation Act”); violations of the Georgia Whistleblower Act (“GWA”); and breach of contract arising out of her acceptance into and employment as a resident in AU's neurosurgery residency program from July 2018 until her termination in February 2019. See [Docs. 29, 32, 33, 34, 35, 61, 69, 73 & 90].^[1]Defendants have separately moved for summary judgment as to each of Kavianpour's remaining claims asserted against them, [Doc. 199 (AUMC's motion); Doc. 207 (BOR's motion)], which Kavianpour opposes, [Doc. 229 (response to AUMC's motion); Doc. 230 (response to BOR's motion)]. Defendants each have filed a reply in support of their respective motions for summary judgment. [Doc. 241 (AUMC's reply); Doc. 242 (BOR's reply)]. Kavianpour also has filed a motion for summary judgment, [Doc. 209], which defendants oppose, [Doc. 224 (AUMC's response); Doc. 225 (BOR's response)], and Kavianpour has filed replies in support of her motion, [Doc. 246 (reply to AUMC's opposition); Doc. 247 (reply to BOR's opposition)]. Defendants also have filed a renewed motion to exclude expert reports relied on by Kavianpour, [Doc. 248], which Kavianpour opposes, [Doc. 251]. For the reasons that follow, it is RECOMMENDED that defendants' renewed motion to exclude, [Doc. 248], be GRANTED IN PART and DENIED IN PART, that their motions for summary judgment, [Docs. 199 & 207], be GRANTED, and that Kavianpour's motion for summary judgment, [Doc. 209], be DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Preliminary Procedural Issues

1. BOR's Notice of Objections to Declarations, [Doc. 227]

BOR objects to the Court's consideration of the declarations of two witnesses relied on by Kavianpour in support of her motion for summary judgment, [Doc. 227], which Kavianpour opposes, [Doc. 237]. BOR has filed a reply in support of its objections, [Doc. 244], and before addressing the merits of Kavianpour's remaining claims, the Court must first determine whether it may properly consider these two declarations offered by Kavianpour in ruling on the pending dispositive motions.

BOR moves to exclude the declaration testimony of John Lott (“Lott”), [Doc. 209-8 (Lott Decl.)], who served as AU's interim Chief Compliance Officer (“CCO”) from May 2019 to July 2019 on a contractual basis through his employer, [id. ¶ 6], and Michele Reed (“Reed”), [Doc. 209-17 (Reed Decl.)], AU's Title IX Coordinator, [id. ¶¶ 2-3]. See [Doc. 227]. In particular, BOR contends that both declarations “contain speculative, vague, and foundationally baseless assertions, as well as assertions with no apparent connection to this lawsuit,” and that “[a]fter clearing away deficient assertions and assuming the remaining assertions are accurate,” the testimony is “duplicative of evidence from individuals with personal knowledge” and is “useless[.]” [Id. at 3 (emphasis and citations omitted)]. BOR states that while “the [d]eclarations may confirm some evidence already in the record,” that “considering neither Lott nor Reed were involved in the matter until several months after [Kavianpour's] termination,^[2] the [d]eclarations cannot refute [its] legitimate non-discriminatory reasons for implementing the drug testing protocol and, ultimately, terminating [Kavianpour's] employment.” [Id. at 4 (footnote added)].

Kavianpour responds to this particular argument by pointing out that BOR “authorized and directed [] Lott and [] Reed to conduct an internal investigation regarding [] Kavianpour's allegations” and that “BOR's argument that Lott and Reed's declarations are immaterial because their involvement occurred after [] Kavianpour's initial termination is without merit,” since “[l]ogically, it is never going to be the case that an employer's internal investigation of an employee's allegations of discrimination occurs prior to the conduct complained-of” and that the “results of an employer's own internal investigation of an employee's allegations are often proffered by employers when they support the employer's adverse action to demonstrate, for example, the exercise of reasonable care in response to an allegation.” [Doc. 237 at 7-8 (citations omitted)]. Kavianpour thus contends that the “notion that Lott and Reed became involved after the initial termination decision in February 2019[] is of no moment” and that their investigative findings are material to the issues on summary judgment. [Id. at 89].

The Court agrees with Kavianpour on this point and finds that the mere timing of Lott and Reed's involvement in this case does not render their declaration testimony immaterial. Moreover, although the declarations may contain “testimony duplicative of evidence from individuals with personal knowledge” or include speculative and vague assertions, [Doc. 227 at 3 (emphasis omitted)], these are insufficient reasons to exclude the testimony at the summary judgment stage of the case, see Montoya v. Orange Cnty. Sheriff's Dep't, 987 F.Supp.2d 981, 994 (C.D. Cal. 2013) (citations omitted) (explaining that while the Court may consider whether the evidence is relevant, it need not exclude evidence at the summary judgment stage on any of the grounds outlined in Federal Rule of Evidence 403 as those issues are more properly raised at trial); Alvarez v. T-Mobile USA, Inc., No. CIV. 2:10-2373 WBS GGH, 2011 WL 6702424, at *3 (E.D. Cal. Dec. 21, 2011) (emphasis and citation omitted) (explaining that “[o]bjections to evidence on the ground that the evidence is irrelevant, speculative, argumentative, vague and ambiguous, or constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself,” and that “[s]tatements based on improper legal conclusions or without personal knowledge are not facts and can only be considered as arguments, not as facts, on a motion for summary judgment,” and thus, “[i]nstead of challenging the admissibility of this evidence, lawyers should challenge its sufficiency” as “[o]bjections on any of these grounds are superfluous”); see also Garcia v. City of Grantville, CIVIL CASE NO. 3:17-cv-00169-TCB-RGV, 2020 WL 10142254, at *4 (N.D.Ga. Nov. 16, 2020), adopted by 2021 WL 2548701, at *4 (N.D.Ga. Jan. 6, 2021), aff'd sub nom. Garcia v. Riley, No. 21-10439, 2021 WL 4127070 (11th Cir. Sept. 10, 2021) (per curiam); Fed.R.Evid. 403 (permitting the Court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence,” but not requiring it to do so). Therefore, BOR's general objections on these grounds are overruled, and the Court will address the remaining arguments advanced by BOR as they pertain specifically to each of the declarations at issue.

a. Lott's Declaration

BOR argues that Lott's declaration should not be considered on summary judgment because he “repeatedly references his experience[] and claims to be [a] nationally recognized subject matter expert in Compliance, Privacy, and Risk Management,” and therefore, “it appears [Kavianpour] is attempting to rely on impermissible expert witness testimony,” but that Lott “was not disclosed as an expert witness under Federal Rule of Civil Procedure 26(a)(2)(A), Local Rule 26.2(C) . . ., and this Court's operative Scheduling Order” and “his untimely expert testimony should [thus] be excluded” as an impermissible “attempt to evade the expert witness disclosure requirements . . . by simply calling an expert witness in the guise of a layperson[.]” [Doc. 227 at 4-5 (citation and internal marks omitted)]. Kavianpour responds that Federal Rule of Evidence 701 “does not prohibit lay witnesses from testifying based on particularized knowledge gained from their own personal experiences,”^[3] and that “[w]hile this Court is not bound by the substance of [] Lott's compliance findings, his declaration is not inadmissible or contain expert testimony if BOR designated him as a compliance officer within its organization based on his particularized experience in that field, and he subsequently made observations and judgments about [] Kavianpour's allegations that he is now reporting to this Court.” [Doc. 237 at 9-10 (citations omitted)].

Although BOR argues that Lott's declaration testimony “constitutes inadmissible expert testimony from [a] lay witness[],” it “does not.” 523 IP LLC v. CureMD.Com, 48 F.Supp.3d 600, 635 (S.D.N.Y. 2014) (footnote and citation omitted). Kavianpour “does not proffer [Lott ] as [an] expert witness[ ], nor does [ Lott] testify about any technical or other specialized knowledge,” id. (internal citation and marks omitted),^[4] but rather, h...