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O'Donnell v. University Hospitals Health System

United States District Court, N.D. Ohio, Eastern Division

April 4, 2018

Alison O'Donnell. Plaintiff.
University Hospitals Health System, et al., Defendants.



         This matter is before the Court on the Defendants" Motion for Summary Judgment. (ECF #25). For the reasons that follow. Defendants' Motion for Summary Judgment is granted.


         Plaintiff Alison O'Donnell brings this action against Defendants University Hospitals Health System ("UH"). Dr. Naveen Uli, Dr. Sumana Narasimhan. Dr. Rose Gubitosi-Klug and William Rebello alleging claims of Failure to Accommodate in violation of the Americans with Disabilities Act ("ADA"). 42 U.S.C. § 12112 et seq.. (Count I); Disability Discrimination in violation of the ADA (Count II); Retaliation based on Disability Discrimination in violation of the ADA (Count III); Race Discrimination in violation of Title VD of the Civil Rights Act of 1964 ("Title VII"). 42 U.S.C. § 2000e et seq.: (Count IV): Retaliation based on Race Discrimination in violation of Title VII (Count V); Disability Discrimination in violation of Ohio Rev. Code § 4112 (Count VI); Retaliation based on Disability Discrimination in violation of §4112 (Count VU); Race Discrimination in violation of §4112 (Count VIE); Retaliation based on Race Discrimination in violation of §4112 (Count DC) and Aiding and Abetting in violation of §4112.02(J) against Defendant Rebello.[2]

         Plaintiff is an African American physician. She entered U.H's three year fellowship in Pediatric Endocrinology on June 1, 2010. (Compl. ¶¶ 28-30) The Fellowship Program trains physicians for academic-related careers in Endocrinology and gives licensed physicians the opportunity to become board-certified pediatric endocrinologists. (Plaintiffs Aff. ¶1) Only two applicants are accepted into the Fellowship Program each year, and in general, six fellows are in the Program at any one time. (Plaintiff s Dep. p. 69) During Plaintiffs time in the Fellowship program. Dr. O'Donnell was the only African American in the program, while the rest of the fellows were Indian, Asian and Caucasian. (See Plaintiffs Dep. p. 208; Compl. ¶¶ 28-32)

         At the time that Plaintiff was admitted to the Fellowship Program, the Program was run by seven UH faculty members including the three remaining individual defendants. In order to successfully complete the Fellowship Program, the physicians who run the Fellowship Program, including the individual defendants, have to certify that the fellows completed the requirements of the program, which are national standards. All fellows must meet those standards in order to complete the Fellowship Program. (Plaintiffs Dep. p. 63-65) The seven faculty members work closely with the fellows as teachers and in overseeing patient care. (Plaintiffs Dep. p. 70-71) In addition, the faculty members conduct annual performance evaluations and advise fellows when performance issues arise. (Plaintiff Dep. Ex. 12) There is a long list of expectations that fellows are expected to meet including treating patients, consulting with other pediatric physicians on Endocrinology issues, self-education of assigned topics, attending and participating in educational and administrative meetings and research. (See Plaintiff Dep. Ex. 5).

         In June of 2011. following Plaintiffs first year in the Fellowship Program, Plaintiff was advised that she had serious performance issues and was given a Remediation Plan. (Plaintiff Dep. Ex. 11) The Remediation Plan detailed the deficiencies in Plaintiffs performance noted by seven faculty members for the period from January through June 2011 along with seven steps that Plaintiff should take to remediate her performance issues. The Remediation Plan was signed by Dr. Uli and Plaintiff on August 9, 2011. The copy of the Plan, attached as Exhibit 11 to Plaintiffs deposition, has notes apparently added by Plaintiff which state her issues with the fairness of her evaluation and her position that she will not accept any penalties or restrictions being placed upon her as she feels that she has been "wrongfully accused and in general have been mistreated by this program." (Id.)

         Before she began the Fellowship Program, Plaintiff was diagnosed with social anxiety disorder and social phobia by Dr. Francoise Adan, her treating psychiatrist, on July 2, 2009. Plaintiff was treated intermittently by Dr. Adan from July 2009 through January, 2013 and was prescribed anxiety medications Lexapro and Klonopin. Plaintiff experienced "physical symptoms of anxiety around social situations, heart racing, sweating, speaking fast, poor concentration, mind going blank and jittery." (Adan Dep. p 22) Plaintiffs disorder impacted both her personal and professional life. (Id. at ¶ 27) While treating with Dr. Adan, Plaintiff began counseling with Dr. Paul Minnillo, a UH staff psychologist. Dr. Minnillo testified that Plaintiffs anxiety disorder was "very pervasive, very profound/' (Minnillo Dep. p. 35) Plaintiff states that early in her fellowship she disclosed her social anxiety disorder to Dr. Uli. (Plaintiff Aff. ¶ 3) Dr. Uli said that at the time he met with Plaintiff about the Remediation Plan, she had not disclosed that she had been diagnosed with a social anxiety disorder but had mentioned that she had social anxiety and that her innate shyness and social anxiety as well as her cultural upbringing prevented her from speaking out of turn. (Uli Dep. p. 111)

         Plaintiff states that after she disclosed to Dr. Uli that she suffered from social anxiety disorder she was treated differently from other fellows. Plaintiff contends that the different treatment included receiving less time for orientation than other fellows; being assigned a presentation without prep time; being forced to complete work while on a pre-excused vacation day; being forced to see patients who were over an hour late to appointments despite protocol to have patient reschedule; being referred to by Dr. Narasimhan by her first name in front of patients instead of Dr. Mathews[3]; given clinical assignments with less notice than other fellows; being required to directly reschedule patient appointments; being accused of not writing patient notes or charts timely or thoroughly when Plaintiffs notes were more detailed than notes provided by Dr. Uli; and her ideas from research project were rejected and she was advised to work with another fellow on her project. (Plaintiff Aff. ¶¶ 4-16)

         On September 29, 2011, Plaintiff sent a letter to Dr. Uli complaining about unspecified transgressions against Plaintiff by Dr. Uli and the Fellowship program and threatened to take the matter to higher authorities if a work environment free from harassment, fear of retaliation and undue stress was not provided for her. (Uli Dep. Ex. 29) Apparently not satisfied with Dr. Uli's response, in October 2011 Plaintiff complained of disparate treatment to William Rebello, the manager of graduate medical education. (Plaintiffs Aff. ¶ 17) Plaintiff states that she complained a second time to Mr. Rebello and gave him a written summary of the disparate treatment taken against her. (Id. at ¶ 18; ECF #31 -6) She told Mr. Rebello that she believed she was being discriminated against based on her race and mentioned her social anxiety disorder. (Rebello Dep. p. 27-28.) Mr. Rebello referred Plaintiff to the human resources department and also to Dr. Jerry Shuck, the head of the Graduate Medical Education Department. (Plaintiffs Dep. p. 117)

         On February 11, 2012, Plaintiff sent an email to Claudia Hoyen, in UH's human resources office, with a copy to Mr. Rebello stating that she was concerned that the Fellowship program was not complying with her Remediation Plan as she was not receiving a monthly evaluation and immediate feedback. She stated that she felt that the program was trying to make it so unpleasant for her that she would leave. (Uli Dep. Ex. 31) Ms. Chester from human resources testified that she met several times with Plaintiff to discuss her concerns with her treatment by Program faculty and that she or others in the human resources department investigated all of Plaintiff s complaints and determined that none of them were substantiated. (Chester Dep. pp. 106-109).

         Plaintiff sent an email to the faculty of the program on February 12, 2012, stating that it had come to her attention that the faculty wanted her to speak more during Wednesday conferences and were interpreting her silence as ignorance. She told them that her "culture/religion, learning style, shyness and anxiety make it extremely difficult for me to just shout out answers. Therefore, I invite you to ask me questions." In addition she told them that she planned to make more than the required number of presentations and hoped that this compromise would suit everyone's needs. (Uli Dep. Ex. 32)

         The program faculty determined that Plaintiffs progress was deficient and in late February 2012, Plaintiff was given a Performance Alert Notice because her performance was identified as marginal or unsatisfactory- The performance alert identified deficiencies in patient care, medical knowledge, practice based learning and improvement, interpersonal and communication skills, professionalism and failure to obtain certification in general pediatrics. While the faculty noted the effort that Plaintiff had been putting in, with improvement in her knowledge base, the consensus was that she was not performing at the level expected of a second year fellow and recommended that her fellowship be extended by 12 months to allow adequate time for Plaintiff to develop the mandatory core competencies required for sub-specialty certification. (Plaintiffs Dep. p. 180, Ex. 13) In a note written on the bottom of Exhibit 13 dated February 29, 2012, Dr. Uli states that he discussed the performance alert with Plaintiff and after reviewing its contents, she refused to sign it. She told him she would consider extending her fellowship for six months but would not extend for a year. (Id.) The performance alert was also based upon a summary of group/fellow clinical evaluation which compared Plaintiffs performance reviews to her peers in the Fellowship Program. (Plaintiffs Dep. Ex. 14) The summary demonstrates that Plaintiffs evaluations were significantly below her peers in almost every performance category evaluated. (Id.)

         Plaintiff submitted a formal request for disability accommodation to UH in March 2012. (Plaintiff Aff. ¶ 21) An ADA Health Care Provider/Physician Certification form, with a summary of the essential functions for Plaintiffs fellowship program, was provided to Plaintiff for submission to her physician. (Adan Dep. Ex. 48) On May 3, 2012, Dr. Adan signed the Certification form stating that Plaintiff had a disability that substantially limits one or more major life activities. Dr. Adan circled the following essential function:

Actively participate in all educational sessions of the division, with adequate preparation on assigned topic presentations. Take an active role in educating medical students, residents, nurses and other medical personnel.

         Dr. Adan wrote that Plaintiffs social phobia and difficulty in unknown social situations affected Plaintiffs ability to perform an essential function of her position, in that it affects her ability to speak publicly in case conference, specifically when un-rehearsed. Dr. Adan suggested a permanent accommodation of not evaluating Plaintiff on case conference, particularly when un-rehearsed. (Id.)

         The Program faculty believes that the weekly department meetings attended by all attending physicians, faculty, fellows and nurses, are essential to the Fellowship Program because high level Pediatric Endocrinology cases are analyzed and the group analysis provides the faculty with the ability to determine the educational level of fellows. (Uli Dep. p. 115, 158-59; Narasimhan Dep. p. 83-84; Gubitosi-Klug Dep. p. 59) Because the weekly department meetings are critical to patient care and the educational development of fellows, the evaluation of fellows based upon their participation in the weekly meetings is an essential function of the fellowship program. Based upon the faculty's review of the accommodation request by letter dated June 14, 2012, UH denied Plaintiffs request for an accommodation because case "conference participation is an essential function of [Plaintiffs] position as a fellow and the attendings must have the ability to evaluate the fellows in this milieu." (Plaintiffs Dep., Ex. 8)

         The June 14 letter also advised Plaintiff that since UH was unable to permanently accommodate Plaintiff in her current position, Plaintiff will begin a leave of absence on July 1, 2012. As Dr. Adan reported that Plaintiff was currently undergoing treatment and showing some progress, there was hope that Plaintiff would continue to progress and return to the Program. (Id.)

         Plaintiff did not return to the Fellowship Program and sought other employment. Plaintiff states that she was hired by UH Ashtabula Pediatrics and scheduled to start on December 1, 2012. In order to take that job, Plaintiff was required to resign from the Fellowship Program. (Plaintiff Aff ¶¶ 26-28) Plaintiff submitted her resignation letter on December 16, 2012. (ECF #31-Ex. 8) Thereafter, on January 17, 2013, Dr. Nochomovitz, President of UH Physician Services, notified Plaintiff that her Memorandum of Understanding regarding joining UH Ashtabula Pediatrics was rescinded because there was no longer a need for another pediatrician at that site. (ECF #31, Ex. 9) After leaving the Fellowship Program Plaintiff has worked as a physician for One Health Ohio and Akron Children's Hospital. (Plaintiff Dep. at 33-34)

         Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on May 1, 2013.[4]


         Summary judgment is appropriate when the court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The burden of showing the absence of any such "genuine issue" rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, ' which it believes demonstrates the absence of a genuine issue of material fact.

Celotex v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV. P. 56(c)). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. The court will view the summary judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, "[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence presented is "merely colorable" and not "significantly probative, " the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most civil cases involving summary judgment, the court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252.

         Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmover. The nonmoving party may not simply rely on its pleadings, but must "produce evidence that results in a conflict of material fact to be solved by a jury.'' Cox v. Kentucky Dep't of Tramp., 53 F.3d 146, 149 (6th Cir. 1995). FED. R. CIV. P. 56(e) states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

         The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as an automatic grant of ...

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