United States District Court, N.D. Ohio, Eastern Division
Alison O'Donnell. Plaintiff.
University Hospitals Health System, et al., Defendants.
C. NUGENT, UNITED STATES DISTRICT JUDGE
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.
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
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. ¶¶
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).
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."
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)
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; 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)
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)
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).
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)
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.
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.
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.)
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)
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.)
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)
filed a charge of discrimination with the Equal Employment
Opportunity Commission ("EEOC") on May 1,
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).
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.
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
Federal Rules identify the penalty for the lack of such a
response by the nonmoving party as an automatic grant of