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Dundee v. University Hospitals Corp.

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

December 3, 2019

FRANK DOMINIC DUNDEE, Plaintiff,
v.
UNIVERSITY HOSPITALS CORP, et al., Defendants.

          DAN AARON POLSTER, JUDGE

          REPORT & RECOMMENDATION (DOC. NOS. 5 & 6)

          JONATHAN D. GREENBERG UNITED STATES MAGISTRATE JUDGE

         This case is before the Court upon a referral for general pretrial supervision, dated July 23, 2019. (Doc. No. 8.) Currently pending is Defendants' Danialle Lynce, Jason Glowczewski, Shawn Osborne and Rachael Lerman (collectively, the “Individual Defendants”) Motion to Dismiss For Failure to State a Claim Against the Individual Defendants. (Doc. No. 5.) Plaintiff Frank Dominic Dundee filed a Brief in Opposition on September 24, 2019, [1] to which Defendant replied, and Plaintiff filed a surreply.[2] (Doc. Nos. 15, 16, 19.) Also currently pending is Defendant University Hospitals Health Systems, Inc.'s (“UH”) Motion for Judgment on the Pleadings. (Doc. No. 6.) Plaintiff Frank Dominic Dundee filed a Brief in Opposition on September 24, 2019, to which Defendant replied, and Plaintiff filed a surreply. (Doc. Nos. 14, 17, 18.)

         For the following reasons, the Court recommends that the Individual Defendant's Motion to Dismiss (Doc. No. 5) be GRANTED and that Defendant UH's Motion for Judgment on the Pleadings (Doc. No. 6) be GRANTED IN PART and DENIED IN PART.

         I. Procedural Background

         On May 20, 2019, Plaintiff Frank Dominic Dundee (“Plaintiff” or “Dundee”) filed a pro se Complaint in this Court against Defendants Danialle Lynce, Jason Glowczewski, Shawn Osbourne, and Rachael Lerman (the “Individual Defendants”), and Defendant University Hospitals Health Systems, Inc. (“UH, ” or, collectively, “Defendants”) alleging retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a); medical exams in violation of Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 2000e-2(a); and disability discrimination and harassment in violation of Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 2000e-2(a). (Doc. No. 1.)

         Defendants jointly filed an Answer on July 19, 2019. (Doc. No. 4.) On the same day, the Individual Defendants also filed a Motion to Dismiss for Failure to State a Claim and Defendant UH also filed a Motion for Judgment on the Pleadings (Doc. Nos. 5 & 6.)

         II. Factual Allegations

         The Complaint contains the following factual allegations[3]:

         Between Spring 2012 and October 2013, Dundee was subjected to at least three unwelcome sexual advances by his supervisor, Rachael Lerman. (Doc. No. 1-1 at 3.) He did not respond to her advances “in-kind, ” and, as a result, “was singled out for specious corrective actions about manufactured and magnified infractions.” (Id.) He “was reluctant to file charges against his supervisor for fear of retaliation and out of concern for her family.” (Id.)

         In November 2014, Dundee met with the UH Compliance Department to report the hostile work environment. (Id. at 4.) UH agreed to have Rebecca Besselman, UH Geauga Human Resource Officer, present at all meetings between Dundee and Ms. Lerman, and further agreed that Danialle Lynce, the Regional HR Director, whom Dundee accused of bias, would not be present. (Id.)

         On June 26, 2016, Dundee filed a complaint of sexual harassment against his supervisor, Rachael Lerman, based on the unwanted sexual advances she had made between Spring of 2012 and October 2013. (Id. at 3.) This complaint was sent to Rebecca Besselman, UH Geauga Human Resource Officer, for investigation. (Id.) Ms. Lynce, who Dundee had accused of bias in 2014, conducted the investigation of Dundee's accusations, along with UH Compliance attorney Ed Soyka. (Id.) After a 5-week investigation, they reached no finding on the merit of Dundee's allegations, but dismissed his complaint as “untimely.” (Id.)

         On August 4, 2016, during his evening shift as a staff pharmacist at UH Geauga Medical Center, Dundee received a call from his regional supervisor, Jason Glowczewski, asking him to attend a meeting the following morning at 7:00 a.m. at the HR offices. (Id. at 5.) He was told the meeting would be about the concern that he had filed. (Id.) Days earlier, he had received an email from Ms. Lynce informing him that the investigation of his complaint had been closed with no findings. (Id.)

         The August 5, 2016 meeting was attended by Dundee, Ms. Lynce and Mr. Glowczewski. (Id. at 6.) Dundee was provided with examples of inappropriate language in documents he had “written as attachments to disciplines and substandard performance reviews, ” and told he would be fired if he ever expressed such sentiments in the future. (Id.)

         On August 8, 2016, Dundee sent an email entitled “An F.Y.I. to UH Compliance Department regarding EEOC recognized protected activities retaliation” to Ed Soyka, an attorney in the UH Compliance Department who had been present at the November 2014 meeting. (Id. at 8-9.) He detailed the events of the August 5 meeting and explained why he believed they were a violation of Title VII. (Id.) He never received a reply. (Id. at 9.)

         On June 26, 2017, Dundee returned to work after a week-long vacation, and was immediately called to a corrective-action hearing by Ms. Lynce. (Id. at 9.) Dundee reported to the HR office, and found Ms. Lynce, Ms. Lerman and a UH security guard waiting for him. (Id. at 10.) Ms. Lynce and Ms. Lerman informed Dundee that he was receiving a “final step warning” because he had violated UH policies on diversity and contributed to a “Conflictive Work Relationship.” (Id. at 10-11.) The violations were based on the phrases “you're a good kid, ” “He's a pup with practically no experience, ” and “A nice boy, but, ” which he used in emails addressed to Ms. Besselman. (Id. at 11.) Dundee was informed that he would have to attend counseling sessions with the UH Employee Assistence Program (“EAP”) in order to keep his job. (Id. at 13.)

         On July 10, 2017, Dundee filed charges of retaliation in violation of Title VII with the EEOC, relating to the foregoing events. (Id. at 13.)

         On July 26, 2019, Dundee attended his first required EAP counseling session with David Riccardi at the UH Ahuja Medical Center. (Id.) Mr. Riccardi told Dundee that he would be required to participate in future counseling sessions and also participate in a 3-hour psychiatric exam. (Id. at 14.)

         Dundee asked the UH Compliance Department if his participation in EAP counseling could be suspended until the EEOC ruled on whether it was a violation of Title I of the ADA, as Dundee asserted. (Id ...


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