United States District Court, N.D. Ohio, Western Division
JEFFREY J. HELMICK UNITED STATES DISTRICT JUDGE.
Mark Hendershott, filed suit against Defendant St. Luke's
Hospital (“SLH”), alleging violations of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §
623(a)(1), the Americans with Disabilities Act (ADA), 42
U.S.C.A. § 12100 et seq, and Ohio law, O.R.C.
§ 4112.02. (Doc. No. 1). Before me is a motion for
summary judgment filed by SLH. (Doc. No. 29). Hendershott
filed a memorandum in opposition, (Doc. No. 38), and SLH
replied. (Doc. No. 39).
Hendershott worked in the respiratory department of St.
Luke's Hospital from 1981 to 2015. (Doc. No. 1 at 1). In
2002, he became a night-shift supervisor. (Id.). He
held that position until his employment was terminated in May
2015. (Id.). Hendershott was 56 years old when SLH
terminated his employment. (Id.).
Hendershott's History at St. Luke's Hospital
to SLH, there were no significant issues with
Hendershott's work performance until 2012, when his
supervisor, Annette Greenhagen, began receiving complaints
from respiratory therapists under Hendershott's
supervision. (Doc. No. 29 at 7). These complaints alleged
Hendershott was unprofessional, inappropriately intimidated
his subordinates, and failed to communicate with them
effectively. (Doc. Nos. 24-4, 24-5, 24-9, 24-10, &
receiving these complaints, Greenhagen wrote an email to
Theresa Konwinski, the Vice President of Patient Care
Services at SLH, on June 26, 2012. (Doc. No. 24-12).
Greenhagen copied Administrative Nursing Director Donna
Tennant and Director of Human Resources Connie Sessler on
this email. In the email, Greenhagen relayed the information
she had received from Hendershott's employees and stated,
“Mark is a very long term, good employee, but has had
some mental health issues in the past.” (Doc. No. 24-12
at 1-2). Greenhagen then recommended Hendershott be referred
to Don Adamski, a Human Resources Consultant at SLH.
(Id. at 2).
met informally with Hendershott to discuss these concerns at
least two times before ultimately holding a
coaching with Hendershott on July 20, 2012. (Doc.
No. 24-13). Despite this, problems within the department
persisted. In August, Greenhagen received additional
complaints that Hendershott was creating a hostile work
environment. (Doc. No. 24-14). Hendershott, for his part, had
his own complaints about the way the department was run in
the problems throughout 2012, Hendershott was not subjected
to formal discipline until 2013, when he was suspended for
one day for using profanity at work to describe a coworker.
(Doc. No. 23-3). The disciplinary action also required
Hendershott to see Adamski. (Doc. No. 23-3). According to
Hendershott, Adamski recommended he seek counseling for anger
issues. (Doc. No. 24-1 at 23). Hendershott refused, telling
Adamski that he did not have anger issues but did have a
history of depression, for which he was already receiving
The May 10, 2015 Incident
10, 2015, a “code blue” was called when a patient
was brought into the emergency room at SLH in full
respiratory arrest. According to Tara Inman, a night-shift
respiratory therapist at that time, Hendershott touched her
inappropriately during this code blue. In her deposition
testimony, Inman stated the following:
After I attempted to hand him an oxygen connection, a green
hose hooked to the wall, and he shook his head, no. I had to
set it down because I was ambling a patient with one hand,
and my hand was slipping.
I was ambling with my right hand, and my hand was slipping,
so I needed both hands. So I set that down to amble with both
hands. And he came around to the back of me and reached
around with his right arm across the front of me, and with
his left arm across the back, his right arm was low and
touching, grazed across my breasts, and held there while he
did something with the ventilator that was hanging on an IV
pole that was next to my head.
(Doc. No. 22-1 at 27). Hendershott denies intentionally
touching Inman in this manner. (Doc. No. 24-1 at 24-27).
days later, on May 12, 2015, Inman reported the incident to
Melissa Kukiela, Respiratory Therapy Manager and
Hendershott's immediate supervisor at the time. (Doc. No.
29 at 8). Kukiela was relatively new in the department,
having started at SLH in February 2015. (Doc. No. 29-1 at 1).
Seeing that Inman was visibly shaken as she relayed what had
happened, Kukiela decided to take the matter directly to the
Director of Human Resources, Connie Sessler. (Doc. No. 20-1
told both Kukiela and Sessler that Hendershott had touched
her inappropriately during the code blue on May 10. (Doc.
Nos. 20-1 at 5 & 26-1 at 7). Inman also told them about
an incident on May 11, the first day that Inman and
Hendershott had worked together following the May 10
incident, where Hendershott went out of his way to go to the
Cardiovascular Unit to see Inman. (Doc. Nos. 20-7 at 2 &
26-12 at 8). Inman told them Hendershott sat down across from
her in an area of the hospital he did not have to go to and
sat by her for several moments or minutes without speaking,
making her uncomfortable. (Doc. Nos. 20-1 at 6-7 & 26-1
at 7). Hendershott denies purposely seeking out Inman on that
occasion. (Doc. No. 24-1 at 27).
and Kukiela further testified that Inman told them the May 10
incident was not the first time Hendershott had made her
uncomfortable, though they did not go into detail beyond
saying she found him intimidating. (Doc. Nos. 26-1 at 7-8
& 20-7 at 2). Sessler did not press the issue or ask for
more detail regarding why Inman found Hendershott
intimidating because Sessler felt Inman was too visibly upset
for such questions at the time. (Doc. No. 26-1 at 8).
meeting with Inman, Sessler and Kukiela met with Haley
McClure, a respiratory therapist who had recently transferred
from the night shift, where Hendershott was her supervisor,
to the day shift. (Doc. No. 20-1 at 8). When asked about the
overall tone of the night shift, McClure immediately began
talking about Hendershott and some of the problems he had as
a supervisor. (Doc. No. 20-1 at 8). Specifically, McClure
told them Hendershott was intimidating as a supervisor and
would sometimes refuse to answer the phone or offer the
assistance she needed. (Id.).
testifies that she next went to Jean Sandrock, the director
of the ER Department, and Cheryl Herr, a manager in the ER
Department, to further investigate Inman's allegations.
(Doc. No. 20-1 at 8). Kukiela asked them if they had heard
about anything unusual happening in the ER on May 10 and,
according to Kukiela, both said no. (Doc. Nos. 20-1 at 8). In
her affidavit, Kukiela stated she asked those two “to
inquire of the ED staff that was present for the code if they
noticed anything unusual.” (Doc. No. 29-1 at 2). Herr
remembered being asked if she heard about anything unusual
and indicating that she had not, but she did not remember if
Kukiela had asked her to follow up with staff and ask if
anything unusual occurred. (Doc. No. 21-1 at 2). Sandrock
also could not remember whether she was asked to follow up
with staff on this matter. (Doc. No. 32 at 8-9). For reasons
discussed in greater depth later in this opinion, whether
Kukiela in fact asked those two to inquire further with staff
or not is immaterial. Kukiela did not think it was unusual
for neither of them to have heard about anything regarding
the May 10 code blue because she believed it was likely the
nurses and others in the room were focused on the patient at
the time rather than each other. (Doc. No. 29-1 at 2). SLH
did not interview anyone regarding the code blue incident,
but Sessler testified she would not have terminated
Hendershott based solely on those allegations. (Doc. No. 26-1
after meeting with Inman, Sessler and Kukiela met with
Administrative Nursing Director Donna Tennant about what
Inman had told them. (Doc. No. 23-1 at 9). According to
Tennant, Sessler and Kukiela told her that the May 10
incident was not the first time that Hendershott had made
respiratory therapists in the department feel uncomfortable.
(Doc. Nos. 23-1 at 9 & 23-5 at 2). But Sessler and
Kukiela did not mention by name who the other respiratory
therapists were that felt this way, and Tennant did not ask.
(Doc. No. 23-1 at 9).
next step in SLH's investigation was to meet with
Hendershott, which it did on May 18 after some scheduling
difficulties with Hendershott. Sessler, Kukiela, and Tennant
were all present at that meeting. The parties present
different stories of how that meeting unfolded. According to
SLH, Hendershott was uncooperative. He made it difficult to
schedule the meeting, and then when the meeting occurred, he
spent much of it saying he could not remember anything at all
about the event. (Docs. No. 23-5 at 2 & 20-1 at 10-11
& 26-1 at 9). According to Hendershott, he was treated
very rudely in the days leading up to the meeting and during
the meeting itself. (Doc. No. 24-1 at 24-27).
spending much of the meeting in silence, Hendershott
eventually denied intentionally touching Inman in the way she
alleged, and he asked for an opportunity to apologize to her.
(Doc. No. 24-1 at 28). Hendershott stepping down from a
supervisory role was also discussed at the meeting and
Hendershott did not oppose the idea. (Doc. Nos. 23-5 at 2
& 24-1 at 29-30). By the time the meeting had concluded,
the plan was for SLH to go forward with its investigation
into Inman's allegations and for Hendershott and Inman to
meet sometime in the coming days for his apology. Although
Inman initially agreed to a meeting with Hendershott so that
he could apologize, she changed her mind upon learning that
she and Hendershott would be working together on the same
shift after the meeting was to take place. (Doc. Nos. 22-1 at
15 & 20-1 at 10).
investigation continued. On May 19, 2015, Kukiela was
approached by Rachelle Johnson, the other respiratory
therapist supervisors on the night shift at that time. (Doc.
No. 20-1 at 11-12). According to Kukiela, Johnson told
Kukiela that Inman had told Johnson what happened on May 10,
and Johnson said there were other women on the night shift
who were uncomfortable with or around Hendershott. (Doc. No.
20-1 at 11-12). Johnson said that Hendershott would ask women
in the department for hugs and told Kukiela that another
respiratory therapist, Savannah Hineline, once told Johnson
that Hendershott had followed her home after work one time.
(Doc. No. 20-7 at 4).
hearing this, Kukiela reached out to Savannah Hineline, who
confirmed what Johnson had told Kukiela and said Hendershott
would ask her for foot rubs and stand over her and breathe in
a way that made her uncomfortable. (Doc. Nos. 20-1 at 12-14
& 20-7 at 4). Kukiela asked Hineline why she had not
reported these incidents, and Hineline told her she feared
Anne Greenhagen would think she was simply retaliating
against Hendershott for issues the two had in the past.
this conversation with Hineline, Kukiela called another
respiratory therapist, Tatiana Kholodovych, who told Kukiela
that she and Hendershott used to be friends but then he
started making her uncomfortable. (Doc. Nos. 20-1 at 15 &
20-7 at 5). Kholodovych told Kukiela there were times that
Hendershott would talk to her about foot rubs or hugs but
that she would not know how to react because English was not
her first language and she thought she might be taking the
comments the wrong way. (Doc. No. 20-1 at 15).
relayed what she was told by Johnson, Hineline, and
Kholodovych to Sessler and Tennant later that same day, May
19. At some point on either May 18 or May 19, Hendershott was
placed on paid administrative leave.
26, 2015, Sessler and Tennant continued the investigation by
meeting in person with four employees: Savannah Hineline,
Rachelle Johnson, Amanda Kohanski, and Haley McClure. (Doc.
Nos. 26-1 at 12-13 & 23-1 at 10). Sessler and Tennant did
not specifically mention Hendershott when they initially
asked these employees about the “general tone” in
the department during the night shift. (Doc. No. 26-12 at 4).
Despite this, each of the four employees brought up
Hendershott's name and they were generally consistent in
their comments about him as a supervisor.
Johnson, and McClure each said Hendershott would invade other
employees' personal space. (Doc. No. 26-12 at 4-5).
Hineline again said that Hendershott would ask her for foot
rubs at work. (Doc. No. 26-12 at 4). Johnson told Sessler and
Tennant that Hendershott often “blows up” on
employees at work and that employees are afraid of him
because of this. (Doc. No. 26-12 at 4). Kohanski similarly
said that employees had to walk on tiptoes around Hendershott
and “learn to play his game” in order to avoid
upsetting him. (Doc. No. 26-12 at 4). McClure reiterated many
of the concerns she had shared with Kukiela, describing
Hendershott as intimidating and explaining that employees
were often afraid to stand up to him. Although none of these
employees had these raised concerns about Hendershott prior
to the May 10 incident, Sessler and Tennant concluded that
this was because, as Kohanski told them, employees feared
retaliation from Hendershott. (Id.).
SLH terminates Hendershott's employment.
are some inconsistencies in the record regarding who made the
decision to terminate Hendershott's employment, when
exactly the decision was made, and what ultimately convinced
SLH that termination was appropriate.
clear is that the final disciplinary action memorandum was
prepared by Sessler on May 27 and signed by Kukiela, Tennant,
and Vice President Jill Trosin on May 28. The memorandum
indicates that Hendershott was fired for inappropriate
behavior. Although much of the memorandum refers to the
problems the other respiratory employees reported, the
memorandum also discussed the following as reasons for his
termination: negativity and resistance to the changes being
made in the department since Kukiela was brought in;
Inman's allegations regarding the May 10 code blue; and
Hendershott's lack of cooperation throughout the
investigation. (Doc. No. 26-11 at 1-2).
to Sessler, the decision was final on May 27, the same day
that Sessler wrote a final disciplinary action memorandum
detailing the reasons for Hendershott's termination.
(Doc. No. 26-1 at 18). According to Sessler, she called
Hendershott the evening of May 27, asked him to come meet
with her at work on May 28 and mailed the termination letter
on May 28 after Hendershott did not show up for the meeting.
(Doc. No. 26-12 at 6).
to Sessler, other than the May 18 meeting, SLH did not
attempt to meet with Hendershott at any point before deciding
to terminate his employment. (Doc. No. 26-1 at 18). But
Kukiela's testimony differs from Sessler's
characterization. She stated that the plan was for
Hendershott to have the chance to come in and tell his side
of the story in response to what was discovered in the May 26
conversations Sessler and Tennant had with Hineline, Johnson,
McClure, and Kohanski. (Doc. No. 20-1 at 21-22). She
explained: “If anything else would have come to light,
I don't know what the outcome would have been, but he
never showed up to talk to us about it.” (Id.
from the issues discussed above, Hendershott's job
performance was generally positive. Hendershott received
fifteen performance reviews during his time as a supervisor.
(Doc. No. 38 at 11). In six of these, Hendershott received
the highest rating an employee could at the time.
(Id.) In all but one of the remaining reviews,
Hendershott received the second highest rating.
(Id.). In his most recent performance review, signed
by Kukiela one month prior to his termination, Hendershott
received a “5-Distinguished Contributor, ” the
highest rating possible. (Id. at 12).
received his termination letter on June 5, 2015. He filed his
charge of discrimination with the Ohio Civil Rights
Commission on June 26, 2015, and received a “right to
sue” letter sometime after May 12, 2016. (Doc. No. 1 at
judgment is appropriate if the movant demonstrates there is
no genuine dispute of material fact and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
All evidence must be viewed in the light most favorable to
the nonmovant, White v. Baxter Healthcare Corp., 533
F.3d 381, 390 (6th Cir. 2008), and all reasonable inferences
are drawn in the nonmovant's favor. Rose v. State
Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir.
2014). A factual dispute is genuine if a reasonable jury
could resolve the dispute and return a verdict in the
nonmovant's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A disputed fact is
material only if its resolution might affect the outcome of
the case under the governing substantive law. Rogers v.
O'Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013).
Age Discrimination ...