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Hendershott v. St. Luke's Hospital

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

January 6, 2020

Mark Hendershott, Plaintiff,
v.
St. Luke's Hospital, Defendant.

          MEMORANDUM OPINION

          JEFFREY J. HELMICK UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Plaintiff, 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).

         II. Background

         Mark 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.).

         A. Hendershott's History at St. Luke's Hospital

         According 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, & 24-11).

         After 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).

         Greenhagen met informally with Hendershott to discuss these concerns at least two times before ultimately holding a coaching[1] 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 2012.

         Despite 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 treatment. (Id.).

         B. The May 10, 2015 Incident

         On May 10, 2015, a “code blue[2]” 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).

         Two 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 at 5).

         Inman 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).

         Sessler 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).[3] 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).

         After 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.).

         Kukiela 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 at 11).

         Sometime 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).

         The 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).

         After 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).

         The 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).

         After 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.

         Following 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).

         Kukiela 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.[4]

         On May 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.

         Hineline, 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.).

         C. SLH terminates Hendershott's employment.

         There 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.

         What is 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).

         According 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).

         According 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. at 22).

         Aside 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).

         Hendershott 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 3).

         III. Standard

         Summary 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).

         IV. Discussion

         A. Age Discrimination ...


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