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Lisan v. Wilkie

United States District Court, N.D. Ohio

January 9, 2020

Ronald M. Lisan, M.D., Plaintiff,
Robert Wilkie, Secretary of the United States Dep't of Veteran Affairs, Defendant



         Currently pending is the Motion for Summary Judgment (Doc. No. 29) filed by Defendant Robert Wilkie, Secretary of the United States Department of Veteran Affairs. For the following reasons, Defendant's Motion for Summary Judgment (Doc. No. 29) is GRANTED.

         I. Procedural Background

         On April 27, 2018, Plaintiff Ronald M. Lisan, M.D. (hereinafter “Plaintiff” or “Lisan”) filed a Complaint in this Court against Defendant Robert Wilkie, Secretary of the United States Department of Veteran Affairs (hereinafter “Defendant”), asserting claims for (1) sex discrimination and hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., (2) disability discrimination, denial of reasonable accommodation, and hostile work environment under the Rehabilitation Act of 1973, as amended, 29 U.S.C. 706, 791, et seq.; and (3) “reprisal/retaliation and hostile work environment.” (Doc. No. 1.) Plaintiff sought compensatory and punitive damages; an award of back pay, front pay, and benefits; pre and post judgment interest; and reasonable attorney fees and costs. (Id. at p. 25.) Plaintiff also sought an order permanently removing any records from his employment file relating to suspensions, warnings, police reports, findings or other adverse employment actions. (Id.)

         Defendant filed an Answer on July 16, 2018. (Doc. No. 9.) A Case Management Conference (“CMC”) was conducted shortly thereafter, at which various case management deadlines were set. (Doc. No. 11.)

         On May 21, 2019, Defendant filed a Motion for Summary Judgment with respect to each of Plaintiff's claims. (Doc. No. 29.) Plaintiff filed a Brief in Opposition (Doc. No. 50) on June 21, 2019, to which Defendant replied (Doc. No. 56) on July 12, 2019. Both parties obtained leave of Court to file Sur-Replies in August 2019. (Doc. Nos. 63, 65.)

         This matter was re-assigned to the undersigned on June 26, 2019 pursuant to General Order 2019-13. Defendant's Motion is now ripe and ready for resolution.

         II. Facts

         Plaintiff is a board-certified anesthesiologist. He worked for many years at MetroHealth and, in 2006, joined the Anesthesiology Department at the Louis Stokes Veterans Administration (“VA”) in Cleveland, Ohio as a staff anesthesiologist. (Lisan Depo. (Doc. No. 44) at Tr. 18-19, 27, 30.) In January 2015, Susan Raphaely, M.D., became the Service Chief of the VA Anesthesiology Department. (Raphaely Decl. (Doc. No. 29-2) at ¶ 1.) As such, Dr. Raphaely was Plaintiff's “first-line” supervisor. (Id. at ¶ 3.)

         In the summer of 2016, Plaintiff was formally diagnosed with obsessive compulsive disorder (“OCD”).[1] (Lisan Depo. at Tr. 35-36.) He took a medical leave of absence from September 7, 2016 until mid-November 2016, in order to undergo a course of specialized, in-patient treatment for this condition. (Id. at Tr. 46, 74, 123.)

         At some point in November 2016, Plaintiff communicated with Dr. Raphaely in preparation for his return to work. Plaintiff testified that he agreed to return to work on December 7, 2016 but explained that he was not ready to immediately resume on-call duties and, instead, needed “some time to slowly get back into taking call.”[2] (Lisan Depo. at Tr. 125-128.) Plaintiff testified that, at that time, he did not indicate a definite time frame to Dr. Raphaely for resumption of call duties, as he did not know how long it would take him to reacclimate to work. (Id. at Tr. 128-129.) Dr. Raphaely indicated that she thought Plaintiff's request would be doable but stated that she did not know what the rules were at the VA and needed to investigate and get back to him. (Raphaely Depo. at Tr. 120.) Dr. Raphaely testified that she then talked to her supervisor, VA Chief of Staff Murray Altose, M.D., who advised her that Plaintiff's request was not her decision. (Id. at Tr. 121-122.) Dr. Altose advised Dr. Raphaely to refer Plaintiff to the VA's Department of Reasonable Accommodation. (Id.)

         Plaintiff returned to work on December 7, 2016. Shortly thereafter, on December 19, 2016, he submitted a reasonable accommodation request, along with a short letter from licensed social worker Carole Marciano, L.S.W. (Doc. No. 29-3 at PageID#s 247-249.) This letter provided, in its entirety, as follows: “This will verify this patient's need to not be on call as he is recovering from a recent hospital stay.” (Doc. No. 29-3 at PageID# 249.)

         On that same date, Dr. Raphaely sent an email to Mr. Kafer forwarding Ms. Marciano's letter. (Doc. No. 29-3 at PageID# 243.) In this email, Dr. Raphaely indicated that “taking call is an essential function” of Plaintiff's position. (Id.) She concluded that “[a]fter much consideration, I feel that as a department we are unable to meet [Plaintiff's] request” for accommodation. (Id.)

         Several hours later, Mr. Kafer sent an email to Plaintiff and Dr. Raphaely, in which he indicated that the medical documentation submitted by Plaintiff was insufficient for the granting of a VA Reasonable Accommodation. (Doc. No. 29-3 at PageID# 250.) Mr. Kafer provided Plaintiff with the specific medical documentation paperwork that was necessary to consider his request. (Id.) He asked Plaintiff to indicate the expected duration of his “no call” request and offered the possibility of reassignment in the event that the VA was unable to accommodate his request. (Id.)

         Over the next two weeks, Plaintiff submitted additional documentation to Mr. Kafer. In particular, on December 22, 2016, Ms. Marciano completed a Request for Medical Documentation form which (1) requested that Plaintiff be excused from “on call” duties due to his need to have a regular sleep schedule, and (2) indicated that Plaintiff's ability to resume on call duties should be reviewed in six (6) months. (Doc. No. 29-3 at PageID# 256.) In addition, on December 26, 2016, Plaintiff provided a letter from psychiatrist M.J. Kramer, M.D., in which Dr. Kramer indicated, in relevant part, as follows:

It is my strong recommendation that Dr. Lisan be allowed to reacclimatize slowly at work, so as to avoid a precipitous decompensation which, if severe, could require readmission. In doing so, it will not only improve his depression, but also increase his chance to successfully return to work full time, without a worsening of his OCD symptoms. I would strongly recommend that Dr. Lisan have a no-call position for the foreseeable future, as he readjusts to his work schedule. To that end, I have also completed the Request for Medical Documentation form as well, outlining his functional limitations. Again, this request for no-call is temporary and time limited and if given this reasonable accommodation I believe he will be able to successfully return to a position in which he takes call in the near future.

(Doc. No. 29-3 at PageID# 258.)

         Shortly thereafter, on January 6, 2017, Plaintiff sent a letter, through counsel, to Louis Stokes VA Medical Director Susan Fuehrer and Chief of Staff Dr. Altose. (Doc. No. 50-1 at Page ID#s 3601-3603.) Therein, Plaintiff's counsel accused Dr. Raphaely of gender, age, and disability discrimination, as follows:

In less than two years after Dr. Raphaely became Chairperson, eight of twelve anesthesiologists separated from employment at the VA. Our investigation reveals that Dr. Raphaely was instrumental in pressuring and targeting them in a number of ways. Seven out of eight of them were males. All were approximately 40 years old or older. Two of the seven were over 50 (one of those two in the late fifties); one was approximately 65 and another over 70. Dr. Raphaely replaced the largely male anesthesiologists with 6 new anesthesiologists, including herself. Five of the six anesthesiologists she newly hired were females. None of them were in their upper fifties, their sixties or seventies. We suspect that in some instances the anesthesiologists she managed to get rid of were more qualified than the ones she hired to replace them. Moreover, Dr. Raphaely apparently excluded her entire staff of experienced anesthesiologists from any background information or contact with her intended new hires. Their views were unsolicited, yet they were the ones having to work with the new hires. Since Dr. Raphaely has become Chairperson, eight out of twelve staff anesthesiologists have left primarily because of the treatment of Dr. Raphaely. Dr. Omar will be shortly replaced by a new female hire of Dr. Raphaely.
There are specific instances of extreme deceptive and unfair harshness directed by Dr. Raphaely toward other older male anesthesiologists in her Department, particularly Dr. Moss however, at this time, we will concentrate on her treatment of our client, Dr. Lisan. We believe that Dr. Raphaely was aware of Ron's emotional vulnerability and exploited it. In doing so, she contributed to his deterioration which caused his breakdown, hospitalization, and need for recovery to full capacity, including “on call” time.
In Ron's case, knowing that he was just returning from a lengthy in-patient hospitalization, she browbeat him to do "on-call" service immediately upon his return to work, loading him up with particularly heavy “on-call" duty. * * * We have attached a recent email authored by Dr. Raphaely, dated December 19, 2016. Apparently, Dr. Raphaely knows that Dr. Lisan, with an OCD problem, is having typical difficulty with what is known in the OCD world as "flooding," which means overwhelming the OCD patient shortly after lengthy (successful) treatment with an immediately heavy and stressful load. This causes a vulnerable newly recovered OCD person to deteriorate. Although Ron's initial medical documentation form does not specify a time-limit for the "on-call" limitation, you will shortly receive that medical detail, if you have not already received it from his treating psychiatrist, Dr. Kramer. Ron needs a relatively brief reasonable but gradual adjustment period for “on-call" duty. The decision of Dr. Raphaely was to quickly heap a heavy load of it on him, to mischaracterize his need for a brief period of a temporary light “on-call" load as a requirement for an indefinite period of no "on-call" whatsoever, and finally making it clear that this mischaracterized circumstance requires to his being separated from his current position in the Department of Anesthesiology because at full tilt "on-call" is “an essential function" of the position (and a no "on -call" position is not currently available).
We request that his allegations be investigated. We request that no adverse action against him be taken at this time. We request a short period of time for his physician to more specifically verify the accommodation for which he is actually asking. And we request remediation for the continual misconduct that is being visited upon Ron and apparently upon others: Sex discrimination, age discrimination and (in Ron's case, in addition), disability discrimination. And, of course, it is unlawful to retaliate against him because of his communication of complaints and requests in this letter.


         On January 10, 2017, Dr. Raphaely advised Plaintiff that she and Mr. Kafer wished to meet with him regarding his accommodation request on January 12, 2017. (Doc. No. 29-3 at PageID#270.) Plaintiff advised that he wanted his lawyer to be present at this meeting. (Id.) Mr. Kafer then advised Dr. Raphaely to tell Plaintiff that the meeting was cancelled, which she did. (Doc. No. 29-3 at PageID#269.) One week later, on January 17, 2017, Mr. Kafer denied Plaintiff's request for accommodation. (Doc. No. 29-3 at PageID# 277.)

         Meanwhile, on January 9, 2017 (three days after Plaintiff's counsel's January 6, 2017 letter), Certified Registered Nurse Anesthetist (“CRNA”) Karin Bonfili reported to Dr. Raphaely that, the previous week, Plaintiff had “made unwelcome comments with sexual undertones” to her and that his comments made her feel “extremely uncomfortable.” (Bonfili Decl. (Doc. No. 29-4) at ¶ 2-3.) Ms. Bonfili also advised Dr. Raphaely that she should talk to CRNA Jessica Foster, who allegedly recently had a similar experience with Plaintiff. (Raphaely Decl. at ¶ 8a.) Dr. Raphaely spoke to Ms. Foster, who reported that she also had an “uncomfortable, unsolicited, and upsetting encounter with Dr. Lisan” the previous week. (Foster Decl. (Doc. No. 29-5) at ¶ 2-3.) Dr. Raphaely reached out to the VA's Equal Employment Opportunity (“EEO”) Office for guidance and was directed to Medical Center Policy (“MCP”) 003-003, entitled “Policy on the Prevention of Sexual Harassment.” (Raphaely Decl. at ¶8b; Kafer Decl. at ¶ 8.)

         Among other things, MCP 003-003 provides that “Management Officials, Service Chiefs, and Supervisors must take immediate and appropriate action upon receipt of actual or constructive knowledge of sexual harassment affecting any of their employees.” (Doc. No. 29-3 at PageID# 286.) Specifically, MCP 003-003 requires that, upon learning of sexual harassment affecting an employee, a supervisor must conduct an administrative inquiry, including conducting an interview of the alleged victim and recording “items pertinent to the incident, including dates, times, witnesses, and other information.” (Id. at PageID# 288.) In addition, this Policy directs that “the alleged harasser will be ordered to cease any further contact with the alleged victim except that of which is absolutely required by official business.” (Id.) MCP 003-003 also requires the investigating management official to administer “Sexual Harassment Allegation Checklists” to both the alleged victim and the alleged harasser. (Id. at PageID# 288.)

         Pursuant to this Policy, Dr. Raphaely asked both Ms. Bonfili and Ms. Foster to document their complaints. Ms. Bonfili completed a Report of Contact form on January 11, 2017, which was forwarded to the VA's EEO Office. (Bonfili Decl. at PageID# 309.) Ms. Foster also completed a Report of Contact form. (Foster Decl. at PageID# 320.) Dr. Raphaely administered “Sexual Harassment Allegation Checklist A” to both Ms. Bonfili and Foster. (Raphaely Decl. at ¶ 8c; Doc. No. 29-2 at PageID#s 192, 193.)

         On January 10 and 12, 2017, Dr. Raphaely administered “Sexual Harassment Allegation Checklist B” to Plaintiff. (Raphaely Decl. at ¶ 8d; Doc. No. 29-2 at PageID# 196.) This Checklist documented that, in accordance with MCP 003-003, Dr. Raphaely ordered Plaintiff “to cease any contact with the alleged victim except that which is absolutely required for official business.” (Doc. No. 29-2 at PageID# 196.)

         In mid-January 2017, Dr. Raphaely learned that CRNAs Elaine Costanzo and Rhonda Verb had also reportedly had uncomfortable encounters with Plaintiff. (Raphaely Decl. at ¶ 8b; Costanzo Decl. (Doc. No. 29-6) at ¶¶ 3-4; Verb Decl. (Doc. No. 29-7) at ¶¶ 3-4.) Dr. Raphaely reached out to Ms. Costanzo and Ms. Verb and asked them to document their experiences. (Id.) Both Ms. Costanzo and Ms. Verb completed Report of Contact forms, and were administered Sexual Harassment Checklist A. (Costanzo Decl. at ¶ 4; Verb Decl. at ¶4; Doc. No. 29-6 at PageID#331; Doc. No. 29-7 at PageID# 344; Doc. No. 29-2 at PageID# 194, 195.) On January 20, 2017, Dr. Raphaely administered Sexual Harassment Checklist B to Plaintiff and expressly ordered him to cease any contact with Ms. Constanzo and Ms. Verb except that which is absolutely required for official business. (Raphaely Decl. at ¶ 8d; Doc. No. 29-2 at PageID# 196.)

         Mr. Kafer and EEO Specialist Leshelle Reese investigated the sexual harassment allegations against Plaintiff throughout February and March 2017. (Kafer Decl. at ¶ 9.)

         While the investigation was underway, several of the CRNAs that had accused Plaintiff of harassment reported ongoing concerns regarding Plaintiff's behavior. On January 26, 2017, Ms. Costanzo emailed Mr. Kafer to report that she was “starting to feel threatened and uncomfortable doing my job because Dr. Lisan has been making his rounds to ALL of my CRNA colleagues and some of the operating room nurses to ‘tell his side of the story.'” (Doc. No. 29-6 at PageID#332.) Ms. Costanzo stated that she felt “terribly uncomfortable” and indicated “I'm at the point where I want to lock myself in the office and not come out or just not come to work.” (Id.)

         Subsequently, on March 7, 2017, Ms. Bonfili reported that Plaintiff came into an operating room where she was administering anesthesia to a patient undergoing surgery, and tried to talk to her about their relationship. (Bonfili Decl. at ¶ 4.) Plaintiff was not the anesthesiologist assigned to that surgery. (Lisan Depo. at Tr. 215-216.) Ms. Bonfili asked him to leave and he did. (Bonfili Decl. at ¶ 4.)

         The next day, Plaintiff again came into an operating room where Ms. Bonfili was administering anesthesia to a patient undergoing surgery, despite the fact that he was not the anesthesiologist assigned to that surgery. (Id. at ¶5.) Plaintiff and Ms. Bonfili disagree regarding what happened during this encounter. According to Ms. Bonfili, she was at the anesthesia machine, behind drapes that separated her from the other operating room staff and the door. (Id.) Ms. Bonfili claims that Plaintiff entered the operating room and “tried to talk to me about my sexual harassment complaint against him, among other things, and asked if it was ok to touch me.” (Id.) Ms. Bonfili states that she never said or communicated her consent, but “he put his hand on my back and shoulders anyway.” (Id.) Ms. Bonfili further alleges that Plaintiff told her “that if I talked to his lawyer, he would promise not ‘to sue me' if I would explain that he was joking about the sexual talk and never meant to hurt me.” (Doc. No. 29-4 at PageID# 310.) According to Ms. Bonfili, Plaintiff “discussed that if I talked to Dr. Raphaely there would be retaliation.” (Id.)

         At this point, another doctor, Dr. Marin Mannix, came into the room to tell Plaintiff that he needed to leave to attend another assignment. (Id.) Ms. Bonfili claims that Plaintiff refused to leave. (Id.) Dr. Mannix again asked Plaintiff to leave and he again refused. (Id.) Shortly thereafter, Dr. Schlesinger came into the room and told Ms. Bonfili to leave, stating that she (Dr. Schlesinger) would stay with the patient. (Id.) Ms. Bonfili quickly left and reported the incident to Dr. Raphaely. (Id.) Ms. Bonfili later filed a police report with the VA police. Among other things, she reported as follows:

I cannot concentrate on my work, I can't focus on caring for my patient and I am cornered in my operating room by Dr. Lisan with nowhere to go! I cannot do my job with him coming into my room. He has been told by EEO to stay away from the 4 female CRNAs that filed a complaint of sexual harassment. * * * I felt intimidated and extremely uncomfortable by Dr. Lisan's behavior!

(Doc. No. 29-4 at PageID# 311.)

         Plaintiff has a different recollection of the above incident. According to Plaintiff, Ms. Bonfili had previously told him that “we should talk this over and be done with it” but indicated that Dr. Raphaely had prohibited her from talking to Plaintiff about the allegations against him. (Lisan Depo. (Doc. No. 44) at Tr. 217.) Plaintiff testified he decided to talk to her alone, explaining as follows:

Because it had to be a private conversation without other members of our staff who were part of Team Raphaely reporting things back. So again I said is it okay if I talk with you for a few minutes. Yes. Are you sure. Yes. Any time you feel uncomfortable, you want me to leave I will do so. Yes. I want to bring up what you told me yesterday, when you told me before, which is you still -- you feel you really didn't want to file any complaints against me, just want to talk this over. You didn't want to file any complaints against me. Yes. You just want to talk this over and be done with this. Yes. But Dr. Raphaely prevented you from doing so. Yes.
So then I mentioned to her that it's obviously a significant legal issue, and contrary to her assertion I did not threaten in any way to sue her. That was in her report. Not even close. I simply said that if she's interested she can talk to my attorney and they'll try to help protect her from retaliation or talking about this kind of thing.

(Id. at Tr. 220-221.) Plaintiff further testified that he told Ms. Bonfili that he valued their professional relationship and appreciated the fact that she had supported him when he was depressed. (Id. at Tr. 223.) Plaintiff testified that Ms. Bonfili then gave him her express permission to touch her shoulder and he did, in fact, touch her shoulder. (Id. at Tr. 225-226.)

         Plaintiff testified that Dr. Mannix or Dr. Schlesinger came in and told him he was needed in another operating room. (Id. at Tr. 227.) Plaintiff indicated that he said “okay, I'll be there, just give me a couple minutes.” (Id.) At that point, however, Plaintiff claims Ms. Bonfili's demeanor changed and she looked “literally terrified.” (Id. at Tr. 228.) Plaintiff testified that he believed Ms. Bonfili became afraid that Dr. Mannix would report to Dr. Raphaely that Ms. Bonfili had been speaking to Plaintiff. (Id.) Plaintiff testified that Dr. Schlesinger then entered the room and said “see you in the OR” to Plaintiff, after which Plaintiff left the operating room. (Id. at Tr. 229.)

         On that same date, March 8, 2017, Ms. Costanzo received a call from Plaintiff “wanting to discuss his situation and wanting me to switch my on-call schedule so we would not have to work together.” (Costanzo Decl. at ¶ 6.) Ms. Costanzo reported the incident to Dr. Raphaely and to the VA police, in relevant part, as follows:

He said he understood but there are underlying feelings of resentment in our relationship coming from me that may not manifest obviously but that could affect the quality of patient care. I expressed to him that I have no personal feelings of resentment towards him but of course now working together may be slightly awkward knowing that he doesn't want to work with me. We then agreed to keep the schedule as it was and try to work on a better solution the next day. I called Dr. Raphaely immediately after the incident to report the contact. I felt Dr. Lisan was trying to intimidate me by telling me the responsibility fell on me to change the shift and by calling me on my personal phone after work hours when no one else could observe the interaction even though we passed in the hallway immediately before I left for the day. He had every opportunity to approach me then or even in the weeks prior to the shift as our call schedule comes out several weeks prior to the day of duty. His contact with me felt threatening and I have a real feeling that my work environment is unsafe at this time. For this reason I have requested not to have any contact with him both professionallv and personallv.

(Doc. No. 29-6 at PageID# 333.)

         On March 9, 2017, Ms. Foster emailed VA Medical Director Susan Fuehrer requesting that Plaintiff be placed on administrative leave because “it is unfair for us to have to work in an unhealthy, potentially unsafe work environment.” (Doc. No. 29-5 at PageID# 321.) Ms. Foster asserted that “[n]ot only is Dr. Lisan's behavior a distraction to patient care, but it has also made several of my colleagues extremely uncomfortable.” (Id.) The following day, Ms. Foster emailed Mr. Kafer, as follows:

I wanted to follow up with you from our meeting on Wednesday to tell you that I am concerned for my safety at work. I feel that little has been done to protect me from Dr. Lisan. I filed my sexual harassment complaint in January and since then, Dr. Lisan has and continues to make an effort to tell everyone that he is being accused of sexual harassment and that I am being used by management who want him out of the VA. Due to comments made to the group about the situation by other management, it is easily implied that I am one of the victims of his harassment. Despite requesting that Dr. Lisan have no contact with me, he has made an effort to say hello and hang around areas in the hospital that I am also present - like the CRNA office. This situation has made me very stressed, both mentally and physically, causing great anxiety, and has negatively impacted my life for over two months.

(Doc. No. 29-5 at PageID# 322.)

         In response to the above incidents, Dr. Raphaely reached out to HR for guidance. (Raphaely Decl. at ¶ 9a.) Human Resources assisted Dr. Raphaely in drafting a Letter of Warning, which was issued to Plaintiff on March 10, 2017. (Id.) This Letter provides, in relevant part, as follows:

1. I have learned of additional serious allegations that were made against you. I was advised that you may have engaged in additional conversations regarding allegations of inappropriate behavior ...

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