Bogart v. University of Kentucky
MEMORANDUM OPINION & ORDER: Defendant's Motion for Summary Judgment 35 is GRANTED. Signed by Judge Joseph M. Hood on 12/5/2017.(STC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
UNIVERSITY OF KENTUCKY,
Civil Case No.
MEMORANDUM OPINION & ORDER
This matter is before the Court upon Defendant’s Motion for
Summary Judgment [DE 35; see also DE 38]. Plaintiff has filed a
Summary Judgment, and Defendant has filed a Reply [DE 40] in
further support of their Motion. This motion is now ripe for
The facts before the Court are relatively straightforward.
In the 1980s, Plaintiff was diagnosed with Tourette Syndrome and
dystonia, a condition causing weakness and mild motor deficiency
in the hand that developed as a result of a reaction to a prior
medication for the treatment of Tourette’s. Pl. Dep. at 69-70.
His symptoms are well controlled and do not significantly affect
his ability to work. Pl. Dep. at 71-75. Plaintiff’s symptoms are
so well-managed that people often do not notice them. Pl. Dep.
One symptom, more than any other, remains even with
effective management of Tourette Syndrome with medication:
head shakes from left to right in a “no” motion, once every
minute or every few minutes.
Bogart Decl. at 5.
Neuroscience from Kent State University.
Pl. Dep. 20-21.
obtaining his doctorate degree, he worked as a post-doctoral
fellow in radiology at the Gruss Magnetic Imaging Center at the
Albert Einstein School of Medicine in the Bronx, a position that
he left when his contract was not renewed.
Pl. Dep. at 21-27.
Two years later, in December 2013, Plaintiff applied online for
a research position with Dr. Ai-Ling Lin, who was transitioning
her research from the University of Texas Health Service Center
at San Antonio, in Texas, to the University of Kentucky.
Dep. at 41-42.
Lin joined the University of Kentucky’s Sanders-
Brown Center on Aging in March 2014, and maintains a medical
research laboratory there.1 Lin Aff at ¶ 2.
Thus, after some
Dr. Lin’s professional interests and specialties include
neuroimaging, functional magnetic resonance imaging (fMRI),
positron emission tomography (PET), brain metabolism, cerebral
blood flow, brain aging, risks for Alzheimer’s disease, and
dietary effects on cognitive aging. Lin Aff. at ¶ 2.
joining the University, the main focus of Dr. Lin’s research was
in the effects of calorie restriction on mice brains as a device
initial remote discussions and correspondence, Lin and Plaintiff
met for an interview at the University of Kentucky in March
Pl. Dep at 48.
Lin described her areas of research and
topics with which she needed him to be familiar.
Pl. Dep. at
He told her that he would need to refresh his knowledge on
a few topics but possessed the skill and knowledge to perform
Pl. Dep. at 51-52, 55-56.
Plaintiff was eventually
hired as a Senior Laboratory Technician in the Sanders-Brown
Center for Aging at the University of Kentucky, where he was one
of the first employees in Lin’s new lab.
Pl. Dep. at 55.
Upon commencing work at the University in Lin’s lab in June
2014, Plaintiff was primarily tasked with conducting statistical
analysis of a set of research data purchased by Lin for a larger
brains of mice. Pl. Dep. at 56-57. Plaintiff believed the data
was flawed and that using the data in Lin’s research would be
improper. Pl. Dep. at 90-91. On one hand, Plaintiff claims that
he tried to express his concerns to Lin but she refused to hear
his concerns. Pl. Dep. at 64. However, he also admits that he
discussed these concerns with her several times over the course
to gain insights into Alzheimer’s disease in humans. Pl. Dep. at
understand her English and whether he had the experience to do
certain tasks. Pl. Dep. at 85-88; Aug. 1, 2014 Email Exchange
between A. Lin and A. Bogart, Ex. 3; Aug. 4, 2014 Email Exchange
between A. Lin and A. Bogart, Ex. 4.
Sometime on or just shortly before August 1, 2014, Lin
called Bogart to her office and asked him about the fact that he
regularly shook his head back and forth, asking him whether he
had Parkinson’s disease.
Bogart Decl. at ¶ 15.
that he did not but that he did have lesions on his brain.
According to Bogart, Lin then became angry and questioned why he
had not told her about the lesions on his brain during their
interview and asked him for his diagnosis, at which time Bogart
disclosed that he has Tourette Syndrome.
Perhaps for this reason, when Plaintiff wrote an email to
Lin on August 1, 2014, he explained that he “ha[s] a slower
learning curve than is usual for what you expect” but “all of a
sudden, I completely ‘get’ it.” [DE 35-5 at 234.]
that her “concern [wa]s not the speed of your learning curve,
but the skills and professionalism you should already have after
your Ph.D. training and so many years of experiences, e.g., the
statistical analysis ability, finding pattern of and the meaning
behind the data.
Again, the misplacing numbers/orders has been
considered a serious one.”
performance was not meeting expectations. Pl. Dep. 111-15, 127,
135, 139; Aug. 26, 2014 Oral Warning Notice, Ex. 5; Lin Aff at ¶
5. Specifically, Plaintiff interchanged headings and/or numbers
in lists of data on at least three occasions. Pl. Dep. at 12627; Ex. 4. These lists contained data comparing four different
groups of mice with different characteristics (such as “calorie
restricted” and “not calorie restricted”) to see what effect
calorie restriction had on the brains of mice. Lin Aff. ¶ 6.
discovered these mistakes and instructed Plaintiff to correct
them. Lin Aff. at ¶ 6.
Plaintiff admits these mistakes but
insists that they were minor and that Lin was overreacting in
indicated to Plaintiff that these mistakes were serious and must
be remedied. Pl. Dep. at 113; Ex. 3. Indeed, from a scientific
standpoint, these mistakes were quite serious because labeling
information and makes it meaningless. Lin Aff. at ¶ 6. According
to Lin, to analyze and interpret data that has been mislabeled
or changed could mislead the scientific community and constitute
research misconduct. Lin Aff. at ¶ 6.
There were other issues during Plaintiff’s time in Lin’s
He worked more than 40 hours a week without approval on
properly clocking in and out.
Pl. Dep. at 106-07; Ex. 5.
full-time non-exempt employee, Plaintiff was informed on several
occasions that he must not work more than 40 hours per week
unless approved by Lin, he may not do work without pay, and he
may not remain clocked in while attending appointments out of
office. Pl. Dep. at 106-07, 141; Ex. 5; June 26, 2014 Email
Exchange between A. Bogart, A. Lin, V. Bakshi, B. Baesler, and
M. Waechter, Ex. 6; Aug. 23, 2014 Email Exchange between A. Lin
and A. Bogart, Ex. 7. Plaintiff admits he made these mistakes
clocking in and out. Pl. Dep. at 141.
was found to have been sleeping in the lab, socially chatting
during work hours, and communicating with a sales representative
in a manner outside his job description. Ex. 5. Additionally,
Plaintiff was not timely completing the tasks assigned to him
these performance issues but asserts that they were either so
justified because of the flaws that he perceived were present in
the data he was tasked with analyzing. Pl. Dep. at 97-98; 15051.
Center Administrator II, and Mary Fern Waechter, Sanders-Brown
Center Administrator III, to address these performance issues on
August 26, 2014. Pl. Dep. at 140-41. Plaintiff was informed of
areas in which he needed to improve and it was expected that
they would meet again to follow up on his progress. Pl. Dep.
157-58; Ex. 5. This meeting was designated an Oral Warning and
meeting would be scheduled after September 2, 2014 to assess his
level of improvement toward satisfactory performance. Pl. Dep.
preventing him from completing the work in the way that Lin
meeting who said they “didn’t understand science.”
Between August 26 and September 4, 2014, Lin observed that
performance. Lin Aff. at ¶ 8. Furthermore, during this period,
Plaintiff ignored specific instructions Lin gave him and failed
either. Lin Aff. at ¶ 8. Additionally, Plaintiff was rude and
insubordinate toward Lin by ignoring her when she spoke to him
and speaking to her in a rude and derogatory manner. Lin Aff. at
¶ 8. Of course, Bogart claims that his behavior toward Lin was
never intended to be rude or insubordinate but that she became
angry and raised her voice at him if Bogart’s results did not
meet her expectations or if he made minor errors. Bogart Decl.
Ultimately, on September 4, 2014, Plaintiff was separated
from employment from the University. Pl. Dep. at 98. At the time
of termination, Plaintiff was still in his initial probationary
phase of employment. Pl. Dep. at 99. After his separation from
employment with the University, Plaintiff made a complaint with
discrimination (Tourette’s Disorder)”. Pl. Dep at 167; Sep. 5,
2014 Email Exchange between A. Bogart and P. Bender, Ex. 8.
Bender requested that Plaintiff provide to her any information
or documentation he had to support his complaint. Pl. Dep. at
170. Plaintiff eventually provided Bender a series of emails
complaints regarding his separation from employment and concerns
regarding the data he was tasked with analyzing. Ex. 8; Sep. 10,
2014, 3:05pm Email Exchange between A. Bogart and P. Bender, Ex.
9; Sep. 10, 2014, 8:28pm Email between A. Bogart and P. Bender,
Ex. 10; Sep. 12, 2014, 9:35pm Email Exchange between A. Bogart
and P. Bender, Ex. 11; Sep. 12, 2014, 10:26pm Email Exchange
between A. Bogart and P. Bender, Ex. 12; Sep. 14, 2014 Email
Exchange between A. Bogart and P. Bender, Ex. 13; Sep. 17, 2014
Email Exchange between A. Bogart and P. Bender, Ex. 14; Sep. 23,
2014 Email Exchange between A. Bogart and P. Bender, Ex. 15. An
investigation was conducted and Plaintiff’s discrimination claim
was found to be meritless. Pl. Dep. at 186-87; Oct. 17, 2014
Email Exchange between A. Bogart and P. Bender, Ex. 16; Oct. 17,
2014 Decision Letter from P. Bender to A. Bogart, Ex. 17.
Summary judgment is appropriate only “if the movant shows
that there is no genuine dispute as to any material fact.” Fed.
R. Civ. P. 56(a). “A genuine issue of material fact exists when
‘there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party.’ ” Laster v. City of
Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986)). The Court reviews all evidence and draws
all inferences in the light most favorable to the nonmoving
Cir.2012) (en banc); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
disagreement to require submission to a jury or whether it is so
Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505.
The Eleventh Amendment bars all suits by private litigants
in federal court against states and their agencies. See Alabama
v. Pugh, 438 U.S. 781, 781 (1978) (“[T]he Eleventh Amendment
parties against States and their agencies.”). The University of
entitled to sovereign immunity. See Jackson v. University of
School & Hosp. v. Halderman, 465 U.S. 89, 99 (1984), Congress
has not done so with respect to the specific type of Americans
immunity not abrogated by Title I of the ADA). Accordingly,
Plaintiff’s Amended Complaint for money damages based on the ADA
is barred by sovereign immunity and must be dismissed for lack
of jurisdiction. See Huffer v. University of Kentucky, 5:11-cv417-KSF, 2013 WL 431823 at *3 (E.D. Ky. 2013).
Kentucky Civil Rights Act with respect to a plaintiff’s claim of
disability discrimination under KRS 344.040 by borrowing from
Hallahan v. The Courier-Journal, 138
S.W.3d 699, 706 (Ky Ct. App. 2004); Howard Baer, Inc. v. Schave,
127 S.W.3d 589 (Ky. 2003).
Thus, to succeed on such a claim, “a
disability; 2) he is ‘otherwise qualified’ to perform the job
requirements, with or without reasonable accommodation; and 3)
he was discharged solely by reason of his handicap.” Jakubowski
v. Christ Hosp. Inc., 627 F.3d 195, 201 (6th Cir. 2010) (quoting
Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir.
accommodation that will permit him to effectively perform the
2 The Court exercises its discretion to maintain jurisdiction of this state
law claim after dismissal of all federal claims, considering the interests of
judicial economy balanced against the avoidance of needlessly deciding state
law claims. Harper v. AutoAlliance International, Inc., 392 F.3d 195, 211-12
(6th Cir. 2004).
This case is ready for trial after the resolution of the
present motion, and the trial date is only a few weeks away.
formulation of the test, the Sixth Circuit has recognized that
action, although the plaintiff must establish that her employer
causation.” Bracey v. Michigan Bell Tel. Co., No. 14-12155, 2015
WL 9434496, at *9 (E.D. Mich. Dec. 24, 2015) (quoting Lewis v.
Humboldt Acquisition Corp., 681 F.3d 312, 318 (6th Cir. 2012)).
Even assuming a plaintiff can make out a prima facie case
reasonably find that the defendant’s asserted reasons for the
Lebanon Correctional Inst., 181 F.3d 723, 730 (6th Cir. 1999).
“A plaintiff must do more than simply impugn the legitimacy of
the asserted justification for [his] termination; in addition,
the plaintiff ‘must produce sufficient evidence from which the
(quoting Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078,
1083 (6th Cir. 1994)).
On the undisputed facts before the Court, Plaintiff’s claim
fails as a matter of law for a jury could not reasonably find
Further, he has not produced evidence from which a
employment: unsatisfactory performance.
disposition against his condition with Tourette Syndrome must
have been the only reason that his employment was terminated
because any dissatisfaction over his performance for Defendant’s
stated reasons has been blown out of proportion.
He does not
argue that Lin was not dissatisfied with his performance only
Plaintiff feels about Lin’s opinion of his performance, it does
not change the fact that, on at least three separate occasions,
Plaintiff mislabeled and swapped data entries on a particular
corrected and should not be repeated, which was unacceptable to
her. Pl. Dep. 113; Ex. 5., Pl. Dep. 114; Ex. 3; Ex. 4; Aug. 5,
2014 Email Exchange between A. Lin and A. Bogart, Ex. 20. Nor
does it change the fact that Plaintiff had to be cautioned not
to work without pay, not to work more than forty hours per week,
and to make sure that he “punched in and out” prior to beginning
work and when leaving the office. Pl. Dep. 106; Ex. 7. Nor does
it change the fact that Plaintiff was informed that his progress
on his “main initial project” was slower than expected, Ex. 5;
Pl. Dep. 150-51, and that, having been so advised, he had made
no significant progress more than a week later. Ex. 5; Pl. Dep.
150-51. Neither does it change the fact that Plaintiff was found
communicating with sales representatives in a manner outside his
job description. Ex. 5. These infractions were communicated to
Plaintiff in person, via email, and in writing in the form of an
Oral Warning notice on August 26, 2014. Ex. 5. Plaintiff was
instructed on steps to improve his performance and a follow up
meeting was scheduled for the first week of September to assess
his progress. Ex. 5. However, Plaintiff failed to make such
improvements and exhibited further insubordinate behavior and
manner. Lin Aff. at ¶ 8. In other words, the Court does not
Plaintiff would not have been fired “but for” his disability.
Summary judgment would be appropriate on this ground alone.
That said, the Court also rejects Plaintiff’s argument that
termination of his employment were merely pretext for disability
discrimination by his supervisor because Lin had asked him about
his neurological condition and expressed – in his words – anger
that he had not disclosed it during his interview.
that a reasonable jury could determine that the reasons were
pretextual because his performance issues should not have been
employment by Lin and, further, because he was informed that his
condition and, then, his employment was terminated within six
days of that warning.
Again, the Court is unpersuaded.
The mere fact that the
enough, even when coupled with Plaintiff’s conclusory efforts to
downplay the seriousness of his errors and other performance
issues. In fact, when Plaintiff wrote to Lin on August 1, 2014,
explaining that he “ha[s] a slower learning curve than is usual
for what you expect” but “all of a sudden, I completely ‘get’
it,” she responded that her “concern [wa]s not the speed of your
learning curve, but the skills and professionalism you should
already have after your Ph.D. training and so many years of
misplacing numbers/orders has been considered a serious one.”
[DE 35-5 at 234.]
Even though she acknowledged his medical
Plaintiff’s work and his general performance on the job – the
stated reason for the termination of his employment.
judgment without more.
The Court finds there are no genuine issues of material
fact in dispute and that, on the evidence available, Defendant
is entitled to summary judgment on all remaining claims.
Summary Judgment [DE 35] is GRANTED.
This the 5th day of December, 2017.
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