Bogart v. University of Kentucky

Filing 43

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
ADAM BOGART,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
UNIVERSITY OF KENTUCKY,
Defendant.

Civil Case No.
16-cv-00255-JMH

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
Response

[DE

38],

stating

his

opposition

to

the

Motion

for

Summary Judgment, and Defendant has filed a Reply [DE 40] in
further support of their Motion. This motion is now ripe for
consideration

and,

for

the

reasons

stated

below,

will

be

granted.
I.

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.
at 71-72.

One symptom, more than any other, remains even with

effective management of Tourette Syndrome with medication:

his

head shakes from left to right in a “no” motion, once every
minute or every few minutes.
Among

other

degrees,

Bogart Decl. at 5.
Plaintiff

has

Neuroscience from Kent State University.

a

Ph.D.

in

Behavior

Pl. Dep. 20-21.

After

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.

Pl.

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.

1

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.
Upon
joining the University, the main focus of Dr. Lin’s research was
in the effects of calorie restriction on mice brains as a device
2

initial remote discussions and correspondence, Lin and Plaintiff
met for an interview at the University of Kentucky in March
2014.

Pl. Dep at 48.

prospective

projects

Lin described her areas of research and
to

Plaintiff

and

indicated

topics with which she needed him to be familiar.
51.

scientific
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
the job.

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
project

studying

the

effects

of

calorie

restriction

on

the

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
of

his

employment.

Pl.

Dep.

at

65-68.

Plaintiff

further

to gain insights into Alzheimer’s disease in humans. Pl. Dep. at
56-57.
3

testified

that

evidenced

by

Lin

Lin

was

asking

rude

and

hostile

towards

him,

as

Plaintiff

whether

he

able

to

was

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.

He explained

that he did not but that he did have lesions on his brain.

Id.

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.]

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 experiences, e.g., the
statistical analysis ability, finding pattern of and the meaning

4

behind the data.

Again, the misplacing numbers/orders has been

considered a serious one.”

Plaintiff

was

Id.

informed

by

Lin

numerous

times

that

his

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.
Plaintiff

mislabeled

lists

least

at

the

three

data

and/or

separate

swapped

times.

Lin

numbers

Aff.

At

¶

in

the

6.

Lin

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
reprimanding

him.

Pl.

Dep.

at

112-13.

However,

Lin

clearly

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
one

set

changing

of

data

as

if

it

relates

numbers

in

a

data

set

to

a

different

completely

group

invalidates

or
the

information and makes it meaningless. Lin Aff. at ¶ 6. According

5

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
lab.

He worked more than 40 hours a week without approval on

several

occasions

and

attended

properly clocking in and out.

medical

appointments

without

Pl. Dep. at 106-07; Ex. 5.

As a

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.

Additionally, Plaintiff

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
even

after

extensions

were

granted.

Id.

Plaintiff

admits

to

these performance issues but asserts that they were either so
minor

as

recall,

to
or

be
that

unimportant,
his

things

problems
6

with

that

he

could

completing

not

even

tasks

were

justified because of the flaws that he perceived were present in
the data he was tasked with analyzing. Pl. Dep. at 97-98; 15051.
Plaintiff

met

with

Lin,

Beverley

Baesler,

Sanders-Brown

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
Plaintiff
covered.

was
Ex.

given
5.

a

letter

Plaintiff

was

summarizing
instructed

the

that

information
a

follow

up

meeting would be scheduled after September 2, 2014 to assess his
level of improvement toward satisfactory performance. Pl. Dep.
at

158.

At

problems

that

that
he

meeting,

had

found

Bogart
with

attempted

the

data

to

and

explain
why

that

the
was

preventing him from completing the work in the way that Lin
expected,

but

he

was

cut

off

by

the

administrators

meeting who said they “didn’t understand science.”

in

the

Bogart Decl.

at 22.
Between August 26 and September 4, 2014, Lin observed that
Plaintiff

showed

no

improvement

towards

satisfactory

performance. Lin Aff. at ¶ 8. Furthermore, during this period,
Plaintiff ignored specific instructions Lin gave him and failed
7

to

complete

tasks

he

was

assigned

with

no

explanation

for

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.
at 20.
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
the

University’s

Opportunity

Office

(“OIEEO”)

of

Institutional

claiming

“wrongful

Equity

and

termination

Equal
due

to

discrimination (Tourette’s Disorder)”. Pl. Dep at 167; Sep. 5,
2014 Email Exchange between A. Bogart and P. Bender, Ex. 8.
Patty

Bender,

responded

to

Assistant
Plaintiff’s

Vice

President

complaint.

Pl.

for
Dep

Equal
at

Opportunity
167;

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
culminating

in

a

97

page

“report”
8

detailing

Plaintiff’s

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.

This

lawsuit followed.

II.
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
9

L.Ed.2d 202 (1986)). The Court reviews all evidence and draws
all inferences in the light most favorable to the nonmoving
party.

Chapman

v.

UAW

Local

1005,

670

F.3d

677,

680

(6th

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).
The

question

is

whether

“the

evidence

presents

a

sufficient

disagreement to require submission to a jury or whether it is so
one-sided

that

one

party

must

prevail

as

a

matter

of

law.”

Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505.
III.
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
prohibits

federal

courts

from

entertaining

suits

by

private

parties against States and their agencies.”). The University of
Kentucky

is

an

agency

of

the

Commonwealth

of

Kentucky

and

entitled to sovereign immunity. See Jackson v. University of
Kentucky,
immunity

2016
may

WL

be

3951084

abrogated

(E.D.
by

Ky.

2016).

Congress,

see

While

sovereign

Pennhurst

State

School & Hosp. v. Halderman, 465 U.S. 89, 99 (1984), Congress
has not done so with respect to the specific type of Americans
with

Disabilities

matter.
Garrett,

See
531

Board
U.S.

Act
of

claim

asserted

Trustees

356,

374

of

(2001)
10

by

Plaintiff

University

of

(finding

state

in

this

Alabama

v.

sovereign

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).
IV.
Turning

to

Plaintiff’s

KCRA

claim,

courts

interpret

the

Kentucky Civil Rights Act with respect to a plaintiff’s claim of
disability discrimination under KRS 344.040 by borrowing from
federal law.2

See e.g.,

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).
plaintiff

must

show

Thus, to succeed on such a claim, “a

that:

1)

he

is

an

individual

with

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.
1996)).

The

employee

has

the

burden

of

proposing

an

accommodation that will permit him to effectively perform the
essential

functions

of

his

job.

Id.

at

202.

“Since

this

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.

11

formulation of the test, the Sixth Circuit has recognized that
the

disability

need

not

be

the

sole

reason

for

the

adverse

action, although the plaintiff must establish that her employer
acted

‘because

of’

her

disability,

that

is,

‘but

for’

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
of

discrimination,

he

must

present

evidence

for

a

jury

to

reasonably find that the defendant’s asserted reasons for the
termination

of

his

employment

were

pretextual.

Warfield

v.

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
jury

may

reasonably

reject

the

employer’s

explanation.’”

Id.

(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
that

Plaintiff

disability.
jury

might

would

not

have

been

fired

“but

for”

his

Further, he has not produced evidence from which a
reasonably

reject

12

the

employer’s

legitimate,

nondiscriminatory

explanation

for

the

termination

of

his

and

her

employment: unsatisfactory performance.
Plaintiff

insists

that

Lin’s

knowledge

of

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
that

she

should

not

have

been,

in

his

opinion.

Whatever

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
assignment

even

after

Lin

indicated

these

mistakes

must

be

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.
13

150-51. Neither does it change the fact that Plaintiff was found
sleeping

at

work,

chatting

socially

during

work

hours,

and

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
unsatisfactory
instructions;

performance,
failing

explanation;

and

including

to

speaking

ignoring

complete

to

Lin

in

Lin’s

assignments
a

rude

and

explicit
without

derogatory

manner. Lin Aff. at ¶ 8. In other words, the Court does not
believe

that

Plaintiff’s

there

argument

is

sufficient

for

a

evidence

reasonable

jury

in
to

support

conclude

of
that

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
there

is

a

genuine

discriminatory,

dispute

of

fact

performance-based

as

to

reasons

whether

the

non-

given

for

the

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
14

that he had not disclosed it during his interview.

He argues

that a reasonable jury could determine that the reasons were
pretextual because his performance issues should not have been
considered

important

enough

to

merit

his

dismissal

from

employment by Lin and, further, because he was informed that his
employment
improve

might

less

be

than

terminated

one

month

if

his

after

performance

their

exchange

did

not

about

his

condition and, then, his employment was terminated within six
days of that warning.
Again, the Court is unpersuaded.
parties

had

discussed

Plaintiff’s

The mere fact that the

medical

condition

is

not

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
experiences,
pattern

of

e.g.,
and

the

the

statistical

meaning

behind

analysis
the

ability,

data.

finding

Again,

the

misplacing numbers/orders has been considered a serious one.”
[DE 35-5 at 234.]
condition,

Lin

Even though she acknowledged his medical

repeatedly

cited
15

her

concerns

with

errors

in

Plaintiff’s work and his general performance on the job – the
stated reason for the termination of his employment.
does
about

not

deny

the

performance

these

relative
issues

facts.

Plaintiff’s

seriousness

are

simply

of

not

his

enough

Plaintiff

conclusory
errors
to

argument

and

survive

other
summary

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.
Accordingly,

IT

IS

ORDERED

that

Summary Judgment [DE 35] is GRANTED.
This the 5th day of December, 2017.

16

Defendant’s

Motion

for