Diakow v. Oakwood Healthcare, Inc.

Filing 41

OPINION and ORDER Denying Plaintiff's 26 Motion for Summary Judgment and Granting in Part and Denying in Part Defendant's 28 Motion for Summary Judgment. Signed by District Judge Nancy G. Edmunds. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LILIAN DIAKOW,
Case No. 15-11411
Plaintiff,
Honorable Nancy G. Edmunds
v.
OAKWOOD HEALTHCARE, INC., d/b/a
OAKWOOD SOUTHSHORE MEDICAL
CENTER,
Defendant.
/

OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT [26] AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT [28]

This employment dispute comes before the Court on cross motions for summary
judgment. Plaintiff's claims arise from Defendant's failure to renew her on-call physician
contract. Plaintiff brings claims pursuant to the Americans with Disabilities Act (ADA), 42
U.S.C. § 12117, which incorporates and references § 706 of Title VII, 42 U.S.C. § 2000e-5
(Count I), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et
seq., age discrimination (Count II). (Compl. ¶ 1.) The Court held a hearing on these
motions. For the reasons stated below, Plaintiff's motion for summary judgment (dkt. 26)
is denied and Defendant's motion for summary judgment (dkt. 28) is denied in part and
granted in part.
I.

Background
A. Plaintiff's Employment History

Plaintiff, Lilian Diakow, M.D. ("Plaintiff" or "Dr. Diakow"), graduated from medical
school in 1952. (Diakow Dep. 16, Pl.'s Mot. Summ. J. Ex. 1, dkt. 26-1.) She took a
residency in obstetrics and gynecology (OB/GYN) at Providence Hospital between 1953
and 1956. (Diakow Dep. 16.) Until June 2014, she had a private medical practice in
Wyandotte, Michigan, and through the years she had hospital privileges at both Henry Ford
Wyandotte (HFW) and Seaway Hospital in Trenton, which later became Oakwood
Southshore ("Defendant" or "Southshore"). (Diakow Dep. 17-19, 21.)
In addition to private practice, hospital privileges, and a contract to perform faculty
preceptor duties 3 half-days per week, Plaintiff had on-call contracts at Southshore.1
(Diakow Dep. 31:5-16, 33-35.) This additional coverage of Southshore's OB/GYN
department was pursuant to a separate written contract. (Diakow Dep. 30:17-20.) These
two-year contracts provided an hourly wage for nighttime on-call emergency coverage.
(Diakow Dep. 72:11-22.) Plaintiff's most recent on-call contract was executed in December
2008, when she was 80 years old, and amendments to extend its terms were signed
through June 2011, when she was 83, and through June 2013, at age 85. (Diakow Dep.
72-74; Physician Employment Agr. Ex. A, Def.'s Mot. Summ. J. Ex. 5, dkt. 28-5.) It is also
worth noting that on July 16, 2009, at the age of 81, Plaintiff was appointed Secretary of
the OB/GYN department for a 4-year term. (Diakow Dep. 91:17-25.) She was reappointed
in May 2013, at age 85, for three more years. (Diakow Dep. 91:17-25.) Both letters of

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Dr. Diakow started the "doctor-in-the-box" or "doctor on duty in the OB department"
program at Wyandotte General (now HFW), and she later started the same program at
Southshore. (Diakow Dep. 21:18-19, 25:7-11.) Under the doctor-in-the-box ("on call")
program, the doctors covered night shifts with members from their department who were
also referred to as the on-call physician. (Diakow Dep. 30:8-23.)
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appointment were signed by Edith Hughes, President of Oakwood Southshore Medical
Center, and Dr. Nasir. (Diakow Dep. 91.)
Plaintiff's physician employment agreement with Oakwood Southshore Medical center,
dated January 1, 2009, contains a job description at Exhibit B with a list of job duties.
(Employment Agr. Ex. B, 135-36, Pl.'s Mot. Summ. J. Ex. 2, dkt. 26-2.) There were certain
medical procedures which Plaintiff decided that she was not going to do. (Diakow Dep. 51.)
Plaintiff testified that the only procedure she did not perform was laparoscopy, and she
alleges that the other procedures which she had crossed off the list of hospital privileges
were procedures that noone at her hospital performed as far as she knew, and that some
of these procedures were performed at high-risk hospitals. (Diakow Dep. 54-55.) The job
description also included "teaching residents and medical students." (Employment Agr. Ex.
B, 135-36, Pl.'s Mot. Summ. J. Ex. 2, dkt. 26-2.)
When Plaintiff was working in the on-call role at Southshore, there would be one
physician staffing the OB department on each particular night or weekend shift and usually
one resident. (Diakow Dep. 51:19-52:16.) During the on-call schedule, the only exception
to having a resident scheduled on OB/GYN duty was the third Thursday of each month on
the day shift, during which time the residents had their monthly didactic meeting with the
state-wide campus system. (Seibles Dep. 26, Pl.'s Mot. Summ. J. Ex. 3, dkt. 26-3.)
Defendant ended Dr. Diakow's on-call services on October 29, 2013, by failing to
renew her contract; Dr. Diakow alleges that she was terminated. (Diakow Dep. 45-47.) After
Plaintiff's on-call services contract ended, she maintained staff privileges. (Diakow Dep.
37:7-17.) Plaintiff also continued her employment as an on-call physician at HFW even after

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her employment with Defendant ended. (Diakow Dep. 22.) Plaintiff completely retired from
the practice of medicine on September 1, 2015.
B. Facts Related To Plaintiff's Position At Defendant Southshore
On November 15, 2012, Plaintiff injured her calf muscle when getting out of her car
on a windy night at HFW. When she turned around to retrieve her tote bag from the car, the
wind snapped the car door back into her leg. (Diakow Dep. 95.) Despite being in pain, she
carried out her duties that evening and had x-rays taken at Southshore the following
morning. (Diakow Dep. 95.) On November 28, 2012, Plaintiff followed up with her
orthopaedic doctor, Dr. Kevin Sprague. (Sprague records 11/28/12, Pl.'s Mot. Summ. J. 7,
dkt. 26-7.) Dr. Sprague recommended physical therapy, which Plaintiff attended a few
times, but the appointments conflicted with her schedule and the therapist said she could
continue the exercises at home. (Diakow Dep. 102.) For a couple of months following the
injury, Plaintiff occasionally used a wheelchair to cover longer distances, for example from
the OB department to the clinic or to her office. (Diakow Dep. 97-98.)
On December 10, 2012, Hughes was forwarded an email from Martha Williams,
Clinical Nurse Manager of the Birthing Unit, which read:
It has become a concern of the OB staff that Dr. Diakow may not be physically
able to perform her duties as it relates to being the in house OB Physician.
She has been observed using a wheelchair to navigate through the unit,
including into patient rooms. The concern rests with whether she can perform
a crash C/Section or Vaginal Delivery without the assistance of another
physician. Please note, once a month she is working without even Resident
coverage.
After discussion (today) with Dr. Glines, yourself and Juliet Hafford I am
advised to forward my concern back to you for further review and followup.

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(Williams Email, Dec. 10, 2012, Def.'s Mot. Summ. J. Ex. 6, 28-6.) As discussed below,
Nurse Williams agreed in her testimony that after Plaintiff's accident, there was at least one
occasion where she thought it took a long time for Plaintiff to walk from the sleep room to
surgery. (Williams Dep. 20:21-25, Def.'s Mot. Summ. J. Ex. 7, dkt. 28-7.) Williams also
testified that Plaintiff's "inability to stand through a surgery leaving the surgery to the
residents was a concern," and that Williams had "observed on more than one occasion
[Plaintiff] stepping back and sitting down during surgery." (Williams Dep. 22-23.) Williams
further testified that she had seen Plaintiff stopping on her way to the delivery room in an
emergency situation and that Williams' perception was that "it appeared that she was
stopping to rest." (Williams Dep. 35.)
On April 11, 2013, Plaintiff attended a meeting with Hughes and Craig Glines, D.O.,
at which time her injury was a topic of conversation. (Diakow Dep. 99; Glines Dep. 10,
Def.'s Mot. Summ. J. Ex. 3, dkt. 28-3.) Plaintiff testified that at the meeting, Hughes
informed her that "she had heard that I had to be wheelchaired from patients' rooms," which
Plaintiff denied, and that Plaintiff's limping around was not a good image for the hospital.
(Diakow Dep. 100.) Hughes also gave Plaintiff a list of physicians to contact to be
reevaluated at Oakwood. (Diakow Dep. 100.) Plaintiff informed Hughes that she had been
treated by Dr. Sprague, also at Oakwood, yet she was not asked to bring in a note from Dr.
Sprague regarding whether she was fit to perform the job. (Diakow Dep. 100-01.) Hughes
admits she did not give Plaintiff a written letter requesting that Plaintiff provide a physical
medicine and rehabilitation (PMR) physician's report to her. (Hughes Dep. 17:18-20, Def.'s
Mot. Summ. J. Ex. 8, dkt. 28-8.)

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Plaintiff attended an appointment with one of the doctors on Hughes' list, Dr. Sham
Juratli, who notified Plaintiff that she had a tissue injury and should continue with therapy.
(Diakow Dep. 102.) Plaintiff did not get a return-to-work slip or other documentation
regarding her ability to work and testified that Hughes had not requested one, or Plaintiff
certainly would have gotten one. (Diakow Dep. 103.) Hughes testified that she and Plaintiff
met again in May 2013 and Plaintiff admitted she had seen a PMR physician, yet she did
not produce any documentation. (Hughes Dep. 22:1-6.)
Dr. Glines testified that as to Plaintiff's work between December 2012 and October
2013, it was his own observation "of her ambulating around" and the "increasing concerns
of the nursing staff" who were "starting to ramp up their complaints," that called into
question Plaintiff's physical ability to do the job. (Glines Dep. 81:5-13.) He testified that his
"observation was she had a hard time ambulating down the hallway without stopping to
rest." (Glines Dep. 82:5-11). If he walked down the hallway with her, they would "be
stopping about every 20 feet . . . ." (Glines Dep. 82:5-11.)
Dr. Glines further testified that on or about April 18, 2013, when he was in Lansing at
an educational forum with the residents, he responded to a call from the ER resident, Dr.
Kelley, about a patient who came into the ER and was bleeding a lot. (Glines Dep. 119:17120:18.) According to Dr. Glines, Dr. Kelley indicated that "he had contacted Dr. Diakow
[the in-house on-call physician that day] and told her that he had a ruptured ectopic and
that -- and her response was, well, I don't do that kind of procedure, surgery, or whatever
the exact word was and that she didn't come down. So he did not know what to do since
she was the only gynecologist there and there were no residents." (Glines Dep. 120:17-25.)
Dr. Glines advised Dr. Kelley to call Dr. Seibles "[t]o get in there and see that patient and
6

have her get Dr. Diakow and go down . . . , take care of this," and that was Dr. Glines'
"understanding" of what had happened. (Glines Dep. 122:17-22.)
Dr. Glines recommended to Hughes that Plaintiff's on-call services contract not be
renewed. (Glines 18:25-19:3.) Hughes testified that she was the decision-maker who
decided not to renew Plaintiff's contract in 2013, and that she had consulted with Dr.
Glines, though he was not the final decision-maker. (Hughes Dep. 7:1-9, Plaintiff's Mot.
Summ. J. Ex. 8, dkt. 26-8.) She did not consult with anybody in personnel at Oakwood
main hospital nor did she consult with the human resources department at Southshore in
deciding not to renew Plaintiff's on-call contract. (Hughes Dep. 7:10-16.)
Plaintiff points out that it is undisputed that there was no complaint, patient injury or
medical malpractice claim or disciplinary charge brought against her. (Pl.'s Mot. Summ. J.
5.) Plaintiff also argues that it is undisputed that she never requested an accommodation
from Defendant. (Pl.'s Mot. Summ. J. 6.) Additional facts supported by the record and
relevant to the analysis herein are included below.
Plaintiff brings her motion for summary judgment alleging that Defendant is unable to
raise an issue of disputed fact on the perception of impairment (Pl.'s Mot. Summ. J. 16);
Defendant has no objective evidence (legitimate basis) to require a medical examination,
and such a demand may not be made in the absence of being job related and consistent
with a real business necessity; Defendant does not have any evidence to support a case
of direct threat to the safety and welfare of others; and Defendant has not provided
evidence from which a jury could draw a reasonable conclusion that Dr. Diakow was
impaired in her essential job functions or was a direct threat. (Pl.'s Mot. Summ. J. 31.)
Defendant brings its motion for summary judgment arguing that Plaintiff cannot establish
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a claim of disability discrimination pursuant to the ADA because her alleged impairment
prevented her from performing essential functions of her job, that Defendant's request to
have Plaintiff examined by a physiatrist was job-related and consistent with business
necessity and did not violate the Americans with Disabilities Act ("ADA"), Defendant's
failure to renew Plaintiff's on-call services contract did not violate the ADA, and finally, that
Plaintiff cannot establish a claim of age discrimination.
II.

Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A moving party may meet that burden “by ‘showing’ – that is, pointing
out to the district court -- that there is an absence of evidence to support the nonmoving
party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rule 56 expressly
provides that:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of
a genuine dispute, or that an adverse party cannot produce admissible evidence
to support the fact.
Fed. R. Civ. P. 56(c)(1). Rule 56 also provides that
If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
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(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials – including
the facts considered undisputed – show that the movant is entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3).
When the moving party has met its burden under rule 56, “its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately a
district court must determine whether the record as a whole presents a genuine issue of
material fact, id. at 587, drawing “all justifiable inferences in the light most favorable to the
non-moving party.” Hager v. Pike Cnty. Bd. Of Educ., 286 F.3d 366, 370 (6th Cir. 2002).
III.

Analysis
A. Whether Plaintiff Can Establish A Claim Of Disability Discrimination
"To recover on a claim for discrimination under the ADA, a plaintiff must show that he

or she (1) is disabled, (2) otherwise qualified to perform the essential functions of the
position, with or without accommodation, and (3) suffered an adverse employment action
because of his or her disability." Ferrari v. Ford Motor Co., 826 F.3d 885, 891 (6th Cir.
2016) (citing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996)). "Under
the ADA, the term 'disability' means a physical or mental impairment that substantially limits
one or more major life activities of an individual; a record of such an impairment; or being
regarded as having such an impairment." Id. at 892 (citing 42 U.S.C. § 12102(1)).

9

Plaintiff does not allege that she is disabled, but rather that she was regarded as
disabled and that for this reason, her contract was not renewed. (Pl.'s Mot. Summ. J. 18;
dkt. 26.) "Individuals may be regarded as disabled when (1) [an employer] mistakenly
believes that [an employee] has a physical impairment that substantially limits one or more
major life activities, or (2) [an employer] mistakenly believes that an actual, nonlimiting
impairment substantially limits one or more [of an employee's] major life activities." Id. at
893 (quoting Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008)). "Major
life activities include, but are not limited to, . . . walking, standing, . . ., and working." Id. at
893. "[A]n individual may fall into the definition of one regarded as having a disability if an
employer ascribes to that individual an inability to perform the functions of a job because
of a medical condition when, in fact, the individual is perfectly able to meet the job's duties."
Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1106 (6th Cir. 2008)(citation
omitted).
While Plaintiff argues that she is entitled to summary judgment because Defendant
"regarded" her as disabled, Defendant argues that "Plaintiff cannot show that she could
perform the essential functions of a nighttime, on-call OB physician," and therefore her
claim must fail. (Def.'s Mot. Summ. J. 16, dkt. 28); see also Jennings v. Dow Corning Corp.,
2013 WL 1962333, at *9 (E.D. Mich. May 10, 2013) ("To succeed on his claim, Plaintiff
must also show that [s]he is 'otherwise qualified' for the . . . position.").
1. Essential Functions of the Job
It is undisputed that Defendant concluded that Plaintiff could not perform the essential
functions of the on-call physician position and failed to renew/terminated her on-call
services contract after it expired in June 2013. (Def.'s Mot. Summ. J. 2.) . Defendant "does
10

not dispute that [Plaintiff] could perform many aspects of [her] job" and limits the issue to
"her ability to timely respond to emergency situations and handle them completely on her
own when she was the only licensed OB physician in the hospital during on-call coverage."
(Def.'s Mot. Summ. J. 16, dkt. 28.)
An individual is "otherwise qualified" if she "can perform the 'essential functions' of the
job in question." Estate of Mauro v. Borgess Med. Ctr., 137 F.3d 398, 402 (6th Cir. 1998)
(citation omitted). Normally the inquiry involves whether the individual can perform the
essential functions "with or without reasonable accommodation," however when a plaintiff
is "regarded as" being disabled, "the employer is not required to entertain or consider
reasonable accommodations." Jennings, 2013 WL 1962333, at *9 (citing 42 U.S.C. §
12201(h); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999)).
The parties agree that the employment agreement job description includes
"performing vaginal and cesarean deliveries for clinic patients, Dr. (sic) No patients and
private patients (attending physician is not present)." (Job Description -- In House OB/GYN
Physician, Def.'s Mot. Summ. J. Ex. 5, dkt 28-5; Pl.'s Resp. 3; dkt. 32.) Plaintiff in her
deposition agreed that it was "important for an on-call or supervising doctor" to be able to
"safely deliver babies" and "perform C-sections and other surgical procedures." (Diakow
Dep. 110:10-17, Def.'s Mot. Summ. J. Ex. 1, dkt. 28-1.) She further agreed that it was
important for the on-call doctor to be able to "get to any emergency situation quickly," and
"be able to stand and perform all of the surgical procedures that the residents are
performing in case there's a problem." (Diakow Dep. 110:18-111:2.)
Defendant points out that the job description requires that the "physician will be
involved in the evaluation and treatment of all complex patients in triage until they are
11

stabilized for transfer, admitted or their physician is in house." (Job Description -- In House
OB/GYN Physician, Physician Employment Agr., Ex. B, 135, Def.'s Mot. Summ. J. Ex. 5.)
Plaintiff admits that she stopped doing some surgeries (prior to her injury), yet argues that
the job description does not require performing "major surgeries", and that the job "calls
simply for supervision of the labor and delivery area, nurses, residents, training of the same
and vaginal and caesarian section deliveries." (Pl.'s Br. in Opposition 3.)
Defendant shows that Plaintiff testified, "I cut out doing surgery when Dr. Danz
became ill. I only did sections. I did not do any majors after that." (Diakow Dep. 122:18-20.)
Plaintiff also testified that there were certain procedures, such as laproscopies, that Plaintiff
did not perform, because she "saw the complications that happened with laproscopies, so
[she] chose not to expose [herself]" and if a laproscopy needed to be done while she was
on call, she had two other doctors available as a backup. (Williams Dep. 41-43.) Defendant
argues that this testimony, as well as evidence from Nurse Martha Williams that the nurses
had to wait "an uncomfortable amount of time" for Plaintiff to respond in a "crash" situation,
"is sufficient in itself to establish that Plaintiff was not otherwise qualified to perform all
aspects of the OB on-call position" and therefore, her claim must fail.2 (Def.'s Mot. Summ.

2

It is worth noting Williams' testimony in more detail because it is not exactly as
Defendant had characterized it in the brief by stating that "Williams, herself, had
experienced multiple situations where a fetus' heart tone had dropped, creating a "crash"
situation, promoting the nurse to yell for the doctor, and having to wait 'an uncomfortable
amount of time' for Plaintiff to arrive". (Def.'s Mot. Summ. J. 7, citing Williams' Dep. pp. 2122 and 34.) Williams' testimony was as follows:
Q: What was the emergent situation? What was going on?
A: These situations, and I don't want to speak to a particular situation, but these situations
in general are situations where you have a labor patient, the baby's heart tone has
dropped, it's a crash situation. The nurse opens the door and says I need the Doc in the
Box, I need the Doc in the Box now. The person at the nurse's station and myself pick up
12

the phone, Dr. Diakow, we need you now and then you wait for her to arrive or whoever the
Doc in the Box would be.
Q. And did she arrive?
A. Yes.
Q. Was there any harm to that particular patient?
A. I am not aware of the length of time it took her to get there resulting in harm to a patient.
Q. Were you personally present waiting for her to arrive?
A. I have been personally present waiting for her to arrive.
Q. And then she arrived, and as far as you know the appropriate decision and the
appropriate thing was done with respect to the patient?
A. Yes.
Q. Anything like that other than that (sic) that you recall that was alarming to you?
A. The inability to stand throughout a surgery leaving the surgery to the residents was a
concern.
Q. Well, tell me about what surgery you observed after her accident presumably on a day
shift where –
A. More often on a day shift but it was not always.
Q. – where you observed that she was unable to stand during a surgery?
A. What’s the question exactly?
Q. Let me ask it a different way.
A. Okay.
Q. Is it your testimony that you observed on at least one occasion, maybe more, than (sic)
you personally observed that Dr. Diakow became physically distressed, tired, or was unable
to stand during a surgery when she was needed during a surgery?
A. I’ve observed on more than one occasion her stepping back and sitting down during a
surgery.
Q. What’s wrong with that?
A. It’s hard to imagine that you can supervise a surgery if you’re sitting away from the
surgical arena.
Q. It’s hard for you to imagine because you’re not a surgeon; right?
A. I’m not a surgeon. But –
...
A. It was a concern.
Q. It was a concern to you?
A. A concern, yes.
Q. Any harm to the patient?
A. I’m not aware of any harm to any patient.
(Williams Dep. 21:10-23:15.)
On page 34 of the deposition, again cited by Defendant, Williams testified:
Q. Well, why don’t you explain again what your concern was with respect to the wait time
between Dr. Diakow coming from the sleep room to the delivery room? How would you say
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J. 17, dkt. 28; Williams Dep. 21-22.)
Distilled, there is an argument by Defendant that Plaintiff could not perform a "crash
C-section" on her own– a "solo crash C-section." Plaintiff refers to this as "an improbably
remote hypothetical and impossible standard" pointing out the following:
•

The employment agreement D-130 provides that "Oakwood will provide those
clinical . . . support services ("Support Services") that Oakwood deems necessary
to enable physician to provide services." (Def.'s Mot. Summ. J. Ex. 5 D at 130.);

•

Shania Seibles, D.O., and Stephanie Crain, D.O., each testified that they were
never called upon to perform a solo crash C-section and Dr. Seibles could not
remember hearing of a doctor performing a crash C-section unassisted by a
doctor or resident. (Seibles Dep. 22-23, 29-30, Pl.'s Mot. Summ. J. Ex. 3, dkt. 263; Crain Dep. 26, Pl.'s Mot. Summ. J. Ex. 11, dkt. 26-11.);

it in your words?
...
Q. And I’m only asking you of your own knowledge what you personally observed?
A. Just that it would be an uncomfortable length of time that it would take her to get to the
patient from the phone call to the patient.
Q. [By Ms. Hiser] Did you ever observe her stopping along the way?
A. At the nurse’s station, yes, she would stop.
Q. And this was during a time when there was an emergency called into a delivery room?
[Mr. Vining objects]
A. Yes.
Q. Based on your understanding and your perception was there any reason for Dr. Diakow
to stop at the nurse’s station along the way?
[Mr. Vining objects]
A. There wouldn’t be a reason, but it appeared that she was stopping to rest. That was just
my perception.
(Williams Dep 34:4-35:8.)

14

•

Nurse Williams testified that for a C-section there would be three nurses present,
the surgeon and one or two resident surgeons. (Williams Dep. 23-24, 30.)

Neither party is entitled to summary judgment on this issue. The parties show that
there is a genuine question of fact as to whether Plaintiff was able to perform the essential
functions of an on-call physician.
2. Whether Oakwood's Request To Have Plaintiff Examined By A
Physiatrist was Job-Related and Consistent with Business Necessity
Plaintiff claims that Defendant violated the ADA by making "unjustified requests for
evaluation." (Compl. ¶ 32.) The ADA prohibits employers from requiring a medical
examination or making inquiry about the nature or severity of a disability, unless the
employer can show that the examination or inquiry is "job-related and consistent with
business necessity." 42 U.S.C. § 12112(d)(4)(A). To show that an examination is
job-related and consistent with business necessity, the employer has the burden of showing
that "(1) the employee requests an accommodation; (2) the employee's ability to perform
the essential functions of the job is impaired; or (3) the employee poses a direct threat to
himself or others." Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014)
(citation omitted); Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 581-82 (6th Cir. 2014).
Further, the employer must reasonably believe based on objective evidence that a medical
examination is necessary to prevent harm to the business. Kroll, 763 F.3d at 623.
There is no dispute that Defendant requested that Plaintiff be seen by a specialist. On
April 11, 2013, Edith Hughes and Dr. Glines met with Plaintiff and Hughes asked Plaintiff
to be evaluated by a Physical Medicine and Rehabilitation (PMR) specialist, giving Plaintiff
a list of Oakwood PMR physicians. (Hughes Dep. 17:4-17; Diakow Dep. 99:13-100:101:22;
15

Daily Notes, Thursday, April 11, 2013, Def.'s Mot. Summ. J. Ex. 9, dkt. 28-9.)
Plaintiff admits that she did not request accommodation. Defendant instead argues
that it had sufficient evidence from which to believe "that Plaintiff was impaired in her ability
to perform the on-call duties and that she posed a direct threat to patients." (Def.'s Mot.
Summ. J. 20.) "An employer may request a medical examination when 'there [is] significant
evidence that could cause a reasonable person to inquire as to whether [the] employee is
still capable of performing [her] job." Kroll, 763 F.3d at 624 (quoting Sullivan v. River Valley
Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999)). "An employee's behavior cannot be merely
annoying or inefficient to justify an examination; rather, there must be genuine reason to
doubt whether that employee can 'perform job-related functions.'" Id. (quoting Sullivan, 197
F.3d at 811). Further, "the decision to require a medical examination was justified only if
it was reasonably based on objective evidence known to" the individual who made the
decision to obtain the examination. Id. at 623. Evidence shows that Hughes, with Dr. Glines
present, requested that Plaintiff be examined by a physiatrist. (Hughes Dep. 16:15-18,
Def.'s Mot. Summ. J. Ex. 8, dkt. 28-8.) Hughes testified that the "greatest concern" with
Plaintiff "has always been her stamina and her ability to move quickly," and that is why she
asked for the evaluation. (Hughes Dep. 39:2-4.)
Defendant relies on Barnum v. Ohio State University Medical Center, 642 Fed. Appx.
525 (6th Cir. 2016), wherein the Sixth Circuit found that there were circumstances that
constituted "significant evidence that would cause a reasonable person to inquire whether
[the] employee is still capable of performing [her] job." Id. at 532. These included
information that "there were numerous concerns expressed about [the plaintiff's] inability
to concentrate and at least one instance where she could not perform a routine task," and
16

the department chair had also been "informed that one of [the plaintiff's] concerned
coworkers reported that [the plaintiff] had made a comment suggesting suicidal thoughts."
Id. at 533. In Barnum, there was a detailed account of the instance in which the plaintiff
could not perform the routine task of raising an operating table; as well as providing the
identification of the individual who had overheard the suicidally suggestive comment. Id.
at 527-28.
As examples, Defendant cites Hughes' observations and her reliance on the
observations of Dr. Glines and Nurse Williams. (Def.'s Mot. Summ. J. 19.) Yet Plaintiff
raises genuine issues of fact as to the objective merit, and even the admissibility, of some
of this information. For example, Hughes was the recipient of Williams' December 10, 2012
email which expressed the concerns of "OB staff" that Plaintiff may not be physically able
to perform her duties, and noted that Plaintiff had been observed using a wheelchair to
navigate through the unit. (Williams Email, Dec. 10, 2012, Def.'s Mot. Summ. J. Ex. 6, dkt.
28-6; Hughes Dep. 9:25-10:6.) Yet when Nurse Williams was deposed, she was unable to
identify which nursing staff had expressed concerns about Dr. Diakow:
Q. You requested the meeting [with Hughes]?
A. Yes.
Q. Was the purpose of the request to discuss Dr. Diakow?
A. Yes.
Q. What did you tell Ms. Hughes in the meeting?
A. That there was a concern reported to me by my staff that they were
concerned that physically she wouldn't be able to handle the responsibilities of
being the OB on-call physician.
Q. Which of your staff members told you that (sic) that they were concerned?
A. You've asked me that before and I can't recall exact names. I don't have a
list of who came to me. It was several nurses.
(Williams Dep. 26:6-19.)
Similarly, Dr. Glines' testimony of first-hand accounts was limited:
17

Q. . . . but what I'm asking you right now, let me be more specific, do you have
any evidence that she couldn't do a Cesarean (sic) section on her own?
A. I have evidence from – I observed a couple cases and – I can't give you
specifics, but over the past few years and also from what I heard from, again,
nurses, anesthesiologists, residents, and other attendings.
Q. So what did you personally observe, Dr. Glines, over the past couple of
years?
A. [Begins describing coming into work in the evening, when Dr. Diakow was
in the middle of a C-section twin delivery with two residents] . . . and they were
having a hard time getting the second baby out . . . . Dr. Diakow was in the
second assist position and the two residents were struggling and I walked in
and looked and I kept saying T the uterus, T the uterus, you have to open it
further, and I felt that that should have been said earlier, and so finally they did
that. Of course, you know, that's a big repair job then, but it's something that
has to be done for the safety of the baby, and Dr. Diakow made the comment,
well, I'm glad you're here, I need a coffee break, and then she broke scrub and
left and I took over the case.
Q. Okay. Was this prior to her leg injury or was this after her leg injury?
A. I don't know. I don't recall the exact time of the case. It was within the last
few years.
Q. All right. Any other case that you – that comes to mind that you personally
observed in the past couple years that left you to believe that she was unable
to work on a crashed – crash delivery?
A. That I personally observed, no.
(Glines Dep. 31-32, Pl.'s Mot. Summ. J. Ex. 4, dkt. 26-4.)
Hughes had observed Plaintiff using the wheelchair in the hallways, or stopping and
leaning against the wall and holding onto an available railing. (Hughes Dep. 10:9-22.) In
January 2013, when Hughes saw Plaintiff at a meeting and Plaintiff was sitting near, but
not in, the wheelchair in which she had come to the meeting, Hughes asked her if she could
walk and Plaintiff responded yes. (Hughes Dep. 11-12.) Hughes admits that the complaints
about Plaintiff's ability to move around that came from "other physicians" were made to Dr.
Glines, and not to her, and she relied on what Dr. Glines had to say about them. (Hughes
Dep. 24:10-25.) Similarly, with respect to the nursing staff concerns, Hughes relied on what
Williams set forth in the December 2012 email. (Hughes Dep. 25:1-16.)

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Plaintiff argues in part that there is an absence of an objective indication of a failure
of performance. (Pl.'s Mot. 21.) Plaintiff also sets forth evidence including Dr. Crain's
testimony that she had performed two C-sections with Dr. Diakow without incident.
Q. Did (sic) during these two incidents that you recall, did you have any
concern that Dr. Diakow didn't know what she was doing or wasn't doing things
correctly?
A. No.
(Crain Dep. 29:6-9.)
The parties have shown that material questions of fact exist as to whether Defendant
could have reasonably concluded that Plaintiff was unable to perform the essential
functions of her job. Defendant has shown some evidence to support a reasonable belief
that a medical examination was job-related and consistent with business necessity. Yet the
information relied upon by Defendant is also such that a jury may conclude that Defendant
could not reasonably have concluded that Plaintiff was unable to perform the essential
functions of her job.
With respect to whether Defendant had reason to determine that Plaintiff was a direct
threat to patient safety, "[a]n employee poses a 'direct threat' when she creates 'a
significant risk to the health or safety of others that cannot be eliminated by reasonable
accommodation.'" Kroll, 763 F.3d at 625 (quoting 42 U.S.C. § 12111(3)). Defendants again
appear to argue that Plaintiff could not have quickly attended to a crash C-section, nor
would she have the stamina to perform, should one occur. As set forth above, there are
questions of fact as to whether Plaintiff posed a safety risk and whether Hughes was
justified in requesting that she submit to a medical examination. There are genuine issues

19

of disputed fact and the Court denies summary judgment to both parties on issues related
to Hughes' verbal request for a medical examination.
3. Whether Defendant's Failure To Renew The On-Call Services Contract
Violated The ADA
Plaintiff alleges that as a "direct and proximate cause of being a person regarded as
having an impairment she was subjected to actions prohibited by the ADAA including . . .
the ultimate discharge from her employment." (Compl. ¶ 32.) Plaintiff's on-call services
contract expired in June 2013 and Defendant did not renew it. Despite that expiration,
Plaintiff continued to maintain staff privileges, her private practice at Oakwood and her
faculty preceptor duties. (Diakow Dep. 37:7-17.)
As set forth above, Plaintiff has provided evidence from which a jury could find that
Defendant regarded her as disabled, for example the December 11, 2012 email from
Martha Williams, Clinical Manager, Birthing Unit, to Valerie Koczara, with carbon copy to
Craig Glines and Juliet Hafford, then forwarded as an "FYI" to Edith Hughes:
It has become a concern of the OB staff that Dr. Diakow may not be physically
able to perform her duties as it relates to being the in house OB Physician. She
has been observed using a wheelchair to navigate through the unit, including
into patient rooms. The concern rests with whether she can perform a crash
C/Section or Vaginal Delivery without the assistance of another physician.
Please note, once a month she is working without even Resident coverage.
After discussions (today) with Dr. Glines, yourself and Juliet Hafford I am
advised to forward my concern back to you for further review and followup.
(William Email Dec. 10, 2012, Pl.'s Mot. Summ. J. Ex. 13.) Further, Hughes testified that
Plaintiff's contract was not renewed because "her stamina and her ability to move quickly
during an emergency." (Hughes Dep. 8-9.)

20

Defendant, however, bases its motion for summary judgment on the argument that
Plaintiff's claim must fail because she was not "otherwise qualified" for the position of an
OB on-call physician. (Def.'s Mot. Summ. J. 21.) As set forth above, there are material
issues of fact as to whether Plaintiff remained able to perform the duties of the on-call
physician position. For this reason, the Court denies the parties' cross motions for summary
judgment on this issue.
B. Whether Plaintiff Can Establish A Claim Of Age Discrimination
Plaintiff brings a claim of age discrimination, alleging that she was treated differently
from similarly situated younger employees. (Compl. Count II.) "The ADEA [Age
Discrimination in Employment Act] provides, in relevant part, that ‘[i]t shall be unlawful for
an employer ... to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age.'" Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 176 (2009) (quoting 29 U.S.C. § 623(a)(1) (emphasis added)). Defendant
argues that Plaintiff cannot make this showing and therefore, summary judgment on this
issue is appropriate. The Court agrees.
For ADEA claims, a plaintiff may establish a prima facie case of age discrimination by
producing direct or circumstantial evidence. See Lefevers v. GAF Fiberglass Corp., 667
F.3d 721, 725 (6th Cir. 2012). In response to Defendant's motion, Plaintiff argues that the
following circumstances are "direct evidence" that unlawful discrimination based on age
was at least a motivating factor in Defendant's actions: comments that Plaintiff's limping
was a bad image for the hospital, comments that management had lost confidence in her
abilities; giving Plaintiff a list of doctors to see; holding repeated meetings as to Plaintiff's
21

abilities even though she continued performing her duties; and terminating Plaintiff from the
on-call position based upon the alleged lack of stamina and ability to move quickly. (Pl.'s
Resp. 22, dkt. 32.)
Case law does not extend the label of direct evidence to comments made by every
manager or decision maker in the corporate setting. See Hopson v. DaimlerChrysler Corp.,
306 F.3d 427, 433 (6th Cir. 2002). "Any discriminatory statements must come from
decisionmakers to constitute evidence of discrimination. Statements by nondecisionmakers,
or statements by decisionmakers unrelated to the decisional process itself cannot suffice
to satisfy the plaintiff's burden of demonstrating animus." Geiger v. Tower Auto., 579 F.3d
614, 620-21 (6th Cir. 2009) (citations omitted). Edith Hughes, the division president at the
time Dr. Diakow's contract was not renewed, testified that she was the decision-maker who
decided not to renew Dr. Diakow's contract in 2013, and although she consulted with Dr.
Glines, "he was not the final decision-maker." (Hughes Dep. 5:14, 7:1-9.) Hughes testified
that she "did not renew the contract because of her [Plaintiff's] stamina and her physical
ability to move quickly in an emergency situation." (Hughes Dep. 8:22-9:4.) Plaintiff testified
that at an April 11, 2013 meeting with Hughes and Dr. Glines, Hughes told her that she had
heard that Plaintiff had to use a wheelchair to move from patients' rooms, which Plaintiff
denied. (Diakow Dep. 100:4-13.) Plaintiff further testified that she was told "that [her]
limping around was not a good image for the hospital. And [she] answered that the hospital
is full of injuries and wheelchairs and stretchers and crutches . . . ." (Diakow Dep.
100:4-13.) There is no evidence that the comment was related to age, and Plaintiff admits
that this was the meeting at which time her "injury was brought up." (Diakow Dep. 99:25.)
Plaintiff also testified that at this meeting she was given a list of doctors to see. (Diakow
22

Dep. 101:17-19.) Again, there is no evidence that this was connected to age, rather than
injury.
Plaintiff's reliance on Weberg v. Franks, 229 F.3d 514, 523-26 (6th Cir. 2000), for
the premise that "association of an adverse employment action with stigmatizing beliefs
creates a genuine issue of material fact," is misplaced. In Weberg, a case of reverse racial
discrimination, Robinson, the warden, "openly admitted that he would terminate an
employee simply because of the ‘perceptions of inmates,' and that he had in fact done just
that. He further indicated that he felt ‘strongly' that plaintiff should be terminated ‘[s]imply
because she was white and she was in a black housing unit.'" Id. at 524. "[I]f believed,
Robinson's statements lead to the conclusion that anti-white animus motivated the
employment decision he made regarding Plaintiff." Id. Here, despite Hughes' ready
admission that Plaintiff lacked "stamina" and "quick movement," there is no evidence that
Hughes operated under stigmatizing beliefs related to age. To the contrary, Hughes had
already renewed Plaintiff's contract when Plaintiff was in her eighties. Plaintiff admits that
Defendant did "not directly" use "any words stating ‘old' or ‘age'." (Pl.'s Resp. 22; dkt. 32.)
Plaintiff puts forth no evidence that Hughes' concerns that Plaintiff lacked "stamina" and
"quick movement" was related to anything other than her injury or perceived disability, as
set forth above. Plaintiff provides no direct evidence of age-related discriminatory intent
sufficient to withstand Defendant's motion for summary judgment on this issue.
Plaintiff also argues that she can show age discrimination by disparate treatment
where she was ultimately replaced by younger doctors for the on-call position. The Court
agrees with Defendant's position that despite Plaintiff's characterization of this evidence as
"direct," it is indirect or circumstantial evidence, as further evidenced by Plaintiff's own
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statement that this evidence of disparate treatment "raises an inference that age was an
illegal factor." (Pl.'s Resp. 23.) In order to sustain an ADEA claim with circumstantial
evidence under the McDonnell Douglas burden-shifting framework, Plaintiff must first
establish a prima facie case by showing that she: (1) belonged to a protected class (e.g.
was over 40 years of age); (2) suffered adverse employment action; (3) was qualified for
the position held when the adverse action was taken; and (4) was replaced by a younger
worker. See DiCarlo v. Potter, 358 F.3d 408, 417 (6th Cir. 2004) (overruled on other
grounds by Gross, 557 U.S. at 180) (citing McDonald v. Union Camp Corp., 898 F.2d 1155,
1159–60 (6th Cir.1990)); see also Moore v. AMPAC, 645 Fed. Appx. 495, 498 n.1 (6th Cir.
May 20, 2016) ("the ADEA protects employees over the age of 40"); Isotalo v. Kelly Servs.
Inc., 2013 WL 5913839, at *9 (E.D. Mich. Nov. 4, 2013) (Edmunds, J.) (noting that
"[a]lthough the Supreme Court, in Gross v. FBL Financial Servs., Inc., [557 U.S. 167
(2009),] indicated that they would not determine whether the McDonnell Douglas analysis
applies to ADEA claims, the Sixth Circuit generally applies it in analyzing circumstantial
evidence."); and Geiger, 579 F.3d at 622 ("we find that the McDonnell Douglas framework
can still be used to analyze ADEA claims based on circumstantial evidence"). Plaintiff
satisfies the first two prongs: she was 85 years old when Defendant undertook an adverse
employment action by deciding not to renew her contract. (Compl. ¶¶ 8, 27.) Third, there
is no question of fact that Plaintiff was objectively qualified for the on-call physician position
when she was not renewed. See Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 57576 (6th Cir. 2003) (a court "should focus on a plaintiff's objective qualifications" in
determining whether the plaintiff was qualified for the job held; a court should "focus on
criteria such as plaintiff's education, experience in the relevant industry, and demonstrated
24

possession of the required general skills."). Plaintiff argues that younger physicians took
the on-call shifts:
•

Dr. Crain, age 38, for all day shifts (selected as the "hospitalist", a new position,
which Plaintiff argues was not posted and which displaced her own position);

•

Dr. Pinkowski, age 22, and Dr. Nichols, age 59, for night shifts;

•

Remaining day shift doctors were Dr. Glines, age 54, and Dr. Butto, age 56.

(Pl.'s Resp. 23, dkt. 32). Plaintiff admits that Drs. Pinkowski and Nichols were brought on
board prior to her contract end, yet, she argues, the trier of fact could find that they were
"brought on board in preparation for" her ultimate dismissal. (Pl.'s Resp. 23.) But see
Geiger, 579 F.3d at 623 (In the Sixth Circuit, "a person is not considered replaced when his
duties are absorbed by another person 'or when the work is redistributed among other
existing employees already performing related work.'").
Viewing the evidence in the light most favorable to Plaintiff, the non-moving party, the
Court will proceed as if Plaintiff has shown a prima facie case. Yet even assuming Plaintiff
met this burden, she has not shown that Defendant's reasons for terminating her were
pretextual. "Once the plaintiff establishes a prima facie case, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the adverse employment
action. The burden then shifts back to [the] plaintiff to demonstrate that the employer's
stated reason is a pretext for discrimination." Martin v. Barnesville Exempted Vill. Sch. Dist.
Bd. of Educ., 209 F.3d 931, 934 (6th Cir. 2000); McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); see also Till v. Spectrum Juvenile Justice Servs., 805 F. Supp. 2d 354,
362 (E.D. Mich. 2011) (Edmunds, J.) (applying McDonnell Douglas burden shifting

25

analysis). Defendant meets its burden by maintaining that it terminated Plaintiff's contract
because she could not perform the requirements of the position.
To establish pretext, Plaintiff must show that Defendant's given reason for failing to
renew her contract "had no basis in fact, did not actually motivate the defendant's
challenged conduct, or was insufficient to motivate the defendant's challenged conduct."
Lefevers, 667 F.3d at 725 (citations omitted). Plaintiff fails to identify evidence from which
a jury could find that Defendant's reasons for failing to renew her contract were pretext for
engaging in age-based discrimination. Further, Hughes was the same decision-maker who
had renewed Plaintiff's on-call contract in 2008, when Plaintiff was 80 years old, and signed
amendments extending the terms through June 2011 (Plaintiff at age 83) and June 2013
(Plaintiff at age 85). See Mischer v. Erie Metro Housing Author., 168 Fed. Appx. 709, 716
(6th Cir. Feb. 17, 2006) ("The same-actor inference, . . . allows us 'to infer a lack of
discrimination from the fact that the same individual both hired and fired the employee.'");
see also Buhrmaster v. Overnite Transp. Co., 61 F.3d 461 (6th Cir. 1995). Hughes, the
decision-maker, was 70 years old at the time and a member of the same protected class
as Plaintiff, which weakens the inference of discrimination. See Howell v. Canton City Sch.
Dist. Bd. of Educ., 1997 WL 413630 (6th Cir. Jul. 17, 1997); (Def.'s Mot. Summ. J. 23, dkt.
28.). Plaintiff has not carried her burden of showing that Defendant's reasons for failing to
renew her contract were pretext to engage in discrimination based on her age.
IV.

CONCLUSION
For the reasons set forth above, the Court GRANTS in part Defendant's motion for

summary judgment (dkt. 28) on Count II, age discrimination, and DENIES in part

26

Defendant's motion for summary judgment on the remaining counts. The Court DENIES
Plaintiff's motion for summary judgment (dkt. 26).

SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: January 9, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record
on January 9, 2017, by electronic and/or ordinary mail.
Kelly Winslow for
Carol Bethel, Case Manager

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