Gong v. Cleveland Clinic Foundation et al

Filing 12

Memorandum of Opinion and Order For the reasons set forth herein, Defendants The Cleveland Clinic Foundation, Inc., Dr. Timothy Myshrall, and Miriam Dybiec's Motion to Dismiss (ECF No. 8 ) is granted. Judge Benita Y. Pearson on 1/31/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

YUSONG GONG,

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Plaintiff,
v.
THE CLEVELAND CLINIC
FOUNDATION, INC., et al.,
Defendants.

CASE NO. 1:16CV2624

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 8]

Pending is Defendants The Cleveland Clinic Foundation, Inc. (“CCF”), Dr. Timothy
Myshrall, and Miriam Dybiec’s Motion to Dismiss (ECF No. 8) pursuant to Fed. R. Civ. P.
12(b)(6) for failure to state a claim upon which relief can be granted. The Court has been
advised, having reviewed the record, the parties’ briefs and the applicable law. For the reasons
set forth below, the Court grants the motion.
I. Background
Pro Se Plaintiff Yusong Gong was hired by CCF in September 2012 as a senior research
technologist. Her employment at CCF was terminated on August 11, 2013 allegedly “in
retaliation for [ ] having asserted [her] rights [to an accommodation based on her work
restrictions].” Complaint (ECF No. 1) at PageID #: 4, ¶ 23. Plaintiff thereafter contacted the
Equal Employment Opportunity Commission (“EEOC”), which had her complete an intake
questionnaire (ECF No. 10-1) on May 9, 2014. Thereafter, Plaintiff filed a formal Charge (ECF

(1:16CV2624)
No. 8-1 at PageID #: 63) with the EEOC on July 14, 2014. She subsequently received a right to
sue letter, dated July 29, 2016 (ECF No. 1-1).
On October 26, 2016, Plaintiff filed a Complaint (ECF No. 1) that alleges that she was
unlawfully discriminated against by CCF, as well as Individual Defendants Dr. Myshrall and Ms.
Dybiec, in violation of two statutes. The first is Title I of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12111, et seq. The second is Section 504 of the Rehabilitation Act
(“Rehabilitation Act”), 29 U.S.C. § 794.
II. Standard of Review
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must take
all well-pleaded allegations in the complaint as true and construe those allegations in a light most
favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). A
cause of action fails to state a claim upon which relief may be granted when it lacks “plausibility
in th[e] complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must
contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal , 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Plaintiff is not
required to include detailed factual allegations, but must provide more than “an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Id. at 678. A pleading that offers “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid
of “further factual enhancement.” Id. at 557. It must contain sufficient factual matter, accepted

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as true, to “state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The
plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. Where a complaint
pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’” Id. at 557 (brackets omitted).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’” Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)).
III. Analysis
A. Plaintiff’s ADA Claims are Time-Barred.
The filing of a Charge with the EEOC is a prerequisite to any private action under Title I
of the ADA, 42 U.S.C. § 12117(a). A Charge must be filed with the EEOC within 300 days of
the occurrence of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1).
Plaintiff failed to file an EEOC Charge within 300 days after the alleged discrimination occurred.
She filed her Charge on July 14,2014, some 337 days after her August 11,2013 termination, i.e.,
37 days too late.

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Plaintiff argues that her charge was deemed filed by her May 9, 2014 submission of an
EEOC intake questionnaire (ECF No. 10-1). Memorandum in Opposition (ECF No. 10) at
PageID #: 68.
As a general matter, an intake questionnaire is not intended to constitute a charge of
discrimination. Zeller v. Canadian Nat’l Ry. Co., No. 15-1863, 2016 WL 7414201, at *6 (6th
Cir. Dec. 22, 2016). Thus, an untimely EEOC charge is still considered untimely even when
preceded by a timely intake questionnaire. Olynyk v. CRA Occupational Health, Inc., No.
3:04CV7249, 2005 WL 1459547, at *4 (N.D. Ohio June 21, 2005) (Carr, C.J.).
An intake questionnaire can constitute a valid charge in only certain limited
circumstances. To satisfy this exception, however, the intake form must contain, at a minimum:
(1) a “written statement sufficiently precise to identify the parties, and to describe generally the
action or practices complained of,” see 29 C.F.R. 1601.12(b); and (2) a request for the EEOC to
take action to end the discrimination. Olynyk, 2005 WL 1459547, at *4. The burden to produce
sufficient evidence meeting this exception is on Plaintiff. See Mason v. Univ. Primary Care
Practices, Inc., No. 1:14CV1407, 2015 WL 4637054, at *7 (N.D. Ohio Aug. 3, 2015) (Nugent,
J.); Vaughn v. Wal-Mart, No. 4:10CV00031, 2010 WL 4608403, at *4 (W.D.Va. Nov. 12, 2010)
(“If [a] Plaintiff asserts that his intake questionnaire was a charge, . . . the burden to support that
position lies with [him].”).
Contrary to her suggestions, Plaintiff has not met her burden to show that her May 9,
2014 intake questionnaire (ECF No. 10-1) – of which she attaches only the first page –

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constitutes a charge. This form does not request agency action, nor does it describe the actions
forming the alleged discrimination. In addition, although the final question on the first page of
this form asks her to provide “the reason for [her] claim of discrimination,” Plaintiff produced no
response to this question. ECF No. 10-1.
Nor did Plaintiff satisfy the timely charge requirement through her supplemental
questionnaire (ECF No. 10-2 at PageID #: 73). Plaintiff did not submit this form until July 17,
2014, well beyond the 300-day limitations period.
Accordingly, Plaintiff has not met her burden of showing that she filed a timely charge.
See Olynyk, 2005 WL 1459547, at *4; Aultman v. Lake Park Travel Ctr., No.
7:05-cv-00075(HL), 2007 WL 988715, at *3 (M.D. Ga. March 30, 2007) (intake questionnaire
completed by telephone not a charge because it did not contain a written statement sufficiently
precise to describe the actions complained of). Plaintiff’s ADA Claims thus fail as a matter of
law.
B. Plaintiff’s Rehabilitation Act Claims are Time-Barred.
Plaintiff does not dispute that she was required to file this lawsuit within two years of her
termination to maintain her Rehabilitation Act claims. Rather, she argues that the statute of
limitations should be tolled during the time in which the EEOC was investigating her
administrative charge, i.e., before it issued her a right to sue notice. ECF No. 10 at PageID #: 69.
The filing of an EEOC charge, however, is not a prerequisite to suit under the
Rehabilitation Act, so Plaintiff could have pursued these claims in court at any time. See Freed

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v. Consolidated Rail Corp., 201 F.3d 188, 193 (6th Cir. 2000). For this reason, as other courts
have recognized, the time the EEOC spent processing and investigating Plaintiff’s charge did not
toll the statute of limitations on her Rehabilitation Act Claims. See, e.g., Harris v. O’Malley, No.
WDQ-13-2579, 2015 WL 996557, at *5 (D. Md. March 4, 2015) (granting Rule 12(b)(6)
dismissal of Rehabilitation Act claim and holding that the statute of limitations was not tolled by
plaintiff’s filing of EEOC charge because the filing of the charge was not a prerequisite to a
Rehabilitation Act lawsuit). Thus, Plaintiff’s Rehabilitation Act Claims also are time-barred and
fail as a matter of law.
C. Plaintiff Cannot State a Claim Against the Individual Defendants.
Plaintiff alleges for the first time in her memorandum in opposition that Dr. Myshrall
“intentionally harmed” her by purportedly assigning her job duties that aggravated her injury.
ECF No. 10 at PageID #: 69-70.
Leaving aside Plaintiff’s improper attempt to amend the Complaint (ECF No. 1) through
her memorandum in opposition, this allegation does not state a viable claim against Dr. Myshrall
under either the ADA or the Rehabilitation Act. See, e.g., Lee v. Michigan Parole Bd., 104
Fed.Appx. 490, 493 (6th Cir. 2004) (“Lee may not maintain an action under the ADA or the
[Rehabilitation Act] against the individual defendants identified in his complaint because neither
the ADA nor the [Rehabilitation Act] impose liability upon individuals.”). Moreover, Plaintiff
still has not made any allegations – in the Complaint (ECF No. 1) or memorandum in opposition

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– to assert claims against Ms. Dybiec. For this additional reason, Plaintiff’s claims against Dr.
Myshrall and Ms. Dybiec fail as a matter of law.
IV. Conclusion
For the foregoing reasons, Defendants The Cleveland Clinic Foundation, Inc., Dr.
Timothy Myshrall, and Miriam Dybiec’s Motion to Dismiss (ECF No. 8) is granted.

IT IS SO ORDERED.

January 31, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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