Siwik v. Cleveland Clinic Foundation

Filing 59

Memorandum Opinion & Order. Plaintiff's 51 Motion for Partial Summary Judgment is denied; Cleveland Clinic Defendants' 52 Motion for Summary Judgment is granted in part and denied in part; and Akron Children's Defendants' 50 Motion for Summary Judgment is granted in part and denied in part. Signed by Magistrate Judge Jonathan D. Greenberg on 3/5/2019. (S,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
ERNEST SIWIK, M.D.,
Plaintiff,
v.
CLEVELAND CLINIC FOUNDATION, et al.,
Defendants.

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CASE NO: 1:17CV1063

MAGISTRATE JUDGE
JONATHAN D. GREENBERG

MEMORANDUM OPINION &
ORDER

This case is before the Court upon consent of the parties, entered October 10, 2017.
(Doc. No. 17.) Currently pending are Defendants Akron Children’s Hospital and Dr. John
Lane’s Motion for Summary Judgment, Defendants the Cleveland Clinic Foundation and Dr.
Elizabeth Saarel’s Motion for Summary Judgment, and Plaintiff Ernest Siwik’s Motion for
Partial Summary Judgment. (Doc. Nos. 50, 51, 52.)
Plaintiff Ernest Siwik (“Siwik”) filed a Brief in Opposition to Defendants Akron
Children’s Hospital and Dr. John Lane’s (“The Akron Children’s Defendants”) Motion for
Summary Judgment on October 22, 2018, to which Defendants replied. (Doc. Nos. 53, 57.) The
Akron Children’s Defendants also filed a Brief in Opposition to Plaintiff’s Motion for Partial
Summary Judgment on October 22, 2018, to which Plaintiff replied. (Doc. Nos. 54, 58.)
Plaintiff Siwik also filed a Brief in Opposition to Defendants the Cleveland Clinic
Foundation and Dr. Elizabeth Saarel’s (“The Cleveland Clinic Defendants”) Motion for
Summary Judgment on October 22, 2018, to which Defendants replied. (Doc. Nos. 55, 56.)
For the following reasons, (1) Plaintiff’s motion is DENIED; (2) the Cleveland Clinic
Defendants’ motion is GRANTED IN PART and DENIED IN PART; and (3) the Akron
Children’s Defendants’ motion is GRANTED IN PART and DENIED IN PART. (Doc. Nos. 50,

51, 52.) Specifically, the Court finds:
(1) Defendant Cleveland Clinic’s Motion for Summary Judgment as to
Counts One, Two, Four, Five, and Eight is GRANTED;
(2) Defendant Cleveland Clinic’s Motion for Summary Judgment as to
Counts Three and Six is DENIED;
(3) Defendant Akron Children’s Hospital’s Motion for Summary Judgment
as to Count Eight is GRANTED;
(4) Defendant Akron Children’s Hospital’s Motion for Summary Judgment
as to Counts Three and Seven is DENIED;
(5) Defendant Saarel’s Motion for Summary Judgment as to Count Eight is
DENIED;
(6) Defendant Lane’s Motion for Summary Judgment as to Count Eight is
DENIED;
(7) The Akron Children’s Defendants’ Motion for Summary Judgment on
the issue of punitive damages is DENIED;
(8) Plaintiff Siwik’s Motion for Partial Summary Judgment as to Counts
Three, Seven, and Eight is DENIED.
I. Procedural Background
On May 22, 2017, Plaintiff Ernest Siwik (“Plaintiff” or “Siwik”) filed a pro se Complaint
in this Court against Defendant the Cleveland Clinic Foundation (“Cleveland Clinic”), alleging
various claims arising from the Cleveland Clinic’s decision not to hire him for a pediatric
interventional cardiologist position. (Doc. No. 1.) Defendant Cleveland Clinic filed an Answer
on July 31, 2017. (Doc. No. 7.)
Siwik thereafter retained counsel and filed his First Amended Complaint on September
11, 2017. (Doc. Nos. 10, 14.) The First Amended Complaint added three new defendants:
Elizabeth Saarel, M.D., Akron Children’s Hospital, and John Lane, M.D. (Doc. No. 14.) On

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October 2, 2017, the Cleveland Clinic Defendants filed an Answer to the Amended Complaint.
(Doc. No. 16.) The Akron Children’s Defendants filed their Answer to the Amended Complaint
on November 21, 2017. (Doc. No. 22.)
On February 28, 2018, Siwik filed a Second Amended Complaint, asserting the following
eight claims: (1) national origin discrimination under Title VII as to the Cleveland Clinic (Count
1); (2) federal age discrimination as to the Cleveland Clinic (Count 2); (3) federal retaliation
claims as to the Cleveland Clinic and Akron Children’s Hospital (Count 3); (4) age
discrimination under O.R.C § 4112.14 as to the Cleveland Clinic (Count 4); (5) national origin
discrimination under O.R.C. § 4112.02 as to the Cleveland Clinic (Count 5); (6) retaliation under
O.R.C. §4112.02 as to the Cleveland Clinic (Count 6); (7) retaliation under O.R.C. §4112.02 as
to Akron Children’s Hospital (Count 7); and (8) aiding and abetting discrimination under O.R.C.
§4112.02 as to all Defendants (Count 8). (Doc. No. 28.) Both the Akron Children’s Defendants
and the Cleveland Clinic Defendants filed Answers on March 14, 2018. (Doc. No. 30, 31.)
On September 21, 2018, the Akron Children’s Defendants filed a Motion for Summary
Judgment as to all of Siwik’s claims against them (Counts 3, 7, 8). (Doc. No. 50.) Siwik filed a
Brief in Opposition on October 22, 2018, to which Defendants replied. (Doc. Nos. 53, 57.)
Also on September 21, 2018, Plaintiff filed a Motion for Partial Summary Judgment as to
all of his claims against the Akron Children’s Defendants (Counts 3, 7, 8). (Doc. No. 51.) The
Akron Children’s Defendants filed a Brief in Opposition on October 22, 2018, to which Siwik
replied. (Doc. No. 54, 58.)
Finally, on September 21, 2018, the Cleveland Clinic Defendants filed a Motion for
Summary Judgment as to all of Siwik’s claims against them (Counts 1, 2, 3, 4, 5, 6, 8). (Doc.

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No. 52.) Plaintiff filed a Brief in Opposition on October 22, 2018, to which the Cleveland Clinic
Defendants replied. (Doc. Nos. 55, 56.)
This matter is now fully briefed and ripe for consideration.
II. Facts
Dr. Ernest Siwik (“Siwik”) is a United States citizen. (Doc. No. 50-7, Siwik Depo at Tr.
134.) He is currently the acting director of cardiology at Children’s Hospital in New Orleans
and an associate professor of pediatrics at Louisiana State University. (Doc. No. 50-2, Siwik
Depo at Tr. 24.) In 2008, Siwik was the acting director of pediatric cardiology at Rainbow
Babies and Children’s Hospital. (Id. at Tr. 25.) During his time in this position, he performed
both interventional and general cardiology work. (Doc. No. 50-7, Siwik Depo at Tr. 36-37.) In
late 2008, Siwik accepted a full-time position as general cardiologist at the Cleveland Clinic. He
began this position on or about July 1, 2009. (Doc. No. 50-2, Siwik Depo at Tr. 26-28.) Siwik
worked in this capacity for about three weeks, before leaving to work at Children’s Hospital in
New Orleans as a full-time interventional cardiologist. (Id. at 27-28.)
At the time of his move to New Orleans, Siwik’s family was unable to move to Louisiana
with him. However, Siwik was able to work out a schedule with his employer which allowed
him to return to Ohio on a regular basis. (Id. at 28.) During this time, Siwik worked for the
Cleveland Clinic on a contract basis, seeing patients 1-2 days each month. (Id. at 29.) Siwik
continued to work for the Cleveland Clinic on a contract basis until May 31, 2015, when he
formally resigned. (Doc. No. 50-7, Siwik Depo at Tr. 84, Exh. Z.)
In 2012, Siwik began to look for employment opportunities outside of New Orleans.
(Doc. No. 50-2, Siwik Depo at Tr. 36.) On September 10, 2013, Siwik emailed Dr. Prieto and

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Dr. Piedimonte, two physicians at the Cleveland Clinic, expressing his interest in a cardiologist
position. (Doc. No. 50-5, Saarel Depo, Exh. 20.) Dr. Prieto responded to this email on
September 12, 2013, informing Siwik that while a cardiologist was leaving the Cleveland Clinic,
there were no plans to replace this physician. (Id.)
Interventional Cardiologist Position
On March 9, 2014, Dr. Siwik again emailed Drs. Prieto and Piedimonte, indicating he
was aware another cardiologist was leaving the Cleveland Clinic. (Id. at Exh. 21.) He reiterated
his interest in returning to Cleveland on a permanent basis. (Id.) Dr. Prieto responded to this
email, informing Dr. Siwik she had offered the position to her current catheterization fellow, Dr.
Suntharos. (Id.) Dr. Siwik responded on March 12, 2014, expressing confusion over the fact
that within a few months after Dr. Prieto reported she was “not hiring an interventionalist, one
[was] hired.” (Id.)
Dr. Suntharos officially began to work for the Cleveland Clinic as an interventional
cardiologist on August 25, 2014. (Id. at Tr. 33, 157.) Dr. Suntharos is not a U.S. citizen. (Doc.
No. 52-1, Declaration of Michelle Seifert.) The Cleveland Clinic hired Dr. Suntharos on a
temporary work visa (H1-B) and subsequently sponsored his green card application. (Id.)
In order to comply with immigration guidelines related to the employment of Dr.
Suntharos, the Cleveland Clinic posted advertisements in the Plain Dealer and the Sun Press/Sun
Messenger in July 2015. (Doc. No. 50-6, Saarel Depo, Exh 25.) These advertisements read as
follows:
PEDIATRIC INTERVENTIONAL CARDIOLOGIST
Cleveland Clinic in Cleveland, OH seeks Pediatric Interventional
Cardiologist to treat wide variety of patients; perform cardiac
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catheterizations including state-of-the-art interventions in pediatric
patients with acquired and congenital heart disease and adult
congenital patients; and evaluate and manage general pediatric
cardiology patients in outpatient and inpatient settings. On call
responsibilities. Position requires: MD or foreign equivalent as
determined by a credentials evaluation or as evidenced by an
ECFMG Certificate, Board Eligibility or Board Certification in
Pediatric Cardiology, 1 year of advanced fellowship training in
Pediatric Cardiology, and eligibility for Ohio Medical Licensure.
Resumes to: Michelle Seifert, 1950 Richmond Rd, Mail Code Tr
302, Cleveland, Ohio 44124.
(Doc. No. 50-5, Saarel Depo, Exh. 23.) The Cleveland Clinic also posted this ad on its own
website. (Doc. No. 50-6, Saarel Depo, Exh. 29.) The ad on the website contained a notice the
position was “posted in connection with the filing of an application for permanent alien labor
certification.” (Id.) The Cleveland Clinic asserts these job postings were made solely as part of
Dr. Suntharos’s green card application, not as part of a physician hiring process. (Doc. No. 52-1,
Declaration of Michelle Seifert.)
Three applicants responded to the job posting, one of which was Siwik. (Doc. No. 50-5,
Saarel Depo at Tr. 193, 214.) After reviewing the applications, the Cleveland Clinic concluded
none of the applicants were qualified for the position. Based upon this conclusion, the Cleveland
Clinic submitted an application for the permanent employment certification of Dr. Suntharos.
(Id. at Tr. 214, 215, Doc. No. 50-6, Saarel Depo Exh. 32.)
On August 4, 2015, Michelle Seifert, an employee at the Cleveland Clinic, emailed Siwik
to thank him for his interest in the position and inform him the position required a one-year
advanced fellowship training1 in pediatric cardiology. (Doc. No. 50-6, Saarel Depo Exh. 29.)

1

The Cleveland Clinic requires its pediatric interventional cardiologists to have an
advanced fellowship training in interventional cardiology. (Doc. No. 50-5, Saarel Depo at Tr.
38.) Since 1996, the Cleveland Clinic has not hired any interventionalists who have not
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Siwik has not completed an interventional fellowship, though such fellowships were available at
the time he was undergoing training. (Doc. No. 50-7, Siwik Depo at Tr. 130-131.) However,
Siwik received post-graduate training at Duke and Harvard, during which he performed
procedures under the supervision of an interventional cardiologist. (Id. at Tr. 24-27.)
In October 2015, Dr. Elizabeth Saarel (“Saarel”) became the chair of pediatric cardiology
at the Cleveland Clinic. (Doc. No. 50-5, Saarel Depo at Tr. 21, 34.) On November 1, 2015,
Siwik filed a charge against the Cleveland Clinic with the Equal Employment Opportunity
Commission (“EEOC”). (Doc. No. 50-8, Siwik Depo, Exh. HH.) His claims related to the
interventional cardiologist position filled by Dr. Suntharos. (Id.)
General Cardiologist Position at Hillcrest
The Cleveland Clinic hired a general pediatric cardiologist, Dr. Challapudi, at its
Hillcrest location on September 12, 2016. (Doc. No. 50-5, Saarel Depo at Tr. 152, 167.) Prior to
the hiring of Dr. Challapudi, Siwik responded to an ad for this position he saw in a cardiology
journal. (Doc. No. 50-7, Siwik Depo at Tr. 152-153.) Siwik does not recall if he submitted an
application through the Cleveland Clinic’s website, but he did email Saarel directly on July 1,
2016, informing her he was interested in the position. (Id. at Tr. 153, Doc. No. 50-6, Saarel
Depo, Exh. 33.)
On July 4, 2016, Saarel emailed Siwik with the response of “Great” and proceeded to
inform Siwik she was “already bringing one person in to interview who was a final candidate”

completed this training. (Doc. No. 52-3, Declaration of Lourdes Prieto, MD.) The Cleveland
Clinic has never hired Siwik as an interventional cardiologist, but did hire him as a general
cardiologist in 2008. (Doc. No. 50-2, Siwik Depo at Tr. 26-28.)
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for another position. (Doc. No. 50-6, Saarel Depo, Exh. 33.) Siwik responded to this email,
inquiring if his candidacy for any position was a “non-starter,” as he “felt like a pariah with
regards to being considered for anything.” (Id. at Exh. 34.) Saarel responded on July 15, 2016,
assuring Siwik his “candidacy is NOT a non-starter at all.” (Id.)(emphasis in original) She
emphasized the “timing for this hire was crucial and [the Cleveland Clinic] already had a
candidate I[sic] in the pipeline when [Siwik] first contacted [her] about the position.” (Id.)
Saarel assured Siwik she would let him know if a second position opened. (Id.)
Meanwhile, Dr. Zahka, a cardiologist at the Cleveland Clinic, approached Dr. Saarel
about hiring Dr. Siwik for the Hillcrest position. (Doc. No. 50-5, Saarel Depo at Tr. 169-170.)
What transpired during the conversation between Saarel and Dr. Zahka is in dispute. According
to Saarel, she told Dr. Zahka that Siwik should apply for the position. (Id. at 171.) According to
Siwik, Dr. Zahka told him Saarel indicated Siwik’s “EEOC complaint would likely be a dealbreaker with regards to employment at the Cleveland Clinic.” (Doc. No. 50-7, Siwik Depo at Tr.
168.) Dr. Zahka asserts Saaral told him she was “not open to hiring [Siwik] and that his claims
against the Cleveland clinic were an issue,” but he did not “recall her exact words.” (Doc. No.
55-11, Declaration of Kenneth Zahka, M.D.) Saarel denies she told Dr. Zahka the EEOC charge
was an issue. (Doc. No. 50-5, Saarel Depo at Tr.173.)
On August 24, 2016, Saaral and Siwik spoke over the phone. (Id. at Tr. 224.) According
to Saarel, she was struck by how “strong [Siwik’s] anger and bitterness was towards the
Cleveland Clinic” during the conversation. (Id. at Tr. 176.) According to Siwik, he and Saarel
discussed the EEOC charge during this conversation. (Doc. No. 50-7, Siwik Depo at Tr. 172.)
Following this phone conversation, Saarel emailed Siwik to say she did not “fully

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understand” his desire to work at the Cleveland Clinic given his “ongoing negative feelings.”
(Doc. No. 50-6, Saarel Depo. Exh. 36.) Siwik responded on September 4, 2016, asserting he was
not angry at the Cleveland Clinic, but rather “very disappointed that over the past 3 or 4 years
[he had] been shut out of consideration for anything, including positions [he was] over-qualified
for.” (Id.) The EEOC charge was not referenced at any point in this email chain. (Doc. No. 507, Siwik Depo at Tr. 177-178.)
In August 2016, Saaral spoke to Dr. Zahka a second time, observing Dr. Siwik was “very
angry against multiple people here at the Clinic” and “didn’t trust the Clinic.” (Doc. No. 50-5,
Saarel Depo at Tr. 171, 172.) According to Saarel, she asked Dr. Zahka “why would [Siwik]
want to work here if he thinks this place is so rotten and the people in it.” (Id. at 172.) Saarel
testified she informed Dr. Zahka that Siwik had not applied for the Hillcrest position and had
instead wanted to talk with her first. (Id.)
Akron Children’s Position
On November 16, 2016, Saarel emailed Dr. John Lane (“Lane”), a cardiologist at Akron
Children’s Hospital, informing him Siwik was looking for a position in Northeast Ohio. (Doc.
No. 50-3, Lane Depo, Exh. 3, 4.) Shortly thereafter, Lane contacted Siwik, inquiring if Siwik
was interested in possibly working at Akron Children’s. (Doc. No. 50-2, Siwik Depo at Tr. 5657.) Siwik responded he was interested in “any clinical position that can allow [him] to work in”
Northeast Ohio. (Doc. No. 50-3, Lane Depo, Exh. 5.)
In early 2017, Akron Children’s conducted a financial analysis to determine if it was
“financially reasonable to replace a part-time person with a full-time person.” (Id. at Tr. 92.)
The analysis specifically compared the costs and benefits of a departing part-time physician with

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Siwik. (Id. at Exh. 7.) This analysis noted “Dr. Siwik is a seasoned cardiologist who will ramp
up immediately and can function in a single cardiologist setting.” (Id.) Lane testified the
position was not approved at the time of the analysis. However, Lane knew Akron Children’s
“had the potential for creating another position to fill, and [he] was considering [Siwik] as a
possibility for that position.” (Id. at Tr. 69.) Lane testified he was “trying to craft a position that
Dr. Siwik could potentially fall into.” (Id. at Tr. 96.) Akron Children’s approved this position in
May 2017 and posted an ad in June 2017. (Id. at Tr. 69-70, Doc. No. 50-4, Lane Depo, Exh. 10,
11, 12.)
On May 2, 2017, Siwik attended a recruitment dinner with Lane and several other
physicians from Akron Children’s. (Doc. No. 50-3, Lane Depo. Exh. 1, Exh. 9.) Following this
dinner, on May 16, 2017, Siwik requested Lane write a letter on his behalf to demonstrate he was
actively seeking employment in Northeast Ohio. He requested this letter to assist with his
ongoing custody dispute. (Doc. No. 50-2, Siwik Depo at Tr. 61, 121; Doc. No. 50-3, Lane Depo
at Tr.16-17.)
Lane agreed to write the letter. This letter, dated May 17, 2017, read as follows:
Dear Dr. Siwik:
This letter is to follow up on our recent telephone conversation. Thank you
for visiting with members of my clinical team in the Heart Center on May 2,
2017.
I believe your qualifications are a good fit for the needs of our program. We
are looking for an experienced pediatric cardiologist who is able to assume a
busy outpatient practice. In addition, your skills as an interventional
pediatric cardiologist fit nicely with our physician staffing needs in the
Cardiac Cath Lab as well.
I look forward to the next step which is to meet with our senior leadership.
This will be arranged by our physician recruitment team.
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I appreciate your sincere interest in seeking employment at Akron Children’s
Hospital.
(Doc. No. 50-2, Siwik Depo Exh. F).
Meanwhile, on May 18, 2017, Siwik mailed Saaral a copy of his federal lawsuit
complaint. (Doc. No. 50-5, Saarel Depo at Tr. 235, Doc. No. 50-6, Saarel Depo Exh. 39.) In
late May or early June 2017, Sarrel told Lane over the phone Siwik had made a discrimination
claim against the Cleveland Clinic. (Doc. No. 50-3, Lane Depo at Tr. 50.) According to Saaral,
she did not suggest or imply Akron Children’s should not hire Siwik and the conversation was
not regarding Siwik’s candidacy with Akron Children’s. (Doc. No. 50-5, Saarel Depo at Tr.
270.)
Following this conversation, Lane notified the executive vice president and the chief
medical officer of Akron Children’s of the lawsuit. (Doc. No. 50-3, Lane Depo at Tr.53.) Lane
notified these individuals because Akron Children’s was “in the process of considering Dr. Siwik
for a position” and he was not certain if this information was “relevant or not.” (Id. at 54.) In
addition, Lane told Siwik that Saarel spoke to him about the lawsuit. Siwik subsequently sent
Lane a copy of his Complaint around June 22, 2017. (Id. at 59.)
According to Siwik, around June 25, 2017, Lane told him his candidacy for the position
at Akron Children’s had been “set aside.” (Doc. No. 50-2, Siwik Depo at Tr. 54, 65.)
On June 28, 2017, Tina Salzone, an administrator with Akron Children’s, emailed Lane
and told him to “encourage [Siwik] to officially apply for the position so that we have his official
application on file.” (Doc. No. 50-4, Lane Depo. Exh. 13.) Lane informed Ms. Salzone that
Siwik had “sent [him] a copy of his lawsuit which does clarify some points.” (Id.) Lane also

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informed Ms. Salzone he had let Siwik know the position was posted for him to officially apply.
(Id. at Exh. 14.)
On July 3, 2017, Siwik and Lane had a one-on-one meeting at a restaurant. (Doc. No.
50-2, Siwik Depo at Tr. 63.) What transpired at this meeting is in dispute. According to Siwik,
Lane told him he was “no longer considered a candidate for the position at Akron Children’s at
that point in time.” (Id. at Tr. 65.) Siwik testified Lane explained this was due to the
“communication he had with Dr. Saarel and the Cleveland Clinic.” (Id. at Tr. 66.) Lane disputes
Siwik’s testimony, asserting at that point in time, “a lawsuit really was not an issue.” (Doc. No.
50-3, Lane Depo at 58.)
On July 5, 2017, Siwik emailed Saarel, accusing her of discussing his lawsuit with Lane
and concluding “[a]s a result, [his] recruitment [had] been put on hold and ads [were] placed for
the Akron position in other venues.” (Doc. No. 50-5, Saarel Depo at Tr. 250, Doc. No. 50-6,
Saarel Depo Exh. 40.) Saarel did not respond to this email. (Doc. No. 50-5, Saarel Depo at Tr.
250.)
On July 20, 2017, Siwik emailed Lane. (Doc. No. 50-2, Siwik Depo at Tr. 45.) Siwik
testified this email was “a last-ditch attempt to try to avoid” his ex-wife moving his son to Rhode
Island. (Id. at 47.)
This email read as follows:
Dear John:
I’m sorry to bother, but I felt obligated to reach out one last time before my
initial hearing in the Domestic Relations Court on July 25th. As you know, it
involves Camden being able to relocate to Rhode Island and the best, and
possibly only, way I can forestall that is to be able to demonstrate I will be
employed in the Cleveland area shortly. I understand that isn’t necessarily
Akron’s problem, but I believe that CCF’s actions with regards to my
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candidacy with them, and now with you, were wrong and likely unlawful.
And again, all I asked for was a fair opportunity to do what I have done
competently, and with alacrity, for 20 years now.
Anyways, if you can figure out a way to help me, I’d be grateful. It’ll be
heartbreaking for me to have Camden move as a consequence of their
actions.
Thanks for your consideration and honesty. Just for your records, I attached
a recommendation letter that was ironically sent to Tess last year on my
behalf when I asked to be considered for a general cardiology position at
Hillcrest. Also, given CCF’s recent actions, my complaint in Federal court
is being amended. Since I provided you a copy of the initial complaint, I’m
going to forward you what is being added.
Thanks again for your time.
Ernie.
(Id. at Exh. E). Attached to this email was an amended complaint Siwik had drafted. (Id.) This
complaint included allegations Lane had told Siwik his “candidacy had been set aside for the
time being because he and Akron Children’s Hospital had been notified by the Cleveland Clinic
Foundation” of the lawsuit. It further alleged Lane told Siwik “Akron Children’s now needed to
be ‘more deliberate’ giving CCF’s ‘alerts,’ and that he could not foresee when those
circumstances may change.” (Id.) Lane denies making the statements contained in this
complaint. (Doc. No. 50-3, Lane Depo at Tr. 127-129.)
Ultimately, Akron Children’s did not offer Siwik a position. (Id. at Tr. 44.) Lane
testified Akron Children’s declined to hire Siwik after he quoted conversations between him and
Lane in his amended complaint. (Id. at Tr. 101-102.) Lane asserts Siwik “quoted me
extensively out of context” and he viewed this as a “betrayal.” (Id. at Tr. 102.) Lane shared this
email with the executive vice president and chief medical officer of Akron Children’s, who
advised Lane to break off all communication with Siwik. (Id. at Tr. 103, 148.)
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On September 19, 2017, Siwik filed a second EEOC charge against the Cleveland Clinic.
(Doc. No. 50-8, Siwik Depo, Exh. NN.) Within this charge, Siwik made allegations regarding
the Hillcrest position and the Akron Children’s position. (Id.) He also asserted Akron
Children’s had retaliated against him for filing a lawsuit against the Cleveland Clinic. (Id.)
III. Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure provides in relevant part that:
A party may move for summary judgment, identifying each claim or defense—or
the part of each claim or defense—on which summary judgment is sought. 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). Rule 56(e) provides that “[i]f 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 . . . consider the fact undisputed for purposes of the motion . . . [and] grant summary
judgment if the motion and supporting materials—including the facts considered
undisputed-show that the movant is entitled to it.” Fed. R. Civ. P. 56(e).
Summary judgment is appropriate when no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed. R. Civ. P. 56(c)). See also LaPointe
v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993). The burden of showing the absence of any
such genuine issues of material facts rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits,” if any, which it believes demonstrates the absence
of a genuine issue of material fact.

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Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)). A fact is “material only if its resolution
will affect the outcome of the lawsuit.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
Once the moving party has satisfied its burden of proof, the burden then shifts to the
nonmoving party. The court must afford all reasonable inferences and construe the evidence in
the light most favorable to the nonmoving party. See Cox v. Kentucky Dep't. of Transp., 53 F.3d
146, 150 (6th Cir. 1995) (citation omitted); United States v. Hodges X–Ray, Inc., 759 F.2d 557,
562 (6th Cir. 1985). However, the nonmoving party may not simply rely on its pleading, but
must “produce evidence that results in a conflict of material fact to be solved by a jury.” Cox, 53
F.3d at 150.
Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “the mere existence of a
scintilla of evidence in support of plaintiff's position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57 F.3d 476,
479 (6th Cir. 1995) (quoting Anderson, 477 U.S. at 52 (1986)). Moreover, if the evidence is
“merely colorable” and not “significantly probative,” the court may decide the legal issue and
grant summary judgment. Anderson, 477 U.S. at 249–50 (citation omitted). General averments
or conclusory allegations of an affidavit do not create specific fact disputes for summary
judgment purposes. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888–89, 110 S.Ct. 3177,
111 L.Ed.2d 695 (1990).
However, an unusual situation is created when cross motions for summary judgment are

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filed. As the Sixth Circuit has explained, the reviewing court “must evaluate each party’s
motion on its own merits, taking care in each instance to draw all reasonable inferences against
the party whose motion is under consideration.” B.F. Goodrich Co. v. U.S. Filter Corp., 245
F.3d 587, 592 (6th Cir. 2001)(citing Taft Broadcasting Co. v. United States, 929 F.2d 240, 241
(6th Cir. 1991).). Accordingly, “if it is possible to draw inferences in either direction, then both
motions for summary judgment should be denied.” Champion Foodservice, LLC v. Vista Food
Exchange, Inc., 2016 WL 4468001 at *4 (N.D. Ohio Aug. 24, 2016)(citing B.F. Goodrich Co.,
245 F.3d at 592-593.).
IV. Analysis
A.

The Cleveland Clinic and Dr. Elizabeth Saarel

1.

Timeliness of federal discrimination claims
The Cleveland Clinic Defendants argue Siwik’s federal discrimination claims are time-

barred. (Doc. No. 52 at 21-22.) Siwik maintains these claims were either timely filed or
“encompassed within the scope of his 2015 charge.” (Doc. No. 55 at 16-17.)
A plaintiff alleging employment discrimination must file a timely charge of
discrimination with the EEOC before bringing a Title VII or ADEA suit in federal court. Amini
v. Oberlin College, 259 F.3d 493, 498 (6th Cir. 2001). In a “deferral state,” such as Ohio, the
plaintiff's suit must be filed within 300 days after the alleged unlawful practice occurred. Id.
“[T]he starting date for the 300-day limitations period is when the plaintiff learns of the
employment decision itself, not when the plaintiff learns that the employment decision may have
been discriminatorily motivated.” Id. at 499. The same 300-day time limit for filing a charge
with the EEOC applies in age discrimination cases brought under the ADEA. Id., citing 29

16

U.S.C. § 626(d).
It is undisputed Siwik filed his EEOC charge on November 1, 2015. (Doc. No. 50-8,
Siwik Depo, Exh. HH.) However, the parties disagree as to what date triggered the 300 day
limitation period for the discrimination claims relating to the interventional cardiologist position.
The Cleveland Clinic argues the 300 days began to run in March 2014, when Siwik learned Dr.
Suntharos was hired as an interventional cardiologist. (Doc. No. 52 at 22.) Siwik maintains the
limitations period did not begin until August 4, 2015,2 when the Cleveland Clinic rejected him
for the position. (Doc. No. 55 at 16.)
The Court finds the limitations period began on August 4, 2015, and thus, Siwik’s
November 1, 2015 EEOC filing is timely. The Cleveland Clinic posted an ad for an
interventional cardiologist position in July 2015. (Doc. No. 50-5, Saarel Depo, Exh. 23.) Siwik
promptly responded to this job posting, genuinely thinking he was applying to an open position
within the Cleveland Clinic. The Cleveland Clinic’s response to his application did not suggest
otherwise. Indeed, on August 4, 2015, the Cleveland Clinic emailed Dr. Siwik to thank him for
his interest in the position and inform him he did not meet the requisite qualifications. (Id. at Tr.
202.) This email, in rejecting him for the position, was when Siwik learned of the employment
decision, thereby triggering the 300 day limitation period.
The Cleveland Clinic also argues Siwik’s federal discrimination claims pertaining to the
position at Hillcrest are time-barred. (Doc. No. 52 at 22.) The Cleveland Clinic asserts Siwik
learned “he would not be hired for this position in July 2016, over a year before he filed his

2

Siwik used the date of July 14, 2015 in his brief. (Doc. No. 55 at 16.) However,
this appears to be an oversight, as the Cleveland Clinic did not reject him for the position via
email until August 4, 2015. (Doc. No. 50-5, Saarel Depo at Tr. 202.)
17

second EEOC charge in September 2017.” (Id.) Siwik disputes this, asserting these
discrimination claims were “encompassed within the scope of his 2015 charge.” (Doc. No. 55 at
17.)
When filing an EEOC charge, a plaintiff must either (1) explicitly list the claim in the
EEOC charge or (2) the claim must reasonably be expected to grow out of the EEOC charge in
order to meet the filing requirement. Weigel v. Baptist Hosp. of East Tennessee, 302 F.3d 367,
379 (6th Cir. 2002). See also McDaniels v. Plymouth-Canton Cmty. Sch, 2018 WL 5734695, *5
(6th Cir. Nov. 1, 2018). Within the Sixth Circuit, this is referred to as the “expected scope of
investigation test” and requires a plaintiff to “have alleged sufficient facts in his or her EEOC
complaint to put the EEOC on notice” of other claims which may arise out of the facts supplied.
Spengler v. Worthington Cylinders, 615 F.3d 481, 490 (6th Cir.2010). “Accordingly, ‘where
facts related with respect to the charged claim would prompt the EEOC to investigate a different,
uncharged claim, the Plaintiff is not precluded from bringing suit on that claim.’ ” Id. at 490
(quoting Weigel, 302 F.3d at 380.).
The Court finds Siwik’s claims of age discrimination with respect to the Hillcrest position
could reasonably be expected to grow out of the EEOC charge. As noted supra, Siwik filed his
first EEOC charge against the Cleveland Clinic on November 1, 2015. (Doc. No. 50-8, Siwik
Depo Exh. HH.) Within this charge, Siwik’s claims related only to the interventional
cardiologist position. (Id.) This charge makes no mention of the Cleveland Clinic’s decision not
to hire him for the Hillcrest position, as it occurred after Siwik filed his EEOC charge. However,
Siwik asserted he was discriminated against due to his age in his EEOC charge and attached a
letter detailing his belief a younger candidate was selected over him. (Id.) Siwik clearly asserted

18

the Cleveland Clinic’s hiring practices were discriminatory on the basis of age in his original3
EEOC charge. See Brown v. Magna Modular Systems, Inc., 2014 WL 2986928, *3 (N.D. Ohio
July 2, 2014). It would be reasonable for the EEOC to further investigate any additional
positions in which a younger candidate was selected over Siwik at the Cleveland Clinic, given
his rejections from these positions occurred within a year of each other and involved allegations
the Cleveland Clinic was discriminating against older applicants. See EEOC v. R.G. & G.R.
Harris Funeral Homes, Inc., 884 F.3d 560, 599 (6th Cir. 2018)(“We have developed a broad
conception of the sorts of claims that can be ‘reasonably expected to grow out of the initial
charge of discrimination.’”). Accordingly, Siwik’s claims of age discrimination as they relate to
the Hillcrest position are not time-barred.
2.

National Origin Discrimination (Counts One and Five) – The Cleveland Clinic
In Counts One and Five of the Second Amended Complaint, Siwik alleges federal and

state national origin discrimination against the Cleveland Clinic pursuant to Title VII and O.R.C.
§4112.02. (Doc. No. 28 at ¶¶94-98, 117-121.) Defendant Cleveland Clinic argues it is entitled
to summary judgment in its favor with respect to these claims as they are “invalid citizenship
claims.” (Doc. No. 52 at 27.) Cleveland Clinic further asserts summary judgment is appropriate
because Siwik has “abandoned these claims in his Opposition.” (Doc. No. 56 at 1.)
Siwik does not directly address the Cleveland Clinic’s arguments in his Memorandum in
Opposition. (Doc. No. 55.) He does not dispute his national origin claims are actually invalid
citizenship claims and beyond briefly mentioning “national origin” in two locations in his brief,

3

As noted supra, on September 19, 2017, Siwik filed a second EEOC charge
against the Cleveland Clinic. (Doc. No. 50-8, Siwik Depo, Exh. NN.) Within this charge, Siwik
made allegations regarding the Hillcrest position and the Akron Children’s position. (Id.)
19

does not provide any detailed argument as to these claims. (Doc. No. 55 at 8, 18.). The Court
finds Siwik has conceded the Cleveland Clinic is entitled to summary judgment in his favor with
respect to these claims. See Brown v. VHS of Michigan, Inc., 545 Fed. App’x 368, 372 (6th Cir.
2013)(a plaintiff “is deemed to have abandoned a claim when a plaintiff fails to address it in
response to a motion for summary judgment.”). See also Flagg v. Staples the Office Superstore
East, Inc., 138 F.Supp.3d 908, 917 (N.D. Ohio Sept. 29, 2015).
Moreover, if the Court were to construe Siwik’s brief mention of his national origin
claims as an argument, the Cleveland Clinic would still be entitled to summary judgment on
these claims. Title VII makes it unlawful for an employer to “fail or refuse to hire” an individual
on the basis of national origin. 42 U.S.C. §2000e-2. Ohio law also contains such a prohibition.
O.R.C. §4112.02 Both federal and state law claims are analyzed under the same standards and
case law. Norbuta v. Loctite Corp., 1 Fed. App’x 305, 311 (6th Cir. Jan. 8, 2001). It is well
established “national origin” refers to “the country where a person was born, or more broadly, the
country from which his or her ancestors came.” Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88
(1973). It does not include citizenship. Id at 88-89. See also Wilson v. Art Van Furniture, 230
F.3d 1358 (Table), 2000 WL 1434690, *1 (6th Cir. Sept. 19, 2000). Indeed, neither Title VII or
the Ohio Civil Rights Act lists citizenship as a protected class. Occhione v. PSA Airlines, Inc.,
886 F.Supp.2d 736, 744 (S.D. Ohio Apr. 6, 2012).
Siwik believes he was not hired by the Cleveland Clinic because he is a United States
citizen, not because he is of Polish descent. (Doc. No. 50-7, Siwik Depo at Tr. 137.) As such, he
is not alleging discrimination due to his membership of a protected class. This is not to say an
American plaintiff cannot advance a claim of national origin discrimination. See Douglas v.

20

Eaton Corp., 577 Fed App’x 520, 526 (6th Cir. Aug. 20, 2014). However, as Siwik is asserting
discrimination exclusively on the basis of his United States citizenship, not his national origin,
his claim must fail.
Accordingly, the Court finds there is no material factual dispute with respect to Siwik’s
national origin discrimination claims. Therefore, the Cleveland Clinic’s motion for summary
judgment as to Counts One and Five4 is GRANTED.
3.

Age Discrimination (Counts Two and Four) – The Cleveland Clinic
In Counts Two and Four of the Second Amended Complaint, Siwik asserts federal and

state age discrimination claims against the Cleveland Clinic pursuant to 29 U.S.C §623 and
O.R.C. §4112.14. (Doc. No. 28 at ¶¶99-103, 113-116.) Defendant Cleveland Clinic argues it is
entitled to summary judgment with respect to these claims as Siwik is unable to meet his prima
facie burden under the McDonnell Douglas framework. (Doc. No. 52 at 23-27.)
Siwik argues summary judgment should be denied because he has carried his burden of
establishing a prima facie case with respect to both the interventional cardiologist and general
cardiologist positions. (Doc. No. 55 at 18.)
The Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., makes
it unlawful for an employer to “fail or refuse to hire” an individual “because of such individual’s
age[.]” 29 U.S.C. § 623(a)(1). Ohio law also prohibits age discrimination and such claims are
“analyzed under the same standards as federal claims brought under the [ADEA].” Wharton v.

4

As noted supra, national origin discrimination claims brought under Ohio law are
analyzed under the same standards and case law as federal national origin discrimination claims.
Norbuta, 1 Fed. App’x at 311. Thus, as Siwik cannot meet the burden for his federal national
origin discrimination claim (Count One), he also does not meet the burden for his state law
national origin discrimination claim (Count Five).
21

Gorman-Rupp Co., 309 F. App’x 990, 995 (6th Cir. 2009).
A claim under the ADEA may be established by either direct or circumstantial evidence
of discrimination. Minadeo v. ICI Paints, 398 F.3d 751, 763 (6th Cir. 2005), citing Rowan v.
Lockheed Martin Energy Sys., 360 F.3d 544, 547 (6th Cir. 2004). “Direct evidence is evidence
that proves the existence of a fact without requiring any inferences.” Minadeo, 398 F.3d at 763,
quoting Rowan, 360 F.3d at 547. Here, Siwik has neither alleged nor provided any direct
evidence of age discrimination. Thus, the Court’s analysis will focus on circumstantial evidence.
Circumstantial evidence “is proof that does not on its face establish discriminatory animus, but
does allow a factfinder to draw a reasonable inference that discrimination occurred.” Wexler v.
White’s Fine Furniture, 317 F.3d 564, 570 (6th Cir. 2003). See also Geiger v. Tower Auto., 579
F.3d 614, 620 (6th Cir. 2009).
When evaluating circumstantial evidence, the Court applies the evidentiary framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 668
(1973) to analyze Siwik’s ADEA claims. Under this framework, in order to establish a prima
facie case of age discrimination in the context of failure to hire, a plaintiff must show (1)
membership of a protected class (i.e. over 40 years old); (2) he applied for and was qualified for
the position; (3) he was considered for and denied the position; and (4) he was rejected in favor
of another person with similar qualifications who was substantially younger. Viergutz v. Lucent
Technologies, Inc., 375 Fed. App’x 482, 484 (6th Cir. Apr. 23, 2010). See also Coburn v.
Rockwell Automation, Inc., 238 Fed. App’x 112, 128 (6th Cir. June 29, 2007).
If the plaintiff is able to establish a prima facie case, a presumption of discrimination
arises and “the burden of production shifts to the defendant to articulate a non-discriminatory

22

reason for its action.” Burzynski v. Cohen, 264 F.3d 611, 622 (6th Cir. 2001). If defendant is
able to articulate a non-discriminatory reason, the burden shifts back to plaintiff to show the
provided reason was pretext for age discrimination. Id. A plaintiff can prove an employer’s
stated reason is pretextual by showing either: (1) the reason has no basis in fact; (2) the provided
reason was not the actual motivation for the employer’s action; or (3) the provided reason was
insufficient to motivate the employer’s action. Lefevers v. GAF Fiberglass Corp., 667 F.3d 721,
725 (6th Cir. 2012). The ultimate burden of producing sufficient evidence from which the jury
could reasonably reject an employer’s explanation and infer the employer intentionally
discriminated against them rests with the plaintiff at all times. Imwalle v. Reliance Med. Prod.,
Inc.., 515 F.3d 531, 545 (6th Cir. 2008).
Here, Siwik asserts age discrimination claims based upon the Cleveland Clinic’s failure to
hire him for two different positions. For clarity, the Court will also address each position
separately under the burden-shifting framework.
Interventional Cardiologist Position
As noted supra, the Cleveland Clinic hired Dr. Suntharos as an interventional cardiologist
in 2014. (Doc. No. 50-5, Saarel Depo at Tr. 33, 157.) Dr. Suntharos is a Thai-national and less
than 40 years of age. (Doc. No. 28 at 6.) Siwik alleges the Cleveland Clinic discriminated
against him on the basis of age by choosing to hire Dr. Suntharos instead of him. (Doc. No. 55 at
8.)
Because Siwik is 55 years old, he is a member of a protected group under the ADEA.
(See Doc. No. 28 at 1.) It is undisputed the Cleveland Clinic chose to hire a younger individual,
Dr. Suntharos, for the interventional cardiologist position. However, Siwik is unable to meet his

23

prima facie burden of showing he is qualified for the interventional cardiologist position. While
Siwik is an experienced cardiologist, he did not complete an interventional cardiology
fellowship. (Doc. No. 50-7, Siwik Depo at Tr. 130-131.) Siwik concedes these fellowships were
available to him during his training, but for various reasons he did not complete one. (Id.) The
Cleveland Clinic specifically required applicants to have one year of advanced fellowship
training in its job posting for the position. (Doc. No. 50-5, Saarel Depo, Exh. 23.) Saarel
testified the Cleveland Clinic has required its pediatric interventional cardiologists to have an
advanced fellowship training in interventional cardiology for years. (Id. at Tr. 38.) Indeed, since
1996, the Cleveland Clinic has not hired any interventionalists who have not completed this
fellowship. (Doc. No. 52-3, Declaration of Lourdes Prieto, MD.) Siwik has not offered any
evidence5 to dispute this requirement, such as other pediatric interventional cardiologists at the
Cleveland Clinic who have not completed this fellowship.
The record is clear Siwik did not meet the posted qualifications the Cleveland Clinic was
looking for when it sought to hire an interventional cardiologist. While Siwik argues a jury could
look at his resume and determine his training would “suffice,” his “subjective view of [his]
qualifications in relation to those of other applicants, without more, cannot sustain a claim of
discrimination.” Hedrick v. W. Res. Care Sys., 355 F.3d 444, 462 (6th Cir. 2004). See also

5

Siwik directs this Court’s attention to a clinical privileges application he
submitted to the Cleveland Clinic in 2013. (Doc. No. 55 at 10.) Within this application, the
Cleveland Clinic required its applicants to either have completed a fellowship in pediatric
cardiology or “other training deemed equivalent by the Department Chair” in order to be
“eligible to apply for core privileges/procedures in pediatric interventional cardiology.” (Doc.
No. 55-10 at 2.) However, this application only contains criteria for clinical privileges, not the
hiring criteria for an interventional cardiologist. Moreover, the actual posting to which Siwik
applied did not contain any language regarding equivalent training. (Doc. No. 50-5, Saarel
Depo, Exh. 23.)
24

Mitchell v. Toledo Hosp., 964 F.2d 577, 584-585 (6th Cir. 1992). Though Siwik maintains the
Cleveland Clinic should have used different selection criteria and considered the breadth of his
interventional cardiology experience, it is not this Court’s role to second-guess the facially
legitimate criteria used by the Cleveland Clinic in selecting interventional cardiologists. Somogy
v. S.E. Local Sch. Dist. Bd. of Educ., 2007 WL 2572173, *8 (N.D. Ohio Aug. 31, 2007).
Assuming, arguendo, Siwik could establish his prima facie6 case, the Cleveland Clinic
has articulated a legitimate, non-discriminatory reason for not selecting him for the interventional
cardiologist position – namely, he did not have the requisite interventional fellowship.
In response, Siwik fails to present any actual argument to establish pretext. (See Doc. No.
55 at 19-20.) Siwik references a March 2014 email (hereinafter, “the March 2014 email”) from
Dr. Prieto, in which she informed Siwik she was selecting Dr. Suntharos for several reasons, one
being he “is young and ambitious academically.” (Doc. No. 50-5 at Exh. 21.) This does not
establish pretext. See Weigel, 302 F.3d at 379 (finding an isolated remark about an employee’s
age to not demonstrate any age-related animus in the decision not to rehire). While Dr. Prieto
made a passing reference to Dr. Suntharos’ age, she also touted his academic accomplishments
(including his fellowship training), technical skills, creativity, work ethic, and clinical skills.
Indeed, Dr. Prieto specifically states in her email “I have trained many fellows over my last 17

6

The Cleveland Clinic also argues Siwik also cannot meet his prima facie burden
because the “position was not an open position for which [the Cleveland Clinic] was seeking
applicants.” (Doc. No 52 at 23.) The Cleveland Clinic asserts the interventional cardiologist ads
were made “to satisfy the labor market-testing component of Dr. Suntharos’s green card
application.” (Id.) Cleveland Clinic maintains it did not hire anyone for this spot after posting
the ad. However, the Cleveland Clinic did post an ad for a cardiologist position, to which Siwik
applied. Regardless, as the Court is finding Siwik is not qualified for the position, he cannot
establish his prima facie case under the McDonnell Douglas framework.
25

years at a cath attending here, and this guy is the best I have ever seen.” (Doc. No. 50-5 at Exh.
21.) An employer is permitted to make hiring decisions “based on its familiarity and personal
relationships with candidates.” McDaniels, 2018 WL 5734695 at *6. The March 2014 email
does not establish the Cleveland Clinic’s provided reason had “no basis in fact,” or was not
sufficient or the actual reason to motivate them to decline to hire Siwik. See Lefevers, 667 F.3d
at 725. Rather, it supports the Cleveland Clinic’s position it wanted a cardiologist who had
completed an interventional cardiology fellowship, a requirement Siwik did not meet, but Dr.
Suntharos did.
Accordingly, Siwik cannot show the Cleveland Clinic failed to hire him for the position
in favor of a younger person with similar or inferior qualifications to permit an inference of age
discrimination.
General Cardiologist Position at Hillcrest
On September 12, 2016, the Cleveland Clinic hired a general pediatric cardiologist, Dr.
Challapudi, at its Hillcrest location on September 12, 2016. (Doc. No. 50-5, Saarel Depo at Tr.
152.) Neither party disputes Siwik is qualified for a position as a general cardiologist. (Doc. No.
52 at 25-27; Doc. No. 55 at 5.) What is in dispute is whether Siwik actually applied for this
position. The Cleveland Clinic argues Siwik “never formally applied,” having instead
“informally expressed interest in the position by e-mailing Dr. Saarel.” (Doc. No. 52 at 25.)
Siwik maintains he contacted Saarel as soon as he became aware of the position and before any
hiring decisions were made.7 (Doc. No. 55 at 19.)

7

Siwik also asserts he had “repeatedly notified the Clinic over a period of years,
including reaching out to Dr. Prieto, Dr. Piedimonte and Dr. Saarel, that he was interested in any
and all pediatric cardiology positions at the Clinic.” (Doc. No. 55 at 19.) However, this does not
26

Upon review of the record, the Court finds Siwik did apply for the position. Siwik saw an
ad for this position in Congenital Cardiology Today, a cardiology journal. (Doc. No. 50-7, Siwik
Depo at Tr. 152-153.) Upon seeing this ad, Siwik “immediately contacted the contact
information” contained within this ad. (Doc. No. 50-7, Siwik Depo at Tr. 153.) Email records
confirm Siwik emailed Victoria Thomas, an administrative assistant at the Cleveland Clinic, on
July 1, 2016, with his CV, requesting she forward it to Saarel. (Doc. No. 50-8, Siwik Depo Exh.
LL.) Moreover, Siwik emailed Saarel directly, specifically stating “I’d like to be considered for
the full-time cardiology position.” (Doc. No. 50-8, Siwik Depo, Exh. KK.) While Siwik did not
submit an application through the Cleveland Clinic’s website, the Cleveland Clinic solicited
applications through different modalities, including an ad in a cardiology journal, to which Siwik
responded. As Siwik’s burden to establish a prima facie case is not an onerous one, the Court
concludes he has satisfied the application requirement. See Skrjanc v. Great Lakes Power Serv.
Co., 272 F.3d 309, 315 (6th Cir. 2001).
However, Siwik has not provided any evidence to support the final prong in his prima
facie case, that he was rejected in favor of a younger person with similar or inferior
qualifications. George v. Youngstown State Univ., 2019 WL 118601, *7 (N.D. Ohio Jan. 7,
2019). Siwik summarily asserts he has “made out a prima facie claim for discrimination related
to the pediatric cardiologist position at Hillcrest.” (Doc. No. 55 at 19.) However, Siwik has
provided no argument or evidence regarding Dr. Challapudi’s age or qualifications. Indeed,

constitute applying for a position in the context of his prima facie case. See Talbot v. Cuyahoga
Cty. Bd of Mental Retardation & Dev. Disabilities, 2009 WL 312941, *9 (N.D. Ohio Feb. 6,
2009)(“previously expressed interest in the same or similar position is not sufficient when a
formal application process exists.”).
27

neither party had provided the Court with Dr. Challapudi’s age, and thus no inference of age
discrimination has been created. Moreover, Siwik has offered no evidence to suggest Dr.
Challaphudi was not qualified or his qualifications were inferior to his in some respect.
Assuming, arguendo, Siwik established a prima facie case, the Cleveland Clinic has
articulated several legitimate, non-discriminatory reasons for not selecting him for the general
cardiologist position at Hillcrest. Saarel explained she declined to hire Siwik for the Hillcrest
position because (1) she was under time constraints to fill the position; (2) she already identified
a candidate who the Cleveland Clinic had previously interviewed and had a competing job offer;
and (3) she was unable to schedule additional interviews due to her travel schedule. (Doc. No.
52 at 26.)
Siwik fails to present sufficient evidence tending to show the Cleveland Clinic’s proffered
reasons for not hiring him were pretext for age discrimination. Siwik suggests that, because
Saarel did not provide these same reasons to Dr. Zahka during her conversation with him, this is
“evidence of pretext.” (Doc. No. 55 at 21) However, Saaral was not required to report her hiring
rationales to Dr. Zahka, and Siwik has offered no evidence Saaral has indicated, at any point, that
the decision was based upon Siwik’s age. Siwik is unable to establish the Cleveland Clinic’s
provided reasons had “no basis in fact” or were insufficient to explain why the Cleveland Clinic
did not hire him. See Lefevers , 667 F.3d at 725.
Siwik also asserts there is “no evidence in the record that any ‘time constraints’ existed.”
(Doc. No. 55 at 21.) Siwik contends if time constraints were truly an issue, the Cleveland Clinic
should have hired him, an experienced cardiologist already licensed in Ohio. (Id.) While this
establishes Siwik was qualified for the position for the purposes of establishing a prima facie

28

case, it does not show the Cleveland Clinic’s reason for not hiring him was pretextual. Saarel
explained to Siwik she had “already had a candidate I[sic] in the pipeline when [he] first
contacted [her] about the position.” (Doc. No. 50-6, Saarel Depo, Exh. 34.) The Cleveland
Clinic was free to chose a candidate they had already vetted and interviewed, as long as the
decision was not based on an impermissible factor, such as age. Mansfield v. City of
Murfreesboro, 706 F. App’x 231, 239 (6th Cir. 2017) (“[E]mployers are generally free to choose
among qualified candidates in making their employment decisions.”) (internal quotation marks
omitted). Siwik has not produced8 any evidence connecting his non-hire at Hillcrest to his age.
Finally, Siwik argues “also without legal justification is Dr. Saarel’s suggestion that she
did not hire Dr. Siwik because he seemed ‘angry’ with the Clinic.” (Doc. No. 55 at 21.)
However, neither the Cleveland Clinic nor Saarel have asserted this was one of the reasons Siwik
was not hired at Hillcrest. (See Doc. No. 52 at 26.) Saarel testified during her August 24, 2016
phone conversation with Siwik, she was struck by how “strong [Siwik’s] anger and bitterness
was towards the Cleveland Clinic” during the conversation. (Doc. No. 50-5, Saarel Depo at Tr.
176.) However, Saarel had already offered the Hillcrest position to Dr. Challapudi prior to July
14, 2016, over a month before this conversation. (Doc. No. 50-6, Saarel Depo, Exh. 34.) Thus,
any anger Siwik had conveyed to Saarel occurred after the hiring decision had already been
made.
Accordingly, Siwik has failed to meet his burden of establishing a material fact dispute
with respect to his age discrimination claims. Therefore, the Cleveland Clinic’s motion for

8

The Court notes the bulk of Siwik’s pretext arguments pertain to his claims the
Cleveland Clinic retaliated against him for his EEOC charge. (See Doc. No. 55 at 21.) This is a
separate claim with a distinct legal frame work and it will be addressed at greater length infra.
29

summary judgment as to Counts Two and Four is GRANTED.9
4.

Retaliation (Counts Three and Six) – The Cleveland Clinic
In Counts Three and Six of the Second Amended Complaint, Siwik alleges federal and

state retaliation claims against the Cleveland Clinic pursuant to 29 U.S.C §623 and O.R.C.
§4112.02, respectively. (Doc. No. 28 at ¶¶104-112, 122-128.) Defendant Cleveland Clinic
argues it is entitled to summary judgment in their favor with respect to these claims as Siwik is
unable10 to meet his prima facie burden under the McDonnell Douglas framework. (Doc. No. 52
at 28-30.) Siwik argues summary judgment should be denied because he has carried his burden
of establishing a prima facie case with respect to both the position at Hillcrest and Akron
Children’s Hospital. (Doc. No. 55 at 22-23.)
The ADEA and Title VII both prohibit employers from retaliating against a person for
opposing or reporting discrimination. 29 U.S.C. § 623(d), 42 U.S.C. §2000e-3(a). Ohio law
contains a similar prohibition. Ohio Rev. Code § 4112.02(I). To establish a prima facie case of

9

As noted supra, age discrimination claims brought under Ohio law are “analyzed under
the same standards as federal claims brought under the [ADEA].” Wharton v. Gorman-Rupp Co.,
309 F. App’x 990, 995 (6th Cir. 2009). Thus, as Siwik cannot meet the burden for his federal
age discrimination claim (Count Two), he also does not meet the burden for his state law age
discrimination claim (Count Four).
10

The Cleveland Clinic also argues Siwik’s federal retaliation claims which involve the
Hillcrest position are time-barred. (Doc. No. 52 at 28.) Because the Court has found Siwik’s
claims of age discrimination are timely, the Court also finds Siwik’s Hillcrest retaliation claims,
which stem from the 2015 EEOC charge alleging age discrimination, are also timely. Indeed,
the expected scope of investigation test is most often used for retaliation claims because
“retaliation naturally grows out of any underlying substantive discrimination charge.” Duggins v.
Steak ‘N Shake, Inc., 195 F.3d 828, 833 (6th Cir. 1999). See also Watson v. Ohio Dep’t of Rehab.
& Corr., 690 F. App’x 885, 890 (6th Cir. 2017)(citing Weigel, 302 F.3d at 380.); George, 2019
WL 118601 at *6.
30

retaliation under either federal or Ohio law, a plaintiff must show (1) he engaged in a protected
activity, (2) the defendant was aware plaintiff had engaged in such activity, (3) defendant took an
adverse employment action against plaintiff, and (4) a causal connection between the protected
activity and the defendant’s adverse action. Blizzard v. Marion Tech. Coll., 698 F.3d 275, 288
(6th Cir. 2012). See also Grant v. Metro. Gov’t of Nashville and Davidson Cty, 2018 WL
6787539, *1 (6th Cir. Dec. 26, 2018). A plaintiff cannot “invoke the protections of the Act by
making a vague charge of discrimination.” Blizzard, 698 F.3d at 288. However, the task of
establishing a prima facie case in a retaliation action is not an onerous burden, but one which can
be easily met. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
Once a plaintiff has established a prima facie case, the burden shifts to the defendant to
articulate a legitimate, non discriminatory reason for the adverse employment action. Nguyen,
229 F.3d at 562. The plaintiff must then show the defendant’s proffered reason is pretextual and
“the real reason for the employer’s action was intentional retaliation.” Imwalle, 515 F.3d at 544.
General Cardiologist Position at Hillcrest
The parties dispute only the fourth element of the prima facie case of retaliation –
whether there is a causal connection between the Cleveland Clinic’s decision not to hire Siwik
and the 2015 EEOC charge. (Doc. No. 52 at 28-29; Doc. No. 55 at 22.) Siwik argues
statements11 Dr. Saarel made to Dr. Zahka and himself regarding his EEOC charge demonstrates

11

The Cleveland Clinic asserts portions of the evidence Siwik relies upon are
inadmissable hearsay. (Doc. No. 52 at 30.) A court cannot consider hearsay evidence when
ruling on a motion for summary judgment. See Wiley v. United States, 20 F.3d 222, 226 (6th
Cir. 1994) (“[H]earsay evidence cannot be considered on a motion for summary judgment.”).
See also Pickens v. MetalTek International, Inc., 2018 WL 6567794, Fn 3 (N.D. Ohio Dec. 13,
2018). However, if a statement falls within an exception pursuant to Federal Rule of Evidence
801, it is admissible and a court may consider it when evaluating a motion for summary
31

causality. (Doc. No. 55 at 22.) The Cleveland Clinic argues no causal connection has been
established. (Doc. No. 52 at 29, 30.)
The Court finds an issue of material fact exists as to whether there was a causal
connection between Siwik’s protected activity (i.e., the EEOC charge) and the Cleveland Clinic’s
decision not to hire him for the Hillcrest position. Around the time Siwik applied for the position

judgement. See Bradley v. Rhema-Northwest Operating, LLC, 2017 WL 4804419, *2 (6th Cir.
Oct. 3, 2017).
Here, the Cleveland Clinic maintains Siwik’s testimony that Dr. Zahka told him Saarel
stated Siwik’s “EEOC complaint would likely be a deal-breaker with regards to employment at
the Cleveland Clinic” is inadmissable hearsay. (Doc. No. 52 at 30, Doc. No. 50-7, Siwik Depo
at Tr. 168.) Siwik argues this statement is admissible as a party opponent admission under Fed.
R. Evid. 801(d)(2)(D). (Doc. No. 55 at 23.) This rule provides statements “offered against an
opposing party” are not hearsay if “made by the party's agent or employee on a matter within the
scope of that relationship and while it existed.” Fed. R. Evid. 801(d)(2). The relevant inquiry is
whether the statement “concerns a matter within the scope of the declarant's employment—there
is no requirement that a declarant be directly involved in the adverse employment action.” Back
v. Nestle USA, Inc., 694 F.3d 571, 577 (6th Cir. 2012).
The facts presented here are on all fours with the circumstances in Bradley v. RhemaNorthwest Operating, LLC, 2017 WL 4804419 (6th Cir. Oct. 3, 2017). In Bradley, a employee
asserted age discrimination claims against her employer. To support her claims, the employee
presented her own testimony that she was told by other employees of an administrator’s
statements regarding his desire to “get rid of older people in the company.” Id. at *2. The
employee was not present when the administrator made these statements. Id. The Sixth Circuit
concluded the employee’s testimony was double hearsay and rejected the argument this
testimony was an opposing party statement pursuant to Fed. R. Evid. 801(d)(2). Id. The Sixth
Circuit reasoned while it may have been within the scope of the administrator’s employment to
fire personnel, it was not within the scope of employment of those individuals who relayed this
information to the employee. Id. at *2-3. The Sixth Circuit concluded it was proper to exclude
these statements as inadmissable hearsay. Id. at *3.
Here, while the decision of whether or not to hire Siwik was within the scope of Saarel’s
employment with the Cleveland Clinic, Siwik has offered no evidence cardiologist hiring or
personnel decisions were in any way within the scope of Dr. Zahka’s employment. Thus, the
Court concludes Siwik’s testimony as to Dr. Zahka’s statements are inadmissable hearsay and
will not consider it when ruling on the motions for summary judgment.
32

in July 2016, Saaral spoke with Dr. Zahka, a cardiologist at the Cleveland Clinic, regarding
hiring Siwik for the Hillcrest position. (Doc. No. 50-5, Saarel Depo at Tr. 169.) What transpired
during the conversation between Saarel and Dr. Zahka is in great dispute. Within a sworn
affidavit,12 Dr. Zahka asserts Saaral indicated she was “not open to hiring [Siwik] and that his
claims against the Cleveland Clinic were an issue.” (Doc. No. 55-11, Declaration of Kenneth
Zahka, M.D.) Moreover, Siwik testified Saarel told13 him his candidacy for the position was a
“nonstarter” due to his EEOC charge. (Doc. No. 50-7, Siwik Depo at Tr. 178.) A causal
connection is established when the plaintiff “proffer[s] evidence sufficient to raise the inference
that her protected activity was the likely reason for the adverse action.” DePalma v. Sec’y of Air
Force, 2018 WL 5304814, *6 (6th Cir. Oct. 25, 2018), quoting Upshaw v. Ford Motor Co., 576
F.3d 576, 588 (6th Cir. 2009). Here, Siwik has presented evidence which, if believed by a
factfinder, raises such an inference.
The Cleveland Clinic argues there is “substantial evidence to undermine causality.”
(Doc. No. 52 at 29.) In support of this argument, the Cleveland Clinic notes: (1) the seven month
gap between the EEOC charge and Siwik’s rejection; (2) Saarel was not employed by the
Cleveland Clinic at the time of the circumstances giving rise to the EEOC charge; and (3) Saaral
contacted Akron Children’s, informing them Siwik was looking for a position. (Id.) However,

12

While the Cleveland Clinic admonishes this affidavit for being “vague,” it does
not argue it is inadmissable hearsay. (Doc. No. 56 at 8.)
13

Because these statements were allegedly made by Dr. Saarel concerning a matter
within the scope of her employment, they would plainly fall under Federal Rule of Evidence
801(d)(2)(D) as being outside the definition of hearsay. See Fed. R. Evid. 80l(d)(2)(D) (“A
statement that meets the following conditions is not hearsay: . . . [t]he statement is offered
against an opposing party and: . . . was made by the party’s agent or employee on a matter within
the scope of that relationship and while it existed . . . ”).
33

while it had been seven months since Siwik filed his EEOC charge, the charge remained pending
at the time of his application for the Hillcrest position. Moreover, Saarel stepped into her role at
the Cleveland Clinic in October 2015, which was prior to Siwik filing his November 1, 2015
EEOC charge. Thus, even if Saarel was not present for the circumstances giving rise to the
charge, she was the chair of pediatric cardiology when it was filed. (Doc. No. 50-5, Saarel Depo.
at Tr. 21, 34; Doc. No. 50-8, Siwik Depo, Exh. HH.) While the Cleveland Clinic’s arguments
attack the weight of Siwik’s allegations, this is an issue for a factfinder to consider, not for a
summary judgment determination.
The Court finds the Cleveland Clinic has provided a legitimate, nondiscriminatory reason
for its failure to hire Siwik for the Hillcrest position. Saarel explained she declined to hire Siwik
for the Hillcrest position because (1) she was under time constraints to fill the position; (2) she
had already identified a candidate who was a finalist for a similar position, who had a competing
job offer; and (3) she was unable to schedule additional interviews due to her travel schedule.
(Doc. No. 52 at 26.)
Therefore, Siwik must show these proferred reasons (1) have no basis in fact; (2) did not
actually motivate the adverse action; or (3) were insufficient to explain the adverse action. See
Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 590 (6th Cir. 2014). A plaintiff must produce
“sufficient evidence from which the jury could reasonably reject [the defendant’s] explanation
and infer that the defendant[ ] ... did not honestly believe in the proffered nondiscriminatory
reason for its adverse employment action.” Braithwaite v. Timken Co., 258 F.3d 488, 493–94
(6th Cir. 2001)(internal citations omitted).
The Court finds Siwik has presented sufficient evidence tending to show the Cleveland

34

Clinic’s proffered reasons for not hiring him were pretext14 for retaliation. Siwik testified that,
during an August 24, 2016 phone conversation, Saarel told him his candidacy for the position
was a “nonstarter” due to his EEOC charge. (Doc. No. 50-7, Siwik Depo at Tr. 178.) Moreover,
the sworn affidavit of Dr. Zahka contends Saarel told Dr. Zahka she was “not open to hiring
[Siwik] and that his claims against the Cleveland clinic were an issue.” (Doc. No. 55-11,
Declaration of Kenneth Zahka, M.D.)
The Cleveland Clinic argues15 “Dr. Zahka’s vague affidavit is not probative of pretext.”
(Doc. No. 56 at 8.) Dr. Zahka’s affidavit, in pertinent part, provides as follows:
Sometime after Dr. Saarel become the Chairman of the Department of
Pediatric Cardiology at the Cleveland Clinic in 2015, I spoke to her and
asked her to consider hiring Dr. Siwik to work for the Cleveland Clinic. She
communicated to me that she was not open to hiring him and that his claims
against the Cleveland Clinic were an issue. I do not recall her exact words.
Other than referring to Dr. Siwik’s claims against the Cleveland Clinic, I do
not recall her mentioning his professional qualifications or any other reasons
she would not hire him. I told Dr. Siwik about my conversation with Dr.
Saarel shortly after it occurred.
(Doc. No. 55-11, Declaration of Kenneth Zahka, M.D.) The Cleveland Clinic observes this
affidavit does not provide 1) the date of the conversation, 2) whether the discussion was in
regards to the Hillcrest position, 3) any specific reference to an EEOC claim or other legal claim,
or 4) an allegation Dr. Saarel refused to hire Siwik because of his EEOC claim. (Doc. No. 56 at

14

Siwik has offered other arguments of pretext, including Dr. Saarel’s “changing
explanations,” the lack of evidence that any time constraints existed, and Siwik’s apparent anger.
(Doc. No. 55 at 21.) However, the Court does not find these persuasive, as discussed supra.
15

The Cleveland Clinic does not argue this affidavit is inadmissable hearsay. (Doc.
No. 56 at 8.) Arguments not raised are deemed waived. Giesse v. Sec'y of Dept. of Health &
Human Servs., 522 F.3d 697, 705 (6th Cir. 2008) (citing Farm Labor Org. Comm. v. Ohio State
Highway Patrol, 308 F.3d 523, 544 n. 8 (6th Cir. 2002) (“It is well established that an issue not
raised in a party's briefs may be deemed waived.”).
35

8, 9.) The Court is not persuaded by these arguments. While the affidavit does not explicitly list
the date or which position Saarel and Dr. Zahka discussed, Saarel’s own testimony establishes
Dr. Zahka approached Saarel about hiring Siwik for the Hillcrest position in July 2016. (Doc.
No. 50-5, Saarel Depo at Tr. 169.) Moreover, while the affidavit references “claims,” rather than
EEOC charges, the Court finds the suggestion this could have been “just references to Plaintiff’s
generalized unhappiness with” the Cleveland Clinic dubious. (See Doc. No. 56 at 9.)
Furthermore, Siwik testified Saarel told him his EEOC charges were an issue during an
August 24, 2016 phone call. (Doc. No. 50-7, Siwik Depo at Tr. 178.) The Cleveland Clinic
attempts to discredit this testimony, noting an email sent by Saarel the same date did not
reference the EEOC charge. (Doc. No. 56 at 10, Doc. No. 50-7, Siwik Depo at Tr. 177-178.)
However, this email does not disprove Siwik’s assertion Saarel had discussed his EEOC charge
with him over the phone.
When viewing the evidence in a light most favorable to Siwik, a jury could conclude the
Cleveland Clinic did not want to consider Siwik for the Hillcrest position due to his 2015 EEOC
charge, especially if the jury were to believe Siwik’s assertion Saaral had told him as much.
Thus, whether the Cleveland Clinic retaliated against Siwik is a fact question to be decided at
trial. Therefore, on this basis alone, summary judgment is not appropriate.
Position at Akron Children’s Hospital
With regard to the position at Akron Children’s Hospital, the parties dispute the third
element of the prima facie case of retaliation – whether Saarel informing Lane of Siwik’s lawsuit
constitutes an “adverse employment action.” (Doc. No. 52 at 31; Doc. No. 55 at 23.) Siwik
argues “Saarel took an adverse action when she telephoned Dr. Lane and told him Dr. Siwik was

36

suing the Clinic.” (Doc. No. 55 at 23.) The Cleveland Clinic maintains Saarel informing Lane of
the lawsuit was “benign” and made during “a social conversation between colleagues . . .
unrelated to [Siwik’s Akron Children’s Hospital] candidacy.” (Doc. No. 52 at 31.)
A plaintiff in a Title VII action may bring suit against a former16 employer for
postemployment actions allegedly taken in retaliation for filing of an EEOC claim. Robinson v.
Shell Oil Co., 519 U.S. 337, 341-345 (1997). In order to establish an “adverse action,” a plaintiff
“must show that a reasonable employee would have found the challenged action materially
adverse, ‘which in this context means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.’” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006)(quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006).). A
former employer providing a negative job reference to a prospective employer can constitute an
adverse employment action. James v. Metro. Gov’t of Nashville, 243 Fed. App’x 74, Fn 1 (6th
Cir. 2007). See also Abbott v. Crown Motor Co., 348 F.3d 537, 543 (6th Cir.2003); Taylor v.
Geithner, 703 F.3d 328, 339 (6th Cir. 2013); Bryant v. Central Cmty Health Board, 2017 WL
1164345, *5 (S.D. Ohio Mar. 29, 2017)(finding a former employer’s email to a current employer
regarding a plaintiff’s work abilities constitutes an adverse action).
The Court finds Siwik has established the existence of an adverse employment action.
Siwik filed his lawsuit against the Cleveland Clinic on May 22, 2017. (Doc. No. 1.) In late May
or early June 2017, Sarrel told Lane that Siwik had filed a lawsuit against the Cleveland Clinic.
(Doc. No. 50-3, Lane Depo at Tr. 50.) Following this conversation, Lane informed the executive

16

The Supreme Court has not specifically defined “former employer” or “former
employee.” However, it has unequivocally held “former employees are included within §
704(a)'s [of Title VII] coverage.” Robinson, 519 U.S. at 346.
37

vice president and the chief medical officer of Akron Children’s Hospital of the lawsuit. (Id. at
Tr.53.) According to Lane, he notified these individuals because Akron Children’s was “in the
process of considering Dr. Siwik for a position” and he did not know if this information was
“relevant or not.” (Id. at 54.)
The Cleveland Clinic characterizes Saarel’s remark as a “brief mention” made during a
social conversation between Lane and Saarel. (Doc. No. 52 at 31.) According to Saaral, she did
not suggest or imply Akron Children’s should not hire Siwik and the conversation was not
regarding his candidacy with Akron Children’s. (Doc. No. 50-5, Saarel Depo at Tr. 270.)
However, the Supreme Court has recognized actions typically construed as nonmaterial could
rise to the level of an adverse employment action when considered in context. See Burlington N.
& Santa Fe Ry. Co., 548 U.S. at 69. This conversation occurred just after Siwik had filed his
lawsuit against the Cleveland Clinic and during the time in which Akron Children’s was
considering him for position. Moreover, the Cleveland Clinic and Akron Children’s Hospital had
some degree of a collaborative relationship with pediatric cardiology cases in the area. (Doc. No.
50-5, Saarel Depo at Tr. 240-242.) Following this conversation, Lane informed the executive
vice president and the chief medical officer of Akron Children’s of the lawsuit. (Doc. No. 50-3,
Lane Depo at Tr. 53.) Lane notified these individuals because Akron Children’s was “in the
process of considering Dr. Siwik for a position” and he was not certain if this information was
“relevant or not.” (Id. at Tr. 54.) Taking all of this into context, a reasonable employee could
view Saarel’s conversation with Lane as an adverse action. Accordingly, Siwik has met his
burden as to this element of his prima facie case. See White v. Adena Health Sys., 2018 WL
3377087, *8 (S.D. Ohio July 11, 2018)(a representative from a former employer informing a

38

prospective employer about a lawsuit qualifies as a negative job reference and adverse action).17
The Court also finds Siwik has met his burden as to the fourth element18 of his prima
facie case – a causal connection existed between Siwik’s protected activity (i.e., his EEOC
charge and related lawsuit) and the Cleveland Clinic’s adverse action (i.e. Saarel’s decision to
mention the lawsuit to Lane). In May 2017, Saarel became aware of Siwik’s lawsuit against the
Cleveland Clinic. (Doc. No. 50-5, Saarel Depo at Tr. 235, Doc. No. 50-6, Saarel Depo, Exh. 39.)
Shortly thereafter, Saarel told Lane about Siwik’s lawsuit. (Doc. No. 50-3, Lane Depo at Tr. 50.)
17

The Cleveland Clinic references two cases which have reached the opposite
conclusion – Lamarch v. Tishman Speyer Prop., L.P, 2006 U.S. Dist. LEXIS 101813 (E.D.N.Y
July 12, 2006) and Matthews v. Wisconsin Energy Corp, 534 F.3d 547, 559 (7th Cir. 2008).
(Doc. No. 56 at 13, Doc. No. 52 at 31.) However, neither of these cases are binding precedent
upon this Court. The Cleveland Clinic has not directed this Court to, nor has the Court located,
any binding authority holding a mention of a EEOC lawsuit cannot be considered an adverse
employment action in any context.
18

The Cleveland Clinic argues in order to establish his prima facie case, Siwik must
show a causal connection existed between Saarel’s comments to Lane and Akron Children’s
decision not to hire Siwik for a cardiologist position. (Doc. No. 52 at 32, Doc. No. 56 at 13,14.)
The Cleveland Clinic directs this Court’s attention to Nichols v. Snow, 2006 WL 167708, *18
(M.D. Tenn. Jan. 23, 2006) in support. In Nichols, the Middle District of Tennessee held in
order to establish a prima facie case of retaliation because of a negative job reference, a plaintiff
must “raise an inference” the negative job reference contributed to the prospective employer’s
decision not to hire plaintiff. Id.
However, this is a misinterpretation of the law. Indeed, in Abbott v. Crown Motor Co.,
Inc., the Sixth Circuit held to establish a causal connection, a plaintiff “must produce sufficient
evidence from which one could draw an inference that the employer would not have taken the
adverse action against the plaintiff had the plaintiff not engaged in activity that Title VII
protects.” 348 F.3d 537, 543 (6th Cir. 2003). In Abbott, the Sixth Circuit found a former
employer’s poor job reference constituted an adverse employment action, and such job reference
created “a genuine issue of material fact as to whether [the former employer] would have given
plaintiff such an unfavorable job recommendation had plaintiff not engaged in protected
activity.” Id at 544.. The Southern District of Ohio recently used this same approach in White v.
Adena Health Sys., 2018 WL 3377087, *8 (S.D. Ohio July 11, 2018), finding a plaintiff must
show a former employer “would not have given negative job references [to a prospective
employer] in the absence of protected activity.” The Court notes Siwik has failed to address this
issue entirely.
39

This occured during the same time frame Akron Children’s was considering Siwik for a position
and Saarel was aware Siwik was seeking employment in Northeast Ohio. (Doc. No. 50-3, Lane
Depo at Tr. 63, 72, Exh. 3, 4.) This evidence raises an inference that but for Siwik’s lawsuit and
EEOC charges against the Cleveland Clinic, Saarel would not have mentioned this protected
activity to Lane. See Taylor v. Geithner, 703 F.3d 328, 339-340 (6th Cir. 2013)(An employee
established the causation element of a prima facie case of retaliation, where, at the same time and
shortly after the employee filed discrimination-based complaints, she was rejected from other
positions within her employer and, when requesting a recommendation from her unit supervisor,
was given a negative reference.).
The Cleveland Clinic argues19 Saarel had no retaliatory intent, as she gave Siwik a
“positive reference when she referred him to Dr. Lane for” opportunities at Akron Children’s in
November 2016. (Doc. No. 56 at 13, Doc. No. 50-3, Lane Depo at Tr. 63, 72, Exh. 3, 4.)
However, this fact does not negate evidence that Saarel informed Lane of the lawsuit within
weeks of becoming aware of it. Moreover, at the time Saarel had referred Siwik to Akron
Children’s for employment opportunities, Siwik had not yet filed his lawsuit against the
Cleveland Clinic and his EEOC charge remained pending. In sum, viewing the evidence in a
light most favorable to Siwik, there is enough evidence to satisfy the low prima facie burden of
retaliation. See Taylor, 703 F.3d at 339.
19

The Cleveland Clinic also presents a detailed argument regarding hearsay
evidence. (Doc. No. 56 at 14.) Specifically, the Cleveland Clinic maintains Siwik cannot show
a causal connection existed because the only evidence Siwik has to show that Akron Children’s
set aside Siwik’s candidacy due to Saarel’s comments, is a conversation which allegedly
occurred between Lane and Siwik. (Id. at 14-15.) The Court need not determine whether or not
this evidence constitutes inadmissable hearsay because, as discussed supra, Siwik does not need
to show Akron Children’s did not hire him due to Saarel’s comments in order to meet his prima
facie burden.
40

However, the Cleveland Clinic has provided a legitimate, nondiscriminatory reason for
Saarel’s reason for discussing the lawsuit. Saarel explained this “neutral mention of the CCF
lawsuit” was simply “a fact of mutual interest during a social conversation that was unrelated to”
Siwik’s candidacy at Akron Children’s Hospital. (Doc. No. 56 at 13; Doc. No. 50-5, Saarel Depo
at Tr. 270.)
The Court finds Siwik has presented sufficient evidence tending to show the Cleveland
Clinic’s proffered reasons for Saarel mentioning the lawsuit was a pretext20 for retaliation.
Shortly after receiving Siwik’s complaint, Saarel called Lane to inform him of the lawsuit. (Doc.
No. 50-5, Saarel Depo at Tr. 270, Doc. No. 50-3, Lane Depo at Tr. 50.) At that time, the
Cleveland Clinic and Akron Children “had been in a collaboration for [their] heart center for
several years” and were “working together for pediatric heart care.” (Doc. No. 50-5, Saarel Depo
at Tr. 240-242.) Moreover, Akron Children’s would often bring physicians it was considering
hiring to the Cleveland Clinic’s clinical surgical conference. (Id. at Tr. 248.) Furthermore,
following this phone call, Lane notified the leadership at Akron Children’s of the lawsuit
because they were considering Siwik for a position. (Doc. No. 50-3, Lane Depo at Tr. 53.)
While this evidence does not prove Saarel informed Lane about the lawsuit with the intent to
retaliate against him and hurt his employment prospects at Akron Children’s, a jury could
reasonably reject Saarel’s explanation that her comment was simply an innocent conversation
between colleagues, and instead infer Saarel was attempting to influence Akron Children’s to not
hire Siwik. See Braithwaite, 258 F.3d at 493–94 (a plaintiff must produce “sufficient evidence

20

Siwik has offered other arguments of pretext, including Dr. Saarel’s “changing
explanations,” the lack of evidence any time constraints existed, and Siwik’s apparent anger.
(Doc. No. 55 at 21.) However, the Court does not find these persuasive, as discussed supra.
41

from which the jury could reasonably reject [the defendant’s] explanation and infer that the
defendant[ ] . . . did not honestly believe in the proffered nondiscriminatory reason for its adverse
employment action.”)(internal citations omitted).
In sum, when viewing the evidence in a light most favorable to Siwik, a jury could
conclude the Cleveland Clinic, through Saarel’s comments to Lane, retaliated against him for his
2015 EEOC charge and associated lawsuit. Thus, whether the Cleveland Clinic retaliated against
Siwik is a fact question for a jury to decide and summary judgment is not appropriate.
Accordingly, Siwik has shown a material fact dispute with respect to his retaliation
claims against the Cleveland Clinic. Therefore, the Cleveland Clinic’s request for summary
judgment on Counts Three and Six is DENIED.21
4.

Aiding and Abetting (Count Eight) – The Cleveland Clinic & Dr. Saarel

Lastly, both the Cleveland Clinic and Saarel22 ask for summary judgment with respect to
Siwik’s aiding and abetting claim. (Doc. No. 52 at 33-34.) Ohio law makes it unlawful “[f]or
any person to aid, abet, incite, compel, or coerce the doing of any act declared by this section to
be an unlawful discriminatory practice, to obstruct or prevent any person from complying with
this chapter or any order issued under it, or to attempt directly or indirectly to commit any act
declared by this section to be an unlawful discriminatory practice.” O.R.C. § 4112.02(J).
Because the Court has concluded there is a genuine issue of material fact with respect to
21

As noted supra, retaliation claims brought under Ohio law are subject to the same
burden-shifting framework as federal retaliation claims. Blizzard v. Marion Tech. Coll., 698
F.3d 275, 288 (6th Cir. 2012). Thus, as Siwik’s federal retaliation claim (Count Three) survives
summary judgment, so must his state law retaliation claim (Count Six).
22

Count Eight is the only claim which Siwik has raised against Dr. Saarel. (See Doc.

No. 28.)
42

Siwik’s underlying retaliation claims against the Cleveland Clinic, it is not appropriate for the
Court to grant summary judgment this claim as to Saarel.23 Indeed, Siwik has brought forth
sufficient evidence to support the proposition Saarel was involved with the alleged retaliation
against him by the Cleveland Clinic. See Oster v. Huntington Bancshares, Inc., 2017 WL
2215462, *22 (S.D. Ohio May 19, 2017). Accordingly, Defendant Saarel’s request for summary
judgment on Count Eight is DENIED.
B.

Akron Children’s Hospital and Dr. John Lane (Counts Three, Seven, Eight)
Siwik and the Akron Children’s Defendants have filed cross-motions for summary

judgment regarding the merits of Siwik’s claims. (Doc. Nos. 51, 50.)
1.

Retaliation (Counts Three and Seven) – Akron Children’s Hospital
In Counts Three and Seven of the Second Amended Complaint, Siwik alleges federal and

state retaliation claims against Akron Children’s. (Doc. No. 28 at ¶¶104-112, 129-133.)
Defendant Akron Children’s Hospital argues it is entitled to summary judgment its favor with
respect to these claims as Siwik is unable to meet his prima facie burden under the McDonnell
Douglas framework. (Doc. No. 50-1 at 18.) Conversely, Siwik argues summary judgment
should be granted in his favor because the evidence proves Akron Children’s retaliated against
him for participating in a protected activity. (Doc. No. 51-1 at 15-21.)

23

While the claim as to Saarel survives, the Cleveland Clinic cannot, as a matter of law,
aid or abet itself in retaliating against Siwik. Sampson v. Sisters of Mercy of Williard, Ohio,
2015 WL 3953053, *10 (N.D. Ohio June 29, 2015); Oster, 2017 WL 2215462 at *22 (“a
corporate entity cannot aid and abet itself in employment discrimination”). Thus, Count Eight as
to the Cleveland Clinic is dismissed.
43

Absent direct24 evidence of retaliation, a plaintiff must establish a prima facie case using
the McDonnell Douglas framework, as detailed above. Grant, 2018 WL 6787539 at *1. Once a
plaintiff has established a prima facie case, the burden then shifts to the defendant to articulate a
legitimate, non discriminatory reason for the adverse employment action. Nguyen, 229 F.3d at
562. The plaintiff must then show the defendant’s proffered reason pretextual, and “the real
reason for the employer’s action was intentional retaliation.” Imwalle, 515 F.3d at 544.
The first three prongs of the prima facie case with respect to this position are not in
dispute. Siwik engaged in a protected activity25 when filing his EEOC charge and related
discrimination lawsuit against the Cleveland Clinic. Akron Children’s Hospital and Lane were
aware of the lawsuit. (Doc. No. 50-3, Lane Depo at Tr. 50.) Siwik subsequently suffered and
adverse employment action when Akron Children’s declined to offer him a position. (Id. at Tr.
43.)
The Court finds an issue of material fact exists as to the fourth element of the prima facie
case – whether there was a causal connection between Siwik’s protected activity and Akron
24

In his Memorandum in Opposition, Siwik claims to have direct evidence of
retaliation, thus foregoing the need for the Court to “engage in the burden shifting framework.”
(Doc. No. 53 at 11.) Siwik asserts Dr. Lane’s “repeated admissions that he decided not to hire
Dr. Siwik because of Dr. Siwik’s participation in a lawsuit against the Clinic and Dr. Saarel, is
direct evidence of retaliation.” (Id.) However, Siwik does not direct the Court to where these
admissions occurred or where they can be located within the evidence. The only evidence the
Court has located which would be could be construed as direct evidence of retaliation is Siwik’s
own testimony Lane told him Akron Children’s was no longer considering him due to
information he received from the Cleveland Clinic. (Doc. No. 50-2, Siwik Depo at Tr. 63-66.)
However, Lane has disputed this testimony. (Doc. No. 50-3, Lane Depo at Tr. 58-59.) As this is
a dispute of material fact, the Court cannot grant summary judgment on this basis.
25

See EEOC Enforcement Guidance on Retaliation and Related Issues, 2016 WL
4688886, *15-16 (E.E.O.C. Guidance Aug. 25, 2016)(anti-retaliation provisions include
protections to “those whose protected activity involved a different employer.”).
44

Children’s decision not to hire him. In late 2016, Lane approached Siwik about a possible
opening at Akron Children’s. (Doc. No. 50-2, Siwik Depo at Tr. 56-57.) Shortly thereafter,
Akron Children’s began to take steps towards hiring Siwik. The hospital conducted a financial
analysis which specifically compared the costs and benefits of a departing part-time physician
with Siwik. (Doc. No. 50-3, Lane Depo, Exh. 7.) Lane and several other physicians from Akron
Children’s hosted Siwik at a recruitment dinner in May 2017. (Doc. No. 50-3, Lane Depo, Exh.
1, 9.) Following this dinner, Lane sent Siwik a letter, informing him of the next step in the
recruitment process. (Doc. No. 50-2, Siwik Depo, Exh. F).
Meanwhile, on May 22, 2017, Siwik filed his lawsuit against the Cleveland Clinic. (Doc.
No. 1.) In late May or early June 2017, Saarel mentioned Siwik’s discrimination claim to Lane.
(Doc. No. 50-3, Lane Depo at Tr. 50.) Following this conversation, Lane informed the executive
vice president and the chief medical officer of Akron Children’s of the lawsuit. (Id. at Tr. 53.)
Lane explained he notified these individuals because Akron Children’s was “in the process of
considering Dr. Siwik for a position” and he was not certain if this information was “relevant or
not.” (Id. at Tr. 54.)
What transpired after Akron Children’s became aware of the lawsuit is in dispute.
According to Siwik, around June 25, 2017, Lane told him his candidacy for the position had been
“set aside.” (Doc. No. 50-2, Siwik Depo at Tr. 54, 65.) Thereafter, Siwik and Lane had a oneon-one meeting at a restaurant on July 3, 2017. (Id. at Tr. 63.) According to Siwik, Lane
informed him he was “no longer considered a candidate for the position at Akron Children’s” at
this meeting. (Id. at Tr. 65.) Siwik testified Lane explained this was due to the “communication
he had with Dr. Saarel and the Cleveland Clinic.” (Id. at Tr. 66.) Lane disputes this testimony,

45

asserting at that point in time, “a lawsuit really was not an issue for [him].” (Doc. No. 50-3, Lane
Depo at Tr. 58.) However, Siwik has presented evidence which, if believed by a factfinder,
raises an inference that but for Siwik’s pending lawsuit against the Cleveland Clinic, Akron
Children’s would have continued to consider him for the position. Moreover, the short time
frame between when Akron Children’s became aware of the lawsuit (June 2017) and decision to
not hire him (July 2017) also raises an inference of a causal connection. See Mickey v. Zeidler
Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008)(“Where an adverse employment action occurs
very close in time after an employer learns of a protected activity, such temporal proximity
between the events is significant enough to constitute evidence of a causal connection for the
purposes of satisfying a prima facie case of retaliation.”). See also Yazdian v. ConMed
Endoscopic Tech., 793 F.3d 634, 650 (6th Cir. 2015).
Assuming, arguendo, a prima facie case has been established, Akron Children’s has
offered a legitimate, non discriminatory reason for declining to hire Siwik. Akron Children’s
asserts it “decided not to continue with [Siwik’s] candidacy based upon” a July 20, 2017 email26
26

This email read as follows:

Dear John:
I’m sorry to bother, but I felt obligated to reach out one last time before my initial
hearing in the Domestic Relations Court on July 25th. As you know, it involves
Camden being able to relocate to Rhode Island and the best, and possibly only, way
I can forestall that is to be able to demonstrate I will be employed in the Cleveland
area shortly. I understand that isn’t necessarily Akron’s problem, but I believe that
CCF’s actions with regards to my candidacy with them, and now with you, were
wrong and likely unlawful. And again, all I asked for what a fair opportunity to do
what I have done competently, and with alacrity, for 20 years now.
Anyways, if you can figure out a way to help me, I’d be grateful. It’ll be
heartbreaking for me to have Camden move as a consequence of their actions.
46

Siwik had sent to Lane. (Doc. No. 50-1 at 19.) Attached to this email was an amended
complaint Siwik had drafted. (Doc. No. 50-2, Siwik Depo, Exh. E.) This complaint included
allegations Lane had told Siwik his “candidacy had been set aside for the time being because he
and Akron Children’s Hospital had been notified by the Cleveland Clinic Foundation” of the
lawsuit. It further alleged Lane told Siwik “Akron Children’s now needed to be ‘more
deliberate’ giving CCF’s ‘alerts,’ and that he could not foresee when those circumstances may
change.” (Id.) Lane testified this complaint “quoted [him] extensively out of context,” which he
viewed as a “betrayal.” (Doc. No. 50-3, Lane Depo at Tr. 102.)
Akron Children’s maintains this email provided legitimate, nondiscriminatory reasons for
declining to hire Siwik because (1) Siwik had “breached Dr. Lane’s confidence and trust by
threatening to inject Dr. Lane into his lawsuit against the Cleveland Clinic;” and (2) the email
“demonstrated that he was interested in the position solely as a mechanism to obtain leverage or
prevail in his custody dispute over his minor son, rather than out of any sincere interest for the
Cardiology Position.” (Doc. No. 50-1 at 19.) Akron Children’s contends since it has provided
legitimate, non- retaliatory reasons, the burden shifts to Siwik to show pretext. (Id. at 19-20.)

Thanks for your consideration and honesty. Just for your records, I attached a
recommendation letter that was ironically sent to Tess last year on my behalf when I
asked to be considered for a general cardiology position at Hillcrest. Also, given
CCF’s recent actions, my complaint in Federal court is being amended. Since I
provided you a copy of the initial complaint, I’m going to forward you what is being
added.
Thanks again for your time.
Ernie.
(Doc. No. 50-2, Siwik Depo, Exh. E).
47

However, Siwik views Akron Children’s admission it declined to hire him on the basis of
this email differently. Siwik argues the email itself was the protected activity. (Doc. No. 51-1 at
15.) Siwik contends because Akron Children’s conceded it did not hire him because of this
email, “they have admitted that their actions were taken for retaliatory reasons.” (Id. at 21.)
For purposes of a prima facie case of retaliation, there are two types of protected activity:
(1) participation in a proceeding with the Equal Employment Opportunity Commission
(“EEOC”) and (2) opposition to an apparent Title VII violation. Wasek v. Arrow Energy Serv.,
Inc., 682 F.3d 463, 469 (6th Cir. 2012). Siwik argues his July 20, 2017 email constitutes
opposition to a Title VII violation. (Doc. No. 58 at 3.)
The EEOC has identified a range of oppositional conduct which is protected by Title VII,
including complaining to anyone (management, unions, other employees, or newspapers) about
allegedly unlawful practices. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579 (6th Cir.
2000)(citing the EEOC Compliance Manual). There is no restriction “on who the individual
doing the complaining may be or on the party to whom the complaint is made known—i.e., the
complaint may be made by anyone and it may be made to a co-worker, newspaper reporter, or
anyone else about alleged discrimination against oneself or others.” Id. at 580. However, the
individual making the complaint must have a reasonable and good faith belief he is opposing
unlawful practices. Yazdian, 793 F.3d at 646.
Here, Siwik is asserting the entirety of his email to Lane is protected activity because it
references his retaliation lawsuit against the Cleveland Clinic. The Court does not find this
argument persuasive. While Siwik’s lawsuit and his amended complaint against the Cleveland
Clinic are protected activity, the entire email is not. Indeed, the email not only references the

48

Cleveland Clinic’s alleged retaliation, but also Siwik’s desire for a hiring decision due to his
domestic dispute, a request which is not protected by Title VII. Siwik himself has admitted this
email was sent in “a last-ditch attempt to try to avoid” his ex-wife moving his son to Rhode
Island. (Doc. No. 50-2, Siwik Depo at Tr. 47.) As Siwik did not have a “reasonable and good
faith belief” his entire email was opposing unlawful practices, the entire email cannot be
considered a “protected activity.” See Yazdian, 793 F.3d at 646. Thus, Lane’s admission he
declined to hire Siwik based upon the email does not conclusively establish retaliation.
Siwik further argues Lane’s admission he did not hire Siwik due to the content of the
amended complaint is evidence of retaliation. (Doc. No. 58 at 4.) While Siwik’s lawsuit and
charges of retaliation are protected activity, this argument is a mischaracterization of Lane’s
testimony. Lane agreed that had Siwik not “brought him into his lawsuit with the Cleveland
Clinic,” he probably would have hired him. (Doc. No. 50-3, Lane Depo at Tr. 117-118.)
However, this is not evidence Lane’s decision not to hire Siwik was made directly in response to
Siwik’s Title VII protected activity. Indeed, Lane was already aware of the lawsuit against the
Cleveland Clinic prior to receiving this email. Rather, as Lane explained, the content of the
amended complaint referenced private conversations between him and Siwik, which Lane
believed Siwik took out of context and mischaracterized. (Id. at Tr. 139, 140.) It is reasonable
and nondiscriminatory to decline to hire an individual on the basis that he misquoted and
mischaracterized a private conversation.
Akron Children’s has articulated another reason for not hiring Siwik – the email
demonstrated he was interested in the position only to “obtain leverage or prevail in an ongoing
custody dispute.” (Doc. No. 54 at 9.) Siwik’s July 20, 2017 email does reference his ongoing

49

domestic relations case. (Doc. No. 50-2, Siwik Depo, Exh. E). Within the email, Siwik informs
Lane the only way for him to forestall his minor son relocating is to “demonstrate [he would] be
employed in the Cleveland area shortly.” (Id.) He requests Lane “figure out a way to help” him,
again referencing the possibility of his son moving from Ohio. (Id.) Lane testified he did not
“fault” Siwik for wanting to be near his children, but his opinion of Siwik changed because he
“became more insistent and more rushed” and “wanted a decision about employment because it
affected his – it affected his position in his other lawsuits and he wanted to move at a pace
[Akron Children’s was] not willing to move at.” (Doc. No. 50-3, Lane Depo at Tr. 41.) While
Siwik argues this cannot be a legitimate reason because Lane had known about the “custody
dispute for months,” Akron Children’s burden is one of production, not persuasion, and Akron
Children’s has provided a reasonable basis to satisfy this burden. (See Doc. No. 58 at 5.)
Upshaw v. Ford Motor Co., 576 F.3d 576, 589 (6th Cir. 2009). See also Casagrande v.
OhioHealth Corp., 666 Fed App’x 491, 500 (6th Cir. Dec. 20, 2016).
Therefore, to prevail on his motion for summary judgment, Siwik must rebut the provided
reasons and show Akron Children’s explanations are pretext. Siwik insists Lane’s reasoning
Siwik had breached his trust by quoting him in the amended complaint “is not a legitimate
justification” and is “actually an admission that Defendant’s unlawfully retaliated against Siwik.”
(Doc. No. 58 at 7.) In support of this argument, Siwik cites a First Circuit case which stands for
the proposition a protected activity cannot be “punished as an act of disloyalty or a breach of
trust.” (Doc. No. 58 at 7, Doc. No. 53 at 14, See DeCaire v. Mukasey, 530 F.3d 1 (1st Cir.
2008).) Akron Children’s maintains there is no evidence it was attempting to punish Siwik for
engaging in protected activity. (Doc. No. 57 at 8.) Rather, Akron Children’s argues Lane “did

50

not appreciate being potentially dragged into [Siwik’s] personal matter – a perfectly legitimate
and non-retaliatory reason for not continuing with a person’s candidacy.” (Id.)
Viewing the evidence in a light most favorable to Akron Children’s, the Court concludes
a reasonable juror could find Lane’s feelings Siwik had breached his confidence and trust were
not pretext for retaliation. As discussed supra, Siwik quoted Lane throughout his amended
complaint, quotes which Lane felt were either inaccurate or out of context. He was not
“punishing” Siwik for filing a claim of retaliation against the Cleveland Clinic, rather he was
declining to hire him due to what he viewed as an inappropriate and inaccurate email.
Inappropriate communication styles can constitute a legitimate, non-discriminatory grounds for
adverse action. See Parikh v. Cleveland Hardware & Forging Co., 2006 WL 1515667, at *9
(N.D. Ohio May 26, 2006). A reasonable jury could believe Lane’s assertion his decision not to
hire Siwik was unrelated to Siwik’s lawsuit against the Cleveland Clinic and find Lane was
justified in feeling betrayed by Siwik.
Conversely, viewed in a light most favorable to Siwik,27 the Court also finds Siwik has
offered evidence from which a reasonable jury could conclude Akron Children’s reasoning was
pretextual. Lane testified prior to this July 20, 2017 email, Siwik was still under consideration
for a position at Akron Children’s. (Doc. No. 50-3, Lane Depo at Tr. 103.) However, Siwik has
offered evidence to the contrary. After Saarel had informed Lane about Siwik’s lawsuit, Lane

27

Siwik and Akron Children’s have filed cross motions for summary judgment.
The typical summary judgment standard of review “poses unique issues” when cross motions for
summary judgment are filed. B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 592 (6th
Cir.2001). In such case, the district court must evaluate each party's motion on its own merits,
drawing all reasonable inferences against the moving party. Id. If it is possible to draw
inferences in either direction, then both motions for summary judgment should be denied. Id. at
592–93.
51

relayed this information to the executive vice president and the chief medical officer of Akron
Children’s. (Doc. No. 50-3, Lane Depo at Tr. 50-53.) Lane admits he notified these individuals
because Akron Children’s was “in the process of considering Dr. Siwik for a position” and he did
not know if this information was “relevant or not.” (Id. at Tr. 54.) Moreover, according to
Siwik, Lane told him in both June and early July 2017 he was no longer being considered for the
position. (Doc. No. 50-2, Siwik Depo at Tr. 54, 63-65.) While Lane disputes this, Siwik has
presented evidence upon which a reasonable juror could conclude Akron Children’s was no
longer considering him due to his lawsuit and Lane used the content of the June 20, 2017 email
as a pretextual reason for not hiring him. See Braithwaite, 258 F.3d at 494 (finding in order for
plaintiff to show a dispute of material facts, a plaintiff must “put forth evidence which
demonstrates that the employer did not ‘honestly believe’ in the proffered non-discriminatory
reason for its adverse employment action.”).
Siwik also argues since Akron Children’s had known about Siwik’s ongoing custody
dispute when they began to recruit him, its explanation that it stopped considering him due to it
has no basis in fact. (Doc. No. 58 at 8, Doc. No. 53 at 14.) He maintains it was not until Akron
Children’s became aware of his protected activity that he was no longer under consideration for
the position. (Doc. No. 53 at 14.) Akron Children’s asserts while Lane was “generally aware of
[Siwik’s] ongoing custody dispute,” Siwik had become more insistent and rushed by July 2017,
wanting a hiring decision in a shorter time frame. (Doc. No. 57 at 9.)
The Court finds a reasonable juror could draw inferences in either direction for this
explanation as well. Viewing the evidence in a light most favorable to Akron Children’s, Siwik
became more insistent regarding an employment decision between May 2017 and July 2017. In

52

May 2017, Lane had written a letter for Siwik in connection with his custody dispute. (Doc. No.
50-2, Siwik Depo, Exh. F). Siwik requested this letter to demonstrate he was being considered
for a position in Northeast Ohio. (Id. at Tr. 61.) He did not request any sort of hiring decision
from Lane at that time. However, by his July 20, 2017 email, Siwik arguably placed pressure on
Lane for a hiring decision. Within the email, Siwik informed Lane his custody hearing was in
five days and the only way he could forestall his son moving would be by securing employment
in the Cleveland area. (Id. at Exh. E.) He implored Lane “figure out a way to help” him, adding
it would be “heartbreaking” for his son to move. (Id.) Siwik admits this email was “a last-ditch
attempt to try to avoid” his ex-wife moving his son from Ohio. (Id. at Tr. 47.) Lane testified at
this point, Siwik had become “insistent and more rushed” regarding an hiring decision and Akron
Children’s was not willing to move that quickly. (Doc. No. 50-3, Lane Depo at Tr. 41.) A
reasonable juror could conclude Siwik was hoping to secure employment at Akron Children’s
only in order to prevent his son from moving and Akron Children’s decision not to hire him on
this basis was not pretext for retaliation.
However, viewing the evidence in a light most favorable to Siwik, a reasonable jury could
also conclude this reason was pretextual. Lane testified he did not “fault” Siwik for his desire to
work near his family and he felt Siwik’s interest in seeking employment at Akron Children’s was
sincere. (Doc. No. 50-3, Lane Depo at Tr. 41, 121.) As Siwik correctly notes, Lane and Akron
Children’s were aware of Siwik’s custody issues and desire to work in Northeast Ohio and this
did not deter them from considering him for a position in May 2017. In fact, Lane went so far as
to assist Siwik in his custody dispute and provided a letter to demonstrate Siwik was being
considered for a position in Northeast Ohio. (Doc. No. 50-2, Siwik Depo, Exh. F). Nevertheless,

53

shortly after Akron Children’s became aware of the lawsuit, and immediately after it became
aware of the retaliation claims against the Cleveland Clinic, Siwik was not longer a viable
candidate. Moreover, during his deposition, Lane reviewed Siwik’s email line by line and
conceded there was nothing in the body of the email which fueled his decision not to hire Siwik.
(Doc. No. 50-3, Lane Depo at Tr. 104-108.) This included Siwik’s references to his upcoming
domestic relations hearing and desire to have employment in the area. (Id.) Based upon this
evidence, the Court finds a reasonable jury could find Akron Children’s rationale to be
pretextual.
Accordingly, because there is a factual dispute regarding not only the fourth prong of the
prima facie case, but also whether or not Akron Children’s provided reasons for the adverse
action were pretextual, summary judgment for either party is not appropriate. The Court
DENIES Defendant Akron Children’s Hospital’s Motion for Summary Judgment and DENIES
Plaintiff's Motion for Partial Summary Judgment as to Counts Three and Seven.
2.

Aiding and Abetting (Count Eight) – Akron Children’s Hospital & Dr. Lane
In Count Eight of the Second Amended Complaint, Siwik alleges Ohio aiding and

abetting claims against Akron Children’s Hospital and Lane, pursuant to O.R.C. §4112.02(J).
(Doc. No. 28 at ¶¶134-138.) Defendants Akron Children’s Hospital and Lane argue they are
entitled to summary judgment in their favor with respect to this claim. (Doc. No. 50-1 at 20-22.)
Conversely, Siwik argues summary judgment should be granted in his favor against Lane28
28

In his Reply Brief, Siwik only argues that Lane can be held liable under O.R.C.
§4112.02(J). (Doc. No. 58 at 9.) Indeed, Akron Children’s cannot, as a matter of law, aid or
abet itself in retaliating against Siwik. Sampson, 2015 WL 3953053, *10; Oster, 2017 WL
2215462 at *22 (“a corporate entity cannot aid and abet itself in employment discrimination”);
Woodworth v. Time Warner Cable, Inc., 2015 WL 6742085, Fn 3 (N.D. Ohio Nov. 2, 2015).
Thus, Count Eight as to Akron Children’s is dismissed.
54

because he has established Akron Children’s retaliated against him from participating in a
protected activity. (Doc. No. 51-1 at 21.)
As noted supra, Ohio law makes it unlawful “[f]or any person to aid, abet, incite, compel,
or coerce the doing of any act declared by this section to be an unlawful discriminatory practice,
to obstruct or prevent any person from complying with this chapter or any order issued under it,
or to attempt directly or indirectly to commit any act declared by this section to be an unlawful
discriminatory practice.” O.R.C. § 4112.02(J).
Lane argues he cannot be held liable under this provision for several reasons.29 First,
Lane argues because Siwik cannot establish any violation of state or federal civil rights law, he
cannot be held liable for aiding and abetting a non-existent violation. (Doc. No. 50-1 at 21.)
Lane further maintains it would be “legally impossible” for Lane to aid and abet Akron
Children’s as he is “nothing more than an agent of Akron Children’s Hospital.” (Id. at 22.)
The Court does not find either of these arguments persuasive. Because the Court has
concluded there is a genuine issue of material fact with respect to Siwik’s underlying retaliation
claims against Akron Children’s, it is therefore conceivable for a jury to find Lane liable for
aiding and abetting such retaliation. See Oster, 2017 WL 2215462 at *22 (finding where a
plaintiff can survive summary judgment on discrimination and retaliation claims, allegations and
evidence of aiding and abetting “pass muster” as well).
Moreover, O.R.C. § 4112.02(J) does provide for employees, such as Lane, to be held
29

Lane also asserts there is no evidence Lane or Akron Children’s aided or abetted
the Cleveland Clinic or Saarel in discriminating or retaliating against Siwik. (Doc. No. 50-1 at
21.) However, Siwik has not alleged Lane or Akron Children’s aided or abetted the Cleveland
Clinic or Saarel. Indeed, Siwik has alleged Lane “aided and abetted [Akron Children’s] in its
unlawful employment practices.” (Doc. No. 53 at 17.) To the extent Siwik does contend Lane
aided and abetted the Cleveland Clinic and Saarel, the Court deems these arguments waived.
55

liable for aiding and abetting its employer’s discriminatory or retaliatory practices. Hauser v.
Dayton Police Dep’t, 140 Ohio St.3d 268, ¶12 (2014)( finding O.R.C. § 4112.02(J) “holds
individual employees liable for their participation in discriminatory practices.”). See also
Woodworth v. Time Warner Cable, Inc., 2015 WL 6742085, *3 (N.D. Ohio Nov. 2, 2015).
Lane argues he is “nothing more than an agent of Akron Children’s” and Akron
Children’s cannot aid and abet itself. (Doc. No. 50-1 at 22.) In support, Lane cites Sampson v.
Sisters of Mercy of Willard, Ohio, 2015 WL 3953053 (N.D. Ohio June 29,2015). (Id.) While
Sampson does hold a corporate entity cannot aid and abet itself in violations of the Ohio Civil
Rights Act, Siwik is not asserting Akron Children’s aided and abetted itself in retaliating against
him. Siwik is alleging Lane “aided and abetted [Akron Children’s] in its unlawful employment
practices.” (Doc. No. 53 at 17.)
Lane maintains Sampson “stands for the proposition that were all alleged ‘aiders or
abettors’ are members of the same collective enterprise (e.g., a hospital), generally speaking,
there are not two separate ‘persons’ capable of ‘aiding and abetting’ one another in
discriminatory acts.” (Doc. No. 16 at 10.) Lane’s reliance on Sampson is misplaced. The court
in Sampson found a plaintiff’s aiding and abetting claim failed as a matter of law because the
only evidence the plaintiff brought forth to support the aiding and abetting claim was against
individuals who were not named as defendants in the action. Sampson, 2015 WL 3953053 at
*10. The plaintiff did not provide any evidence two of the named defendants – both corporate
entities – aided and abetted the employer’s discriminatory actions. Id. The only remaining
defendant was the plaintiff’s employer, who the court concluded could not aid or abet its own

56

allegedly discriminatory actions. Id. The court30 did not, despite Lane’s suggestion otherwise,
find an employee or “agent” of an employer is unable to be found liable under O.R.C. §
4112.02(J).
Conversely, Siwik argues that, because he has established Akron Children’s is liable for
retaliation, Lane must be liable for aiding and abetting the retaliation. (Doc. No. 58 at 9.) This
argument also fails. While Siwik has brought forth sufficient evidence to support the proposition
Lane was involved with the alleged retaliation by Akron Children’s, he has not conclusively
established such retaliation occurred. Therefore, it is not appropriate for the Court to grant
summary judgment to Siwik on this claim.
.

In sum, because the Court has concluded there is a genuine issue of material fact with

respect to Siwik’s underlying retaliation claims against Akron Children’s, the Court declines to
grant summary judgment on this claim for either party. Accordingly, the Court DENIES
Defendant Lane’s Motion for Summary Judgment and DENIES Plaintiff's Motion for Partial
Summary Judgment as to Count Eight.
3.

Punitive Damages – Akron Children’s Hospital & Dr. Lane
In his Second Amended Complaint, Siwik seeks punitive damages from the Defendants.

(Doc. No. 28 at 11-17.) The Akron Children’s Defendants argue Siwik cannot recover punitive
damages under federal or Ohio law because he has not adduced any evidence of malice or
reckless indifference. (Doc. No. 50-1 at 23-25.) Siwik asserts the Akron Children’s Defendants
30

Moreover, this Court has located multiple cases from both the Northern and Southern
Districts of Ohio which found an employee can be held liable for aiding and abetting its
employer’s discriminatory or retaliatory practices. See Oster, 2017 WL 2215462 at *22
(employees of a bank can be held liable for aiding and abetting the banks allegedly
discriminatory practices); Cummings v. Greater Cleveland Regional Transit Authority, 88
F.Supp.3d 812 , 820 (N.D. Ohio Jan. 29, 2015); Woodworth, 2015 WL 6742085 at *2.
57

are not entitled to summary judgment on the issue of punitive damages. (Doc. No. 53 at 18.)
Both federal and Ohio law allow for punitive damages in employment discrimination and
retaliation actions. 42 U.S.C. § 1981a(a)(1); Rice v. CertainTeed Corp., 84 Ohio St.3d 417, 418
(1999) (concluding Ohio law “authorizes an award of punitive damages in civil employment
discrimination actions.”) To recover punitive damages under federal law, a plaintiff must show
the employer “engaged in a discriminatory practice . . . with malice or with reckless indifference
to the federally protected rights of an aggrieved individual.” Workman v. Frito-Lay, Inc., 165
F.3d 460, 469 (6th Cir.1999)(citing 42 U.S.C. § 1981a(b)(1)). “Malice” and “reckless
indifference” refer to “the employer's knowledge that it may be acting in violation of federal law,
not its awareness that it is engaging in discrimination.” Kolstad v. American Dental Ass'n, 527
U.S. 526, 535 (1999). Therefore, in order for a plaintiff to recover punitive damages, he must
show “an employer . . . discriminated in the face of a perceived risk that its actions will violate
federal law[.]” Id. at 536.
Similarly, to support a claim for punitive damages under Ohio law, a plaintiff must show
actual malice. Morgan v. New York Life Ins. Co., 559 F.3d 425, 440 (6th Cir. 2009)(citing Rice,
84 Ohio St.3d 417.). “[A]ctual malice, necessary for an award of punitive damages, is (1) that
state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of
revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great
probability of causing substantial harm.” Preston v. Murty, 32 Ohio St.3d 334, 336, 512 N.E.2d
1174, 1176 (1987). Moreover, under Ohio law, a plaintiff “must show by clear and convincing
evidence that he is entitled to punitive damages.” Morgan, 559 F.3d at 440 (citing Cabe v.
Lunich, 70 Ohio St.3d 598, 601 (1994).).

58

With respect to the federal standard for punitive damages, the Court finds Siwik has
presented enough evidence to create a genuine issue of material fact as to whether the Akron
Children’s Defendants acted with malice or reckless indifference to his federally protected rights.
See Workman, 165 F.3d at 469. Siwik testified he believed the Akron Children’s Defendants
“took their actions they did knowing they would cause [him] distress at a minimum and maybe
damage as well.” (Doc. No 50-2, Siwik Depo at Tr. 83.) In addition, Siwik presented the
following evidence: (1) Lane’s admission he immediately informed the executive vice president
and chief medical officer of the lawsuit; (2) Lane’s testimony these individuals told Lane to
“break off any further communication” with Siwik when Siwik provided him with an amended
complaint in which Siwik asserted his federally projected rights; and (3) Siwik’s allegations Lane
had told him on multiple occasions he was not being considered for the position due to his
lawsuit. (See Doc. No. 50-3, Lane Depo at Tr. 54, 148; Doc. No. 50-2, Siwik Depo at Tr. 54, 63,
65, 66.) Considering all of the evidence in conjunction with Siwik’s testimony, a reasonable jury
could infer the Akron Children’s Defendants acted with a reckless indifference to Siwik’s
federally protected rights.
The Akron Children’s Defendants point31 to Lane’s testimony that he “never had
retaliation on [his] mind” as evidence Siwik cannot show the Akron Children’s Defendants were

31

The Akron Children’s Defendants also make much of the fact Siwik, in his Motion for
Partial Summary Judgment, states “Dr. Lane bears no ill will toward Dr. Siwik, nor does anyone
else at ACH.” (Doc. No. 51-1 at 13.) However, whether or not Lane or Akron Children’s bears
“ill will” towards Siwik is irrelevant to establishing punitive damages under federal law. The
Akron Children’s Defendants could conceivably have no “ill will” towards Siwik personally, but
still decide to act with a reckless indifference to his federally protected rights. Indeed, Siwik has
presented evidence to show shortly after Siwik asserted his federally protected rights, the Akron
Children’s Defendants chose to break off any communication with him and cease to consider
him for a position. (See Doc. No. 50-3, Lane Depo at Tr. 148.)
59

acting with “any subjective knowledge that they were violating federal law.” (Doc. No. 57 at
14.) However, a reasonable juror, considering all the evidence in context, could find Lane’s
testimony not credible. This Court has already found there is a question of fact as to the
motivation behind the Akron Children’s Defendants decision not to hire Siwik. Because the
resolution of this factual dispute will largely turn on the jury’s credibility evaluation of both
Siwik and Lane, the Court declines to determine whether or not the Akron Children’s Defendants
acted with “malice” or “reckless indifference” at this stage in the proceedings. See Saley v.
Caney Fork, LLC, 886 F.Supp.2d 837, 861 (M.D. Tenn. Aug. 10, 2012)(“a more detailed inquiry
into Defendant’s state of mind and knowledge of the [ADA] can occur at trial.”).
Similarly, the Court finds Siwik has presented enough evidence to create a genuine issue
of material fact as to whether the Akron Children’s Defendants acted with actual malice32 to
support an award of punitive damages under Ohio law. As noted supra, actual malice can be
established in two ways under Ohio law. A plaintiff must show either “(1) that state of mind
under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a

32

The Court notes Siwik asserts “[r]etaliatory conduct, by itself, is sufficient” to find a
defendant acted in conscious disregard of a plaintiff’s rights. (Doc. No. 53 at 20.) This is a
mischaracterization of the law. As noted supra, the Supreme Court of Ohio has held in order to
recover punitive damages, a plaintiff must show conscious disregard for his rights. Preston, 32
Ohio St.3d at 334. A plaintiff is not automatically entitled to punitive damages upon
establishing a violation of the Ohio Civil Rights Act. See McIntyre v. Advance Auto Parts, 2007
WL 120645, *29-30 (N.D. Ohio Jan. 10, 2007)(finding a plaintiff must show “ill will or spirit of
revenge, or with a conscious disregard for Plaintiff’s rights and safety” in order for a request for
punitive damages to survive on summary judgment, despite the fact an Ohio Civil Rights Act
claim was able to survive summary judgment.) See also Kolstad, 527 U.S. at 534 (“There will
be circumstances where intentional discrimination does not give rise to punitive damages
liability.”) Regardless, the Court finds Siwik has presented enough evidence for a reasonable
juror to infer actual malice at the behest of the Akron Children’s Defendants.

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conscious disregard for the rights and safety of other persons that has a great probability of
causing substantial harm.” Preston, 512 N.E.2d at 1176. Here, Siwik seeks to establish actual
malice under the second prong, asserting the Akron Children’s Defendants acted “with conscious
disregard” of his rights. (Doc. No. 28 at 13, 16.) As noted above, Siwik has presented several
pieces of evidence from which a reasonable juror could infer the Akron Children’s Defendants
were not only aware Siwik was asserting his rights under the Ohio Civil Rights Act, but had
brazenly chosen not to hire him due to the assertion of those rights. See Jakimczuk v.
DaimlerChrysler Corp., 2006 WL 1624549, *4 (N.D. Ohio Jan. 9, 2006)(“Though [plaintiff] has
not presented direct evidence, a jury may infer actual malice from conduct and surrounding
circumstances.”). Again, because the determination of the Akron Children’s Defendants’
motivations behind their employment decision with regards to Siwik is a task best left for the
jury, the Court declines to dispose of Siwik’s request for punitive damages under Ohio law on
summary judgment.
Finally, the Akron Children’s Defendants argue they are entitled to summary judgment on
the issue of punitive damages because Siwik was unable to testify as to whether or not the Akron
Children’s Defendants acted with malice. Indeed, during his deposition, Siwik testified he did
not know if Akron Children’s wanted to intentionally hurt him or cause him distress. (Doc. No
50-2, Siwik Depo at Tr. 82, 83.) Siwik testified while he knew the actions of Akron Children’s
and Lane caused him distress, he did not “have a belief one way or the other what they were
intending to do.” (Id. at Tr. 83, 84.) However, while this testimony establishes Siwik himself
does not understand the legal standard for punitive damages, this does not preclude Siwik from
possibly recovering them.

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In sum, construing the facts in a light most favorable to Siwik, a reasonable jury could
find the Akron Children’s Defendants acted with the requisite malice for punitive damages under
either federal or Ohio law. Accordingly, for the foregoing reasons, Defendants' motion for
summary judgment is DENIED as to Plaintiff's claim for punitive damages.
V. Conclusion
For the reasons set forth above, (1) Siwik’s motion is DENIED; (2) the Cleveland Clinic
Defendants’ motion is GRANTED IN PART and DENIED IN PART; and (3) the Akron
Children’s Defendants’ motion is GRANTED IN PART and DENIED IN PART. Specifically:
(1) Defendant Cleveland Clinic’s Motion for Summary Judgment as to
Counts One, Two, Four, Five, and Eight is GRANTED;
(2) Defendant Cleveland Clinic’s Motion for Summary Judgment as to
Counts Three and Six is DENIED;
(3) Defendant Akron Children’s Hospital’s Motion for Summary Judgment
as to Count Eight is GRANTED;
(4) Defendant Akron Children’s Hospital’s Motion for Summary Judgment
as to Counts Three and Seven is DENIED;
(5) Defendant Saarel’s Motion for Summary Judgment as to Count Eight is
DENIED;
(6) Defendant Lane’s Motion for Summary Judgment as to Count Eight is
DENIED;
(7) The Akron Children’s Defendants’ Motion for Summary Judgment on
the issue of punitive damages is DENIED;
(8) Plaintiff Siwik’s Motion for Partial Summary Judgment as to Counts
Three, Seven, and Eight is DENIED.
IT IS SO ORDERED.
Date: March 5, 2019

s/ Jonathan D. Greenberg
Jonathan D. Greenberg
U.S. Magistrate Judge
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