Somogye v. Toledo Clinic, Inc.
Filing
28
Memorandum Opinion and Order granting 20 Defendant's Motion for summary judgment. Case dismissed. Magistrate Judge James R. Knepp, II on 6/14/12. (A,P)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARY K. SOMOGYE,
Plaintiff,
v.
Case No. 3:11 CV 496
Magistrate Judge James R. Knepp, II
MEMORANDUM OPINION AND ORDER
TOLEDO CLINIC, INC.,
Defendant.
INTRODUCTION
Plaintiff Mary K. Somogye is a Registered Nurse who was employed by Defendant Toledo
Clinic, Inc. as a Clinical Affiliate in their Cardiology Department from October 2000 until March
2010. Among a number of state tort law claims, she alleges Defendant discriminated against her
based on age and based on her association with a disabled person.
Initially, Plaintiff filed this case in the Lucas County Court of Common Pleas. Defendant
removed the case to this District Court, which has jurisdiction under 28 U.S.C. § 1331. The parties
have consented to the undersigned’s exercise of jurisdiction in accordance with 28 U.S.C. § 636(c)
and Civil Rule 73. (Doc. 8). Plaintiff alleges six causes of action:
1.
Age discrimination under the Age Discrimination in Employment Act (ADEA), 29
U.S.C. §§ 621 et seq;
2.
Discrimination based on Plaintiff’s association with a disabled person, under the
Americans with Disabilities Act (ADA and ADAAA), 42 U.S.C. §§ 12101 et seq;
3.
Intentional infliction of emotional distress (IIED);
4.
Negligent hiring, retention, and supervision;
5.
Defamation; and
6.
Invasion of privacy.
Defendant filed a Motion for Summary Judgment on all counts. (Doc. 20). Plaintiff filed an
Opposition (Doc. 23), and Defendant filed a Reply (Doc. 27). For the reasons explained below, the
Court grants Defendant’s Motion for Summary Judgment.
BACKGROUND
Plaintiff is a Registered Nurse and was employed as a Clinical Affiliate in Defendant’s
cardiology department from October 2000 until Defendant terminated her employment in March
2010. (Doc. 20-1, at 8–9, 72–76). The majority of the time, Plaintiff did not work on Defendant’s
grounds, but rather worked alongside physicians at Flower Hospital and Toledo Hospital. (Doc. 204, at 14–15; Doc. 20-5, at 10). Plaintiff’s job duties included assisting physicians in patient care and
education and writing progress notes for the physicians. (Doc. 20-2; Doc. 20-1, at 26; Doc. 20-5,
at 25). In the course of her job, Plaintiff commonly accessed medical records to review labs, data,
and other diagnostic test results ordered by physicians. (Doc. 20-2; Doc. 20-5, at 25). Plaintiff’s
employment with Defendant was as an at-will employee, allowing either she or Defendant to
terminate the employment relationship at any time. (Doc. 20-1, at 39; Doc. 20-12). Plaintiff
acknowledged this both by signing the employee handbook (Doc. 20-12) and through her deposition
testimony (Doc. 20-1, at 39).
To protect patient privacy, Defendant requires its employees to adhere to a confidentiality
policy. The original policy Plaintiff signed when she began working for Defendant in 2000 stated:
I . . . agree that I will not seek or obtain information regarding a patient which is not
required in the performance of my duties. I understand that accepting and abiding by
this pledge of confidentiality is a condition of my employment and any violation of
this pledge shall be cause for my immediate dismissal.
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(Doc. 20-6; Doc. 20-7). Ultimately, when the Health Insurance Portability and Accountability Act
(HIPAA) went into effect the policy was updated to state: “I will not access or view any information
other than what is required to do my job. If I have any question about whether access to certain
information is required for me to do my job, I will immediately ask my supervisor for clarification.”
(Doc. 20-9; Doc. 20-10). The policy further provided: “I understand that violation of this Agreement
may result in disciplinary action, up to and including termination of my employment”. (Doc. 20-9,
20-10). The record shows Plaintiff signed and acknowledged these policies on four separate
occasions during her employment with Defendant. (Doc. 20-6; Doc. 20-7, Doc. 20-9; Doc. 20-10).
Defendant has a corrective action policy outlining its disciplinary process. (Doc. 20-13). This
policy establishes a general plan for progressive discipline, but reserves to management the right to
skip over or bypass any steps in the process. (Doc. 20-13). Further, the policy states: “How rapidly
an employee goes through the following steps or at what stage the corrective action is initiated
depends upon the seriousness of the offense involved and the length of time since the last violation.”
(Doc. 20-13).
The specific events leading to Plaintiff’s termination began when the Toledo Hospital
privacy officer, Sandy Lewallen, received an anonymous complaint of a HIPAA violation. (Doc. 204, at 12). Her investigation revealed Plaintiff had accessed medical records of two patients not being
treated by the physicians for whom she worked. (Doc. 20-4, at 12). On March 24, 2010, Lewallen
reported this information to Sue Ann Lancaster, Defendant’s director of compliance. (Doc. 20-4 at
8, 12).
Lancaster then conducted her own investigation. (Doc. 20-4, at 12). Upon checking the
records, the computer systems revealed the patients were not patients in the cardiology department,
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but showed Plaintiff had nevertheless accessed their medical records. (Doc. 20-4, at 12). In fact,
computer records showed Plaintiff had accessed one of the patient’s records at least 44 times and
the other patient’s records at least 28 times. (Doc. 23-3, at 21). Lancaster looked further, but found
no guardianship papers, HIPAA releases, or power of attorney releases connecting Plaintiff to the
patients’ medical records. (Doc. 23-3, at 21–13; Doc. 27-3).
When she had completed her investigation, Lancaster contacted Defendant’s director of
human resources, Steve Hammer, to discuss how to proceed. (Doc. 20-4, at 15). Hammer examined
the situation from a human resources perspective and discussed it with local counsel to make sure
Defendant proceeded correctly. (Doc. 20-15, at 7). Lancaster contacted Plaintiff’s direct supervisor,
Peggy Trapp, to arrange for Plaintiff to attend a meeting with human resources. (Doc. 20-5, at 10).
Trapp informed Plaintiff about the meeting, which was held later that day. (Doc. 20-1, at 71–72;
Doc. 20-4, at 16; Doc. 20-5, at 11; Doc. 20-15, at 8).
Prior to the meeting, Plaintiff was introduced to Hammer. (Doc. 20-1, at 72). She cannot
recall whether she had met him previously, but says he was an unfamiliar face and she had little if
any interaction with him prior to the March 24, 2010 meeting. (Doc. 20-1, at 72–73). In addition to
Plaintiff and Hammer, Lancaster and Trapp also attended the meeting. (Doc. 20-1, at 73).1 Lancaster
introduced everyone in the room and asked Plaintiff if she had ever accessed two particular patients’
medical records. (Doc. 20-1, at 74). Plaintiff said she had. (Doc. 20-1, at 74). Lancaster asked her
if she knew the two patients. (Doc. 20-4, at 17). Plaintiff explained the two people were her mother
and sister, and claims she told Lancaster she had power of attorney and a HIPAA release for her
1. Throughout Plaintiff’s deposition, Lancaster was incorrectly referred to as “Lewallen.” The
mistake was ultimately caught and corrected. (Doc. 20-1, at 80).
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mother and guardianship over her sister. (Doc. 20-1, at 74; Doc. 23-1, at paragraphs 6–7). Plaintiff’s
adult sister has Downs Syndrome and resided with Plaintiff during the events giving rise to this
litigation. (Doc. 20-1, at 12, 74). Her mother has Parkinson’s, takes a number of medications, and
frequently falls. (Doc. 20-1, at 20–21). Plaintiff referenced her family members’ medical problems
when explaining why she had accessed their medical records. (Doc. 20-1, at 20–21, 74).
Lancaster asked Plaintiff if she had needed the information to perform her job, and she stated
she had not – a statement Plaintiff acknowledged in her deposition. (Doc. 20-4, at 18; Doc. 20-1, at
77). Lancaster asked if Plaintiff’s mother and sister were cardiology department patients. (Doc. 20-1,
at 74; Doc. 20-15, at 12). Although Plaintiff said they were, hospital records indicated otherwise.
Neither person had been in the cardiology department for over a year. (Doc. 20-1, at 74, Doc. 20-15,
at 12).
Once Plaintiff had told her story, it was clear to Lancaster and Hammer she had violated
Defendant’s confidentiality policy. (Doc. 20-4, at 18–19; Doc. 20-15, at 9). They informed her that
she had violated company policy and terminated her employment by executing termination
paperwork already there for the meeting. (Doc. 20-4, at 19; Doc. 20-15, at 9). Pursuant to
Defendant’s policy for involuntarily terminated employees, they informed Plaintiff she could no
longer step foot on Defendant’s grounds unless as a patient or accompanying a patient, and could
not apply for employment anywhere in the ProMedica Healthcare System (and possibly Mercy
Health Partners). (Doc. 27-4; Doc. 20-1, at 75; Doc. 20-4, at 22–23). After Plaintiff signed
termination paperwork, Trapp told her the decision had not come from the cardiology department
physicians. (Doc. 20-1, at 76).
Defendant did not hire a replacement Clinical Affiliate after it terminated Plaintiff. (Doc. 20-
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5, at 17–18; Doc. 20-15, at 38). Plaintiff does not believe anyone replaced her. (Doc. 20-1, at 98).
Instead, Plaintiff’s former job duties have mainly been absorbed by the cardiology department
physicians. (Doc. 20-15, at 39). Additionally, Terri Liewert, a per diem employee, fills in as a
Clinical Affiliate when she has time off from her full-time job. (Doc. 20-15, at 38). But although
Plaintiff worked anywhere from 38 to 50-plus hours a week, Liewert worked no more than 120
hours total in 2011 and not much more than that in 2010. (Doc. 20-15, at 38).
Following Plaintiff’s termination, she sent a document to the EEOC detailing her position
and the EEOC issued her a right to sue letter. (Doc. 20-18; Doc. 1-1, at paragraph 4). Ultimately,
she sued Defendant for age and disability discrimination, along with various tort law claims.
Defendant now moves for summary judgment on all counts. (Doc. 20).
STANDARD OF REVIEW
Pursuant to Federal Civil Rule 56(a), summary judgment is appropriate where there is “no
genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of
law.” Id. When considering a motion for summary judgment, the Court must draw all inferences
from the record in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court is not permitted to weigh the evidence or
determine the truth of any matter in dispute; rather, the Court determines only whether the case
contains sufficient evidence from which a jury could reasonably find for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). This burden “may be discharged by
‘showing’ – that is, pointing out to the district court – that there is an absence of evidence to support
the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
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ANALYSIS
Age Discrimination Claim
ADEA makes it “unlawful for an employer to . . . discharge any individual . . . because of
such individual’s age.” 29 U.S.C. § 623(a)(1). Plaintiffs can establish ADEA violations through
either direct or circumstantial evidence. Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009).
When, as here, the plaintiff does not allege direct evidence of discrimination, “[t]he three-step
framework developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and modified
by Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981), guides the analysis of age
discrimination claims based upon circumstantial evidence.” Provenzano v. LCI Holdings, Inc., 663
F.3d 806, 811–12 (6th Cir. 2011).
First, the McDonnell Douglas burden shifting analysis requires the plaintiff to establish a
prima facie case of age discrimination. Id. at 812. If the plaintiff satisfies this burden, the burden of
production shifts to the defendant to articulate “some legitimate, nondiscriminatory reason for the
adverse employment action at issue.” Id. Finally, the burden shifts back to the plaintiff to show the
defendant’s proffered reason is merely a pretext to mask discrimination. Id. The Supreme Court has
emphasized that at all times, the ultimate burden of persuasion remains on the plaintiff to prove age
was the but-for cause of the adverse employment action. Gross v. FBL Financial Services, Inc., 129
S. Ct. 2343, 2351 (2009).
Plaintiff’s Prima Facie Case
To establish a prima facie case of age discrimination, Plaintiff must show (1) she was over
40 years old, (2) she was subject to an adverse employment action, (3) she was qualified for the
position, and (4) either she was replaced by someone outside the protected class, or similarly
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situated employees outside the protected class were treated more favorably. Clayton v. Meijer, Inc.,
281 F.3d 605, 610 (6th Cir. 2002).
Defendant does not dispute Plaintiff’s ability to satisfy the first two prongs of her prima facie
case. (Doc. 20, at 7). Neither does Defendant argue Plaintiff was unqualified for the position of
Clinical Affiliate. (Doc. 20, at 7). Rather, Defendant argues Plaintiff cannot establish the fourth
prong of her prima facie case. (Doc. 20, at 7). To satisfy her prima facie burden, Plaintiff must show
Defendant replaced her with a substantially younger employee or that younger, similarly situated
employees were treated more favorably than Plaintiff.
Replacement
Plaintiff claims a former co-worker, Terri Liewert, took on some of her duties. (Doc. 20-1,
at 97–99), but “a person is not replaced when another employee is assigned to perform the
plaintiff’s duties in addition to other duties, or when the work is redistributed among existing
employees already performing related work.” Love v. Elec. Power Bd. of Chattanooga, 392 Fed.
Appx. 405, 408 (6th Cir. 2010). When Plaintiff worked for Defendant, she worked anywhere from
38 to 50-plus hours a week. (Doc. 20-1, at 98). Liewert, on the other hand, is no longer even a fulltime employee for Defendant. (Doc. 20-1, at 97). Although she was previously a Clinical Affiliate,
Liewert left Defendant for a full-time position elsewhere but stayed on “per diem” status with
Defendant, meaning she would fill in every now and then on her days off from her new employer.
(Doc. 20-1, at 97). Liewert did not work for Defendant every week (Doc. 20-5, at 18) and when she
did she could only fill in when she was not working her full-time job. Evidence suggests she worked
no more than 120 hours for Defendant in 2011 and not much more than that in 2010. (Doc. 20-15,
at 38).
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Plaintiff has provided no evidence indicating Defendant hired any replacement for Plaintiff’s
position. Defendant has not hired another Clinical Affiliate. (Doc. 20-5, at 18; Doc 20-15, at 38).
Liewert fills in when she can, but “the doctors are just assuming [Plaintiff’s] duties themselves.”
(Doc. 20-15, at 39); see Love, 392 Fed. App’x at 408 (“a person is not replaced when ... the work
is redistributed among existing employees”). Even Plaintiff acknowledges Liewert is a per diem
employee who only fills in when she has time off from her full-time job, and Plaintiff has said she
does not believe anyone replaced her when she was terminated. (Doc. 20-1, at 98). In short, Plaintiff
cannot prove Defendant replaced her with a substantially younger employee because Defendant
never replaced Plaintiff at all.
More Favorable Treatment of Younger, Similarly Situated Employees
Plaintiff claims she can establish the fourth prong of her prima facie case because younger,
similarly situated employees were treated more favorably for confidentiality policy violations than
she was. (Doc. 23, at 4–5). Particularly, she supports her argument by suggesting younger employees
were offered progressive discipline rather than being terminated for confidentiality policy and
HIPAA violations. (Doc. 23, at 5).
To establish an employee as a suitable comparator, the plaintiff must show the employee to
be similarly situated to the plaintiff in “all relevant aspects.” Wright v. Murray Guard, Inc., 455 F.3d
702, 710 (6th Cir. 2006). For employees to be considered “similarly situated” under the fourth
McDonnell Douglas prong, they “must have engaged in acts of comparable seriousness.” Id. Courts
examine such factors as whether the individuals dealt with the same supervisor, were subject to the
same standards, and “engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them for it.” Id.
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Plaintiff argues younger employees have not been terminated for HIPAA violations, but
approximately half the employees Defendant has terminated for HIPAA violations were younger
than 40 years old at the time of their termination. (Doc. 20-23). From March 2007 through
December 2008, Defendant terminated four employees for improperly accessing family members’
appointments or medical records when they did not need the information to perform their jobs. (Doc.
20-4, at 72–73; Doc. 20-22). Three of those four employees were under 40 at the time they were
terminated. (Doc. 20-4, at 72–73; Doc. 20-22). For example, Angel Wilson, 24, was terminated for
accessing her family member’s appointment information because of a “family ordeal.” (Doc. 20-4,
at 73; Doc. 20-23). Plaintiff suggests three employees younger than her were issued final written
warnings rather than being terminated, and contends these situations were more similar to hers.
(Doc. 23, at 5). However, one of these employees inadvertently accessed the patient’s information,
one used an old lab report as scrap paper, and one called a patient’s wife because she was listed as
the patient’s emergency contact. (Doc. 27-1).
Plaintiff deliberately accessed family members’ medical information when it was not
required to perform her job. Regardless of age, individuals who intentionally accessed family
member information not required to do their jobs were terminated. (Doc. 20-4, at 72–73; Doc. 27-2).
Further, most of the individuals not terminated for HIPAA violations were older than 40 at the time
and therefore fall within ADEA’s protected class. (Doc. 27-1; 27-2). Plaintiff cannot establish
Defendant treated her less favorably than younger, similarly situated employees. For those reasons,
she has not established a prima facie case of age discrimination.
Defendant’s Legitimate, Nondiscriminatory Reason
Even if Plaintiff had been able to establish her prima facie case, that would merely shift a
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burden of production onto Defendant to articulate a legitimate, nondiscriminatory business reason
for terminating Plaintiff’s employment. Provenzano, 663 F.3d at 812. And it is not unlawful for an
employer to discharge an employee when it had good cause. 29 U.S.C. § 623(f)(3). Defendant
terminated Plaintiff’s employment for her numerous violations of HIPAA and its confidentiality
policies. As Plaintiff acknowledged many times, Defendant’s policies prohibited her from accessing
patient information not required to perform her job. (Doc. 20-6; Doc 20-7; Doc 20-9; Doc. 20-10;
see Doc. 20-1, at 31–38). Even if she had power of attorney for her mother or guardianship over her
sister, she still needed to go through a medical records request to access the information. (Doc. 20-4,
at 22). A HIPAA release form only authorizes the agent to execute an authorization to release
medical records on the individual’s behalf – not to personally access the information themselves on
hospital computers. (See Doc. 23-1, Appendix 5, at 7).
Once Plaintiff acknowledged she had not needed her mother’s or sister’s medical information
to perform her job (Doc. 20-1, at 77), a violation was established. In fact, multiple violations were
established, as records showed Plaintiff had improperly accessed her mother’s records a number of
times. (Doc. 23-3, at 21). Defendant’s confidentiality policies permit discipline up to and including
termination for such violations, as Plaintiff acknowledged numerous times. Further, the corrective
action policy allows management to bypass any steps in the disciplinary process at its discretion.
(Doc. 20-13, at 2). Defendant has satisfied its burden of production by showing it terminated
Plaintiff for a legitimate, nondiscriminatory reason: HIPAA and confidentiality policy violations.
Plaintiff’s Pretext Argument
At all times, the ultimate burden of persuasion remains on Plaintiff to prove age was the butfor cause of her termination. Gross, 129 S. Ct. At 2351. As Defendant satisfied its burden to
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articulate a legitimate, nondiscriminatory reason for its adverse employment action, the burden shifts
back to Plaintiff to show Defendant’s proffered reason is merely a pretext to mask discrimination.
Provenzano, 663 F.3d at 812. This can be shown three ways. Plaintiff can show Defendant’s
proffered reason (1) had no basis in fact, (2) did not actually motivate its action, or (3) was
insufficient to motivate the action. Harris v. Metro. Gov’t of Nashville and Davidson County, 594
F.3d 476, 486 (6th Cir. 2010).
Plaintiff cannot show pretext under the first theory because Defendant’s proffered reason
certainly had a factual basis – Plaintiff did in fact violate the confidentiality policy on numerous
occasions. She cannot show pretext under the second theory because Defendant took no adverse
employment action until Plaintiff confirmed she had in fact improperly accessed patient records.
(Doc. 20-15, at 9). Plaintiff supports her pretext argument by claiming Defendant’s reasons for
terminating her employment were insufficient. (Doc. 23, at 6–7).
Plaintiffs may show insufficiency – and by extension, pretext – by offering evidence the
defendant-employer had never before discharged an employee for the same conduct. Godfredson
v. Hess & Clark, Inc., 173 F.3d 365, 373. In this case, no evidence establishes that. In fact, evidence
indicates the opposite. Multiple employees were discharged violating HIPAA and the confidentiality
policy – the same reasons as Plaintiff. (Doc. 27, at 2; Doc. 27-2).
Insufficiency may also be established with evidence showing “that other employees,
particularly employees not in the protected class, were not fired even though they engaged in
substantially identical conduct to that which the employer contends motivated its discharge of the
plaintiff.” Rutherford v. Britthaven, Inc., 2011 U.S. App. LEXIS 25806, at *10 (6th Cir. 2011).
Evidence does not establish this, either. Most of the employees not terminated for HIPAA violations
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actually fall within the protected class (Doc.20-22; Doc. 27-1; Doc. 27-2), and every employee who
improperly accessed family medical files was terminated regardless of their age. (Doc. 27-2). A
plaintiff’s “own subjective view” that her prior job performance made termination irrational does
not suggest age was the but-for cause of her termination when she repeatedly breached Defendant’s
confidentiality policy. See Green v. Fid. Invs., 374 Fed. App’x. 573, 575–77 (6th Cir. 2010).
Plaintiff argues she should not have been terminated because in 2007, her supervisor told her
she could access her mother’s stress test results. (Doc. 23, at 6). According to Plaintiff, her mother
had a stress test performed in the cardiology department and asked Plaintiff about the results after
several weeks without receiving them. (Doc. 20-1, at 46–47). Plaintiff’s supervisor, Trapp, told
Plaintiff she could look up the stress test results and relay the information to her mother. (Doc. 20-1,
at 47). Critically, the stress test was performed by the cardiology department. As a cardiology
department employee, Plaintiff would have been permitted to access any patient’s stress test results
if they asked her about them. (Doc. 20-5, at 37–38). In 2007 when she had the stress test, Plaintiff’s
mother was a patient of the cardiology department. It was simply a coincidence that she happened
to be Plaintiff’s mother as well. (Doc. 20-5, at 38). Plaintiff was permitted to access her mother’s
stress test result because it was required to perform her job. That is, a cardiology department patient
asked about test results and Plaintiff’s job required her to answer. This did not give Plaintiff
permission to access her mother’s unrelated medical records, and certainly did not give her
permission to access her sister’s medical records unless she needed the information to perform her
job.
No evidence suggests Defendant fired Plaintiff because of her age and used the HIPAA
violation as a pretext to mask impermissible discrimination. Lancaster did not even know Plaintiff’s
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age at the time of termination (Doc. 20-4, at 76–77), and Hammer only knew Plaintiff’s age because
he had examined her personnel file as human resources director so he could consult with local
counsel to ensure Defendant conducted the termination properly. (Doc. 20-15, at 7). Plaintiff
violated Defendant’s policy and HIPAA, and Defendant treated Plaintiff just like everyone else who
improperly accessed family medical records. Plaintiff has not established a genuine issue of material
fact and has not shown sufficient evidence from which a jury could reasonably find for her. See
Anderson, 477 U.S. at 249. Therefore, the Court grants Defendant’s Motion for Summary Judgment
on Plaintiff’s ADEA claim.
Disability Discrimination Claim
The ADA prohibits “excluding or otherwise denying equal jobs or benefits to a qualified
individual because of the known disability of an individual with whom the qualified individual is
known to have a relationship or association.” 42 U.S.C. § 12112(b)(4). In this case, Plaintiff alleges
Defendant discriminated against her based on her association with her sister, who has Downs
Syndrome. (Doc. 1-1, at 7; Doc. 20-1, at 12). These “association discrimination” claims fall under
one of three theories. Stansberry v. Air Wisconsin Airlines Corp., 2011 U.S. App. LEXIS 13659, at
*9-10 (6th Cir. 2011).
The first theory – an expense theory – covers employees subjected to adverse employment
actions based on an “association with a disabled individual covered under the employer’s health
plan, which is costly to the employer.” Id. at *10. In the second theory – disability by association
– plaintiffs have suffered an adverse employment action based on an employer’s fear its employee
may contract a disability, either directly from the person with whom the employee is associated (i.e.,
HIV) or due to a genetic predisposition to develop the same disabilities the employee’s relatives
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have. Id. The third association discrimination theory – distraction theory – covers discrimination
against an employee who is “somewhat inattentive at work because of the disability of someone with
whom he or she is associated.” Id. Plaintiff appears to bring her ADA claim under the distraction
theory. See (Doc. 1-1, at paragraph 7).
In Stansberry, the Sixth Circuit adopted Title VII’s McDonnell Douglas burden shifting
analysis for associational discrimination claims. 2011 U.S. App. LEXIS 13659 at *11. Like all
McDonnell-Douglas-based tests, the plaintiff must first establish a prima facie case, which shifts a
burden of production to the defendant to articulate a legitimate, nondiscriminatory reason for the
action, after which the plaintiff must show the proffered reason is a pretext to mask discrimination.
See id. at *10–15.
Plaintiff’s Prima Facie Case
To establish a prima facie case, Plaintiff must establish four elements: (1) She was qualified
for the position; (2) she was subject to an adverse employment action; (3) she was known to be
associated with a disabled individual; and (4) the adverse employment action occurred under
circumstances raising a reasonable inference that the relative’s disability was a determining factor
in the decision. Id. at *11–12. Defendant argues Plaintiff cannot establish the third and fourth
prongs of her prima facie case.
Knowledge of Association with a Disabled Individual
Plaintiff has not provided evidence showing she was known to be associated with a disabled
person. Lancaster and Hammer both testified they had no knowledge Plaintiff’s sister has Downs
Syndrome. (Doc. 20-4, at 77); (Doc. 20-15, at 41). Plaintiff testified that prior to her termination
meeting, she had never discussed her disabled sister (or anything else, for that matter) with
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Lancaster. (Doc. 20-1, at 81–82). She could not recall if Hammer had been involved in a
conversation about putting her sister on her health insurance. (Doc. 20-1, at 81–82). While she did
discuss her sister’s disability with co-workers and the physicians in her department, Plaintiff testified
she had no knowledge whether they had relayed the information to Lancaster or Hammer. (Doc. 201, at 92–93).
Plaintiff contends genuine issues of material fact exist regarding Defendant’s knowledge of
her association with a disabled person because Plaintiff indicated her sister was disabled at the
termination meeting. (Doc. 23, at 8). All parties agree, however, that the termination paperwork had
already been prepared and was on the table during the meeting. (Doc. 20-4, at 19; Doc. 20-1, at 108).
Further, though Plaintiff suggests otherwise, Hammer did not testify that no disciplinary decision
had been made until the meeting. Rather, he testified Plaintiff was allowed to give her side of the
story. (Doc. 20-15, at 7). Once Plaintiff gave her side of the story, it was clear she had violated
Defendant’s policies and HIPAA and the termination paperwork was executed. (Doc. 20-15, at 9).
Because Plaintiff has offered no evidence showing Defendant knew she was associated with a
disabled individual, she cannot satisfy the third prong of her prima facie case.
Reasonable Inference Disability was a Determining Factor
Even if Plaintiff could show Defendant knew she was associated with a disabled individual,
she cannot establish the fourth prong of her prima facie case. The circumstances do not raise a
reasonable inference that her sister’s disability was a determinative factor in Defendant’s decision
to terminate her employment. See Stansberry, 2011 U.S. App. LEXIS 13659 at *11–12. Where there
is evidence a plaintiff is not satisfactorily performing his or her job, there is no reasonable inference
that an associational disability is a determining factor in termination decisions. See id. at *13–16
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(affirming summary judgment for defendant where evidence showed the plaintiff was not
performing satisfactorily, even though his wife’s condition worsened immediately prior to
termination and his poor job performance was likely related to his wife’s illness). Plaintiff violated
Defendant’s confidentiality policy, providing a legitimate, nondiscriminatory reason to terminate
her. This does not raise an inference that her sister’s disability was a determining factor in
Defendant’s decision to terminate Plaintiff.
Plaintiff additionally argues circumstances raise a reasonable inference that her sister’s
disability was a determining factor because some of her physician-supervisors complained about her
sister’s disability distracting her from her work. (Doc. 23, at 9). However, even if these physicians
had concerns, Plaintiff provides no evidence they conveyed these concerns to the decision-makers
in this case. Hammer testified he had no knowledge of any physician concerns regarding Plaintiff.
(Doc. 20-15, at 37). Plaintiff’s supervisor testified she did not share any information regarding
Plaintiff’s family with Hammer or Lancaster. (Doc. 20-5, at 41). She further testified that the
decision to terminate Plaintiff was taken completely out of the cardiology department’s hands,
meaning the physicians played no role in it. (Doc. 20-5, at 44). Even Plaintiff herself indicates she
does not know whether any of the physicians relayed their concerns to the decision-makers. (Doc.
20-1, at 92–94).
Because Plaintiff violated Defendant’s policies and has not shown evidence raising a
reasonable inference that her sister’s disability at all influenced – let alone was a determining factor
in – the decision to terminate her, she cannot satisfy the fourth prong of her prima facie case.
Defendant’s Legitimate, Nondiscriminatory Reason
Even if Plaintiff could establish her prima facie case, she would merely shift a burden of
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production to Defendant. For the reasons discussed under the ADEA analysis, Defendant articulated
a legitimate, nondiscriminatory reason for Plaintiff’s employment: her multiple HIPAA and
confidentiality policy violations. This satisfies Defendant’s burden of production and shifts the
burden back to Plaintiff to demonstrate pretext.
Plaintiff’s Pretext Argument
Like under the ADEA, a plaintiff can show a defendant’s proffered reason is pretext for
disability discrimination by showing it (1) has no basis in fact, (2) did not actually motivate its
decision, or (3) was never used in the past to discharge an employee. Taylor v. Art. Iron, Inc., 2002
U.S. Dist. LEXIS 17557, at *35–36 (N.D. Ohio 2002). The plaintiff “must produce enough evidence
that a jury could reasonably reject the employer’s explanation for its decisions.” Kocsis v. MultiCare Mgmt., 97 F.3d 876, 883 (6th Cir. 1996). Plaintiff did violate Defendant’s policy, and
Defendant terminated her employment as soon as Plaintiff failed to provide evidence she had not
violated the policy. (Doc. 20-4, at 19). The policy permitted disciplinary action up to and including
termination. (Doc.20-10; Doc. 20-1, at 32). Additionally, every employee who improperly accessed
a family member’s medical records was terminated regardless of age. (Doc. 27-2). Plaintiff has not
provided any evidence Defendant merely used her multiple policy violations as a pretext to
terminate her employment because of her sister’s disability. The Court therefore grants Defendant’s
Motion for Summary Judgment on Plaintiff’s associational discrimination claim.
Intentional Infliction of Emotional Distress Claim
To establish her claim for IIED under Ohio law, Plaintiff must prove (1) Defendant acted
intending to cause emotional distress (or knew or should have known its actions would result in
serious emotional distress) to Plaintiff, (2) Defendant’s conduct was so extreme and outrageous as
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to go beyond all possible bounds of decency, (3) Defendant’s actions proximately caused Plaintiff’s
psychic injury, and (4) Plaintiff’s mental anguish is “serious and of a nature that no reasonable
[person] could be expected to endure it.” Kimmel v. Lowe’s, Inc., 2011 Ohio 28, ¶ 13 (Ohio Ct. App.
2011) (internal citations omitted).“To say that Ohio courts narrowly define ‘extreme and outrageous
conduct’ would be something of an understatement.” Godfredson v. Hess & Clark, Inc., 173 F.3d
365, 376 (6th Cir. 1999). A claim fails when based on “mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities.” Yeager v. Local Union 20, 6 Ohio St.3d 369, 375 (1983).
Indeed, courts only find liability where the defendant’s conduct is regarded as “atrocious, and utterly
intolerable in civilized community.” Id.
Plaintiff clarified the basis for her IIED claim in her deposition. (Doc. 20-1, at 130, 140–42).
Plaintiff stated Defendant terminated her employment without offering her a disciplinary process,
told her she “could not set foot” on Defendant’s grounds, and could not apply for a job in the
ProMedica Healthcare System – leaving her few places in the Toledo area to apply for work as a
nurse. (Doc. 20-1, at 130).
Defendant’s corrective action policy reserves to management the right to bypass steps in its
disciplinary process (Doc. 20-13, at 2), and Plaintiff acknowledged that any confidentiality policy
violation could result in discipline up to and including termination. (Doc. 20-1, at 31–32; Doc. 2010). Thus, Defendant did not engage in extreme or outrageous behavior by terminating her for
violating the policy. Furthermore, “every Toledo Clinic employee terminated for a HIPAA violation
. . . is informed that he/she may only step foot on Toledo Clinic property as a patient or in support
of a patient, such as a family member.” (Doc. 27-4). It is a requirement Defendant applies to all
involuntarily terminated employees. (Doc. 27-4). And Defendant was also simply following its
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policies by informing Plaintiff she could never work for ProMedica again. (Doc. 20-4, at 22-23).
Termination alone – even when actually based on discrimination – does not constitute extreme and
outrageous conduct unless the plaintiff can prove something more. Godfredson, 173 F.3d at 376.
Otherwise, every discrimination claim would automatically become an IIED action. Id. Defendant
merely applied its policies to Plaintiff the same way it applies them to every terminated employee,
and Plaintiff certainly cannot show this conduct was “atrocious, and utterly intolerable in civilized
community.” Yeager, 6 Ohio St.3d at 375.
Even if Plaintiff could show extreme and outrageous conduct on Defendant’s part, she would
still have to show her injury is severe enough to establish an IIED claim. To do so, Plaintiff must
show that a reasonable, normally constituted person would be unable to cope adequately with the
mental distress generated by the case’s circumstances. Godfredson, 173 F.3d at 376. Here, Plaintiff
cannot establish a severe enough psychic injury. She states she has lost confidence, feels like a
failure, has trouble sleeping, and has dreamt about the event. (Doc. 20-1, at 140). Although she was
prescribed Zoloft for panic attacks, she never sought psychiatric treatment for her alleged injuries.
(Doc. 20-1, at 141). Additionally, despite her alleged trouble sleeping, Plaintiff never sought
professional help for her sleep issues. (Doc. 20-1, at 140).
To establish an IIED claim, Plaintiff must show her mental anguish is so serious no
reasonable person could be expected to endure it. Kimmel, 2011 Ohio 28 at ¶ 13. “The term ‘serious’
goes beyond a trifling mental disturbance, mere upset, or hurt feelings, as it describes an emotional
injury which is both severe and debilitating.” Godfredson, 173 F.3d at 376 (quoting Reynolds v.
Wingers, Inc., 86 Ohio App. 3d 742, 748 (1993)). Plaintiff’s conditions are similar to those at issue
in Godfredson (upset stomach, loss of sleep, and financial concerns). See id. at 376. Like the
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conditions Godfredson experienced after being fired, Plaintiff’s conditions do not meet the level of
seriousness or severity required for an IIED claim.
Because Plaintiff cannot show Defendant engaged in extreme and outrageous behavior
beyond all possible bounds of decency when it terminated her employment after she violated its
confidentiality policy, and because even if she could, Plaintiff cannot establish a severe enough
emotional injury, the Court grants Defendant’s Motion for Summary Judgment on Plaintiff’s IIED
claim.
Negligent Hiring, Retention, and Supervision Claim
To establish her claim of negligent hiring, retention, and supervision under Ohio law, Plaintiff
must demonstrate (1) the existence of an employment relationship, (2) the employee Defendant
negligently hired or retained was incompetent, (3) Defendant had actual or constructive knowledge
of the employee’s incompetence, (4) the negligently hired or retained employee’s act or omission
caused Plaintiff’s injuries, and (5) Defendant’s negligence in hiring or retaining the employee
proximately caused Plaintiff’s injuries. Ruta v. Breckenridge-Remy Co., 69 Ohio St. 2d 66, 69 (1982).
Absent an underlying act of negligence by the employee who allegedly caused her injury or loss,
Plaintiff cannot establish her claim. Lehrner v. Safeco Insurance/American States Ins. Co., 171 Ohio
App. 3d 570, 583 (2007).
During her deposition, Plaintiff testified she intends to direct her negligent hiring, retention,
and supervision claim at Lancaster. (Doc. 20-1, at 103–04). Specifically, Plaintiff argues Lancaster
was incompetent in HIPAA, privacy law, and confidentiality policy training and alleges this
incompetence caused Lancaster to improperly terminate Plaintiff’s employment. (Doc. 20-1, at
103–04). Plaintiff also suggests the following: Lancaster’s investigation into the reported privacy
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violation should have been more thorough; Plaintiff should have been more involved in the
investigation; and Plaintiff should have been provided progressive discipline rather than being
terminated. (Doc. 20-1, at 104–05, 111–12).
Lancaster has received abundant training in HIPAA and privacy compliance. She has worked
for Defendant since 1977 and has served as privacy and compliance officer since 2003. (Doc. 20-4,
at 7–8). In addition to receiving HIPAA training when the law first went into effect, she has attended
seminars and has gone to educational sessions with legal counsel, and she continues to receive
training on an ongoing basis. (Doc. 20-4, at 8). This long history of training shows she was competent
in privacy law compliance issues. Further, the record reflects no previous complaints about
Lancaster’s competence in the areas under her supervision. At the very least, the lack of complaints
and Defendant’s efforts to continually train Lancaster on privacy law show Defendant had no actual
or constructive knowledge of incompetence, meaning it could not have negligently retained her in
the position.
Furthermore, despite Plaintiff’s assertions, Lancaster’s investigation into Plaintiff’s reported
policy violations was thorough enough to detect Plaintiff’s multiple violations of the confidentiality
policy. Upon receiving the anonymous complaint about Plaintiff, Lancaster investigated the computer
records and discovered Plaintiff had accessed her mother’s and sister’s medical records numerous
times. (Doc. 20-4, at 12–13; Doc. 23-3). In fact, the investigation revealed Plaintiff had accessed her
mother’s records at least 44 times and her sister’s records at least 28 times, without authorization.
(Doc. 23-3, at 21). Lancaster confirmed Plaintiff’s mother and sister were not cardiology department
patients (Doc. 20-4, at 12), and Lancaster investigated further and found no guardianship papers,
HIPAA releases, or power of attorney documents that would have allowed Plaintiff to request access
22
to the medical records. (Doc. 20-4, at 12–13; Doc. 27-3). At the meeting with Plaintiff, Plaintiff
admitted she had not needed to access the records for her job. (Doc 20-1, at 30, 77). Once Lancaster
discovered Plaintiff had improperly accessed patient information, the situation needed no further
investigation or involvement from Plaintiff. A confidentiality policy and HIPAA violation had been
established.
Regarding Plaintiff’s claim that Lancaster is incompetent because she did not recommend
progressive discipline, Defendant’s policy prohibiting employees from accessing patient medical
records other than as required to perform their jobs provides for discipline up to and including
termination. (Doc. 20-10; Doc. 20-1, at 32). The disciplinary process allows management to bypass
any steps in progressive termination at their discretion. (Doc. 20-13). Lancaster was well within the
bounds of competence in her job and well within the bounds of permitted disciplinary action by
terminating Plaintiff’s employment rather than issuing lesser discipline.
Because Plaintiff has not shown Lancaster committed an underlying act of negligence in the
circumstances that led to her termination, Lehrner, 171 Ohio App. 3d at 583, because Plaintiff cannot
show Lancaster incompetently performed her job as privacy and compliance officer, and because in
any event, no evidence shows Defendant had actual or constructive knowledge of any supposed
incompetence, the Court grants Defendant’s Motion for Summary Judgment on Plaintiff’s negligent
hiring, retention, or supervision claim.
Defamation Claim
To establish her defamation claim under Ohio law, Plaintiff must prove (1) a false and
defamatory statement made about her, (2) an unprivileged publication to a third party, (3) fault
amounting to at least negligence on Defendant’s part, and (4) either actionability of the statement
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irrespective of special harm or the existence of special harm caused by the publication. Akron-Canton
Waste Oil v. Safety-Kleen Oil Servs., 81 Ohio App. 3d 591, 601 (Ohio Ct. App. 1992). As defamation
claims require, before anything else, proof of a false and defamatory statement about the plaintiff,
truth is a well-established and absolute defense. Ohio Rev. Code § 2739.02; Ed Schorey & Sons v.
Francis, 75 Ohio St. 3d 433, 445 (1996).
Plaintiff alleges persons associated with Defendant made false, unprivileged statements
regarding her termination to third parties. (Doc. 1-1, at paragraph 26; Doc. 20-1, at 118–124).
However, Plaintiff submits no proof any person associated with Defendant made a statement
regarding her termination to anyone. As evidence, she points to former co-workers’ statements to her
several months after her termination. Both co-workers had heard from other co-workers that Plaintiff
was fired for a HIPAA violation. (Doc. 20-1, at 118). As Plaintiff claims to have told only her
husband and brother the reason for her termination, she believes this shows there “had obviously been
a leak from the office”. (Doc. 20-1, at 118). Plaintiff does not identify who she believes made a
statement, what the person said, or when the person said it (Doc. 20-1, at 119), and no deposition
testimony from Defendant’s employees indicates who may have made a statement regarding
Plaintiff’s termination.(See Doc. 20-4, at 74–75; Doc 20-15, at 20).
Plaintiff asks this Court to consider the argument that a defendant may be liable for
defamation when it knew or should have known the plaintiff would have to repeat its defamatory
statement. (Doc. 23, at 13–15). No Ohio court, however, “has yet embraced the idea that an alleged
victim of defamation can satisfy the publication element of the tort by publishing it himself, i.e. to
prospective employers.” Guy v. McCartney, 2002 Ohio 3035, ¶ 35 (Ohio Ct. App. 2002). Even if the
Court applied the self-publication doctrine, Plaintiff would still have to prove that she self-published
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false information to succeed with her claim, and she cannot prove falsity.
As Plaintiff points out, HIPAA does permit individuals to request access to their own health
information so they may inspect and obtain a copy of it, and the law allows the same rights to those
who serve as guardians or hold power of attorney. See 45 C.F.R. §§ 164.524(a), 164.502(g). But
HIPAA says nothing about allowing such people to directly access the information themselves on
hospital computers. Plaintiff admits knowing the appropriate process for requesting medical records
and in fact followed this process after her termination. (Doc. 20-1, at 28–29; see Doc. 23-1). Further,
Defendant’s policy clearly prohibits employees from accessing any medical information not required
to perform their job duties – allowing discipline up to termination for violations – and Plaintiff
acknowledged this policy on numerous occasions. (Doc. 20-6; Doc 20-7; Doc 20-9; Doc. 20-10; Doc
20-12). When Lancaster asked why Plaintiff had accessed her mother’s and sister’s medical
information, Plaintiff admitted she did not need the information to perform her job duties (Doc 20-1,
at 77).
Plaintiff plainly violated Defendant’s policy by accessing her mother’s and sister’s medical
records when it was not related to her job, and this resulted in her termination. Thus, even if Plaintiff
could show a statement was made by any individual associated with Defendant (or even if she had
to repeat the information herself), the words would merely have stated the true reason for Plaintiff’s
termination. This is a complete defense to the defamation claim. See Green v. Fid. Invs., 374 Fed.
App’x 573, 578 (6th Cir. 2010) (affirming summary judgment for the defendant where an allegedly
defamatory statement merely stated the substantively true reason for an employee’s termination). The
Court therefore grants Defendant’s Motion for Summary Judgment on Plaintiff’s defamation claim.
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Invasion of Privacy Claim
Plaintiff asserts a claim for invasion of privacy under two theories: portrayal in a false light
and intrusion into her private affairs. (Doc. 23, at 15, 16).
False Light
For Plaintiff to establish a claim for invasion of privacy under a false light theory, “[f]irst, the
statement made must be untrue.” Welling v. Weinfeld, 113 Ohio St. 3d 464, 471 (2007). Second, the
information must be “publicized,” which differs from “publication” in the defamation context. Id.
“Publication” includes any communication by the defendant to a third party, while a statement is
“publicized” only when the matter has been made public “by [the defendant] communicating it to the
public at large, or to so many persons that the matter must be regarded as substantially certain to
become public knowledge.” Id. Finally, (1) the false light in which the plaintiff was placed must be
highly offensive to a reasonable person, and (2) the defendant must have known or acted in reckless
disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be
placed. Id. at 473.
Plaintiff bases her false light invasion of privacy claim on the same premise as her defamation
claim. (Doc. 20-1, at 124–25). Like Plaintiff’s defamation claim, Plaintiff cannot establish a claim
for false light invasion of privacy because any statements made were substantively true. Plaintiff
alleges Defendant made malicious false statements pertaining to her (Doc. 23, at 15–16) when in fact,
no evidence shows Defendant made any statements pertaining to her, and if it did, Defendant merely
stated the truth: Plaintiff was fired for violating the confidentiality policy and HIPAA. See
Christiansen v. Pricer, 2010 Ohio 2718, ¶ 56–58 (Ohio Ct. App. 2010) (“statements did not place
26
appellant in a false light, given that the statements were literally true.”). Further, while a few hospital
workers may have discovered the reason for Plaintiff’s termination, this hardly counts as “the public
at large” or as “so many persons that the matter must be regarded as substantially certain to become
public knowledge.” Welling, 113 Ohio St. 3d at 471.
Intrusion into Private Affairs
To establish her claim for invasion of privacy based on intrusion into private affairs, Plaintiff
must show (1) the area intruded on was private and (2) the intrusion was unwarranted and would be
offensive or objectionable to a reasonable person. Miller v. Cincinnati Children’s Hosp. Med. Ctr.,
2006 Ohio App. LEXIS 3837, at **8 (Ohio Ct. App. 2006).
To support her claim, Plaintiff alleges one of the doctors who worked with her and supervised
her performance, Dr. Nahhas, discussed her personal relationships – namely, the situations with her
mother and sister. (Doc. 20-1, at 126). From around the time Plaintiff obtained guardianship of her
sister in 2008 until the time she was terminated in March 2010, Nahhas asked Plaintiff to have lunch
with him fewer than ten times, and at these lunches he would discuss her family situation with her,
though he never discussed his own family. (Doc. 20-1, at 126–27). Nahhas already knew there were
problems with Plaintiff’s mother, and he knew about issues between Plaintiff’s mother and sister
because she had “probably discussed the changing guardianship” with him. (Doc. 20-1, at 127).
Knowing the situation, Nahhas would ask Plaintiff how things were going and how her mother was
doing. (Doc. 20-1, at 128). This, Plaintiff claims, was an unwarranted intrusion into a private area and
would be offensive or objectionable to a reasonable person. (Doc. 23, at 16).
In Miller, the plaintiff brought an invasion of privacy claim against her employer alleging her
former supervisor made comments within the scope of employment concerning her “care of her
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infant granddaughter and her work performance as it was affected by her responsibilities for her
granddaughter.” 2006 Ohio. App. LEXIS 3837 at **2. Miller’s granddaughter had recently
undergone a heart transplant, a situation receiving media attention in which Miller actively
participated. Id. at **3. Miller sought guardianship of and eventually adopted her granddaughter. Id.
Complaints began to circulate about Miller’s work performance after she started “teleworking” to
manage her responsibilities for her granddaughter, so her supervisor discussed these issues with
Miller in weekly meetings. Id. at **3–4.
Affirming summary judgment for the defendant, the Ohio Court of Appeals found Miller’s
media involvement concerning her granddaughter had made the area no longer private because the
record failed to reflect evidence she had ever declined to discuss the child’s progress. Id. at **8.
Further, it found Miller’s supervisor had acted within the scope of his supervisory duties in discussing
Miller’s struggles to manage her job. Id. at **8–9. Even if not every comment about Miller’s
granddaughter was supervisory, “[e]vidence that [he] had acted within the scope of his supervisory
duties, coupled with Miller’s own publication of her granddaughter’s condition” showed there had
been no intrusion into a private area. Id. at **9.
Like Miller, Plaintiff discussed the information regarding her family problems with others at
work, making it no longer a private area for purposes of her invasion of privacy claim. While Plaintiff
never sought media attention, Nahhas already knew about the issues with her mother and sister
because she had discussed changing guardianship with him. (Doc. 20-1, at 127). Additionally,
deposition testimony from Plaintiff’s direct supervisor, Trapp, indicated Plaintiff gave co-workers
“many details about her mother and her sister and her family issues” and “went on a lot about
different things”, including her attempts to get guardianship of her sister. (Doc. 20-5, at 29–30).
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Further, Plaintiff indicated she never asked Nahhas to stop asking her about her family or told him
he made her uncomfortable by asking about her family. (Doc. 20-1, at 128).
Because Plaintiff told Nahhas about her attempts to get guardianship of her sister (even before
their lunches) and gave details at work about her family issues, Plaintiff herself published her family
information to others and cannot show Nahhas intruded on a private area by asking her about her
family. And like Miller’s supervisor inquiring about her granddaughter due to concerns about
Miller’s ability to handle her workload, it was within Nahhas’s supervisory duties to discuss
Plaintiff’s family if he believed it was negatively impacting her ability to perform her work.(See Doc.
20-1, at 87–88) (Plaintiff discusses a conversation with Nahhas regarding her work performance and
the way her responsibilities for her sister impacted it); (see Doc. 20-5, at 16) (Trapp says the doctors
were concerned about having enough coverage for their patients, but never prevented Plaintiff from
taking time off to care for her family).
Even if not every conversation Nahhas had with Plaintiff about her family was supervisory,
evidence that it was in the scope of his duties, coupled with Plaintiff’s own publication of her family
issues to Nahhas and other co-workers, shows there has been no intrusion into a private area. See
Miller, 2006 Ohio. App. LEXIS 3837 at **9. Because Nahhas’s comments did not intrude upon
Plaintiff’s private affairs, the Court need not address whether they would have offended a reasonable
person. See id. The Court grants Defendant’s Motion for Summary Judgment on Plaintiff’s invasion
of privacy claim.
CONCLUSION
Because no genuine issues of material fact exist on any of Plaintiff’s claims, and because
Defendant is entitled to judgment as a matter of law on each claim, the Court grants Defendant’s
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Motion for Summary Judgment. The case is dismissed.
IT IS SO ORDERED.
s/James R. Knepp II
United States Magistrate Judge
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