Anaissie v. University of Cincinnati Physicians, Inc.

Filing 82

ORDER granting 55 Motion for Summary Judgment. Signed by Judge Michael R. Barrett on 3/23/18. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Elias Anaissie,

Case No. 1:15cv701

Plaintiff,

Judge Michael R. Barrett

v.
University of Cincinnati Physicians, Inc.,
Defendant.
OPINION & ORDER
This matter is before the Court upon Defendant University of Cincinnati Physicians
Inc.’s Motion for Summary Judgment. (Doc. 55). Plaintiff Dr. Elias Anaissie filed a
Memorandum in Opposition (Doc. 75) and Defendant filed a Reply (Doc. 79).
I.

BACKGROUND
Defendant University of Cincinnati Physicians, Inc. employs physicians to perform

clinical work at the University of Cincinnati Medical Center (“UCMC”). (Doc. 55-2, Peter
Clayton Decl., ¶ 2). These physicians are also employed by the University of Cincinnati,
where they provide education and research services for the College of Medicine.
(Clayton Decl., ¶ 2). In the spring of 2012, Defendant recruited Plaintiff to lead the new
Bone Marrow Transplant Program that it was developing. (Clayton Decl., ¶ 4).
While the parties dispute which doctors Plaintiff had a conflict with, there is no
dispute that he had several conflicts his colleagues. (Doc. 52, Elias Anaissie Dep. at
136-137; Clayton Decl., ¶ 5).

By February of 2013, Plaintiff suspected that his

colleagues were trying to get rid of him. (Anaissie Dep. at 139-140). Initially, Plaintiff’s
direct supervisor was Dr. George Atweh, the Director of the Hematology Oncology

Division. (Doc. 55-1, Gregory Rouan Decl., ¶ 2). However, when Plaintiff complained
about reporting to Dr. Atweh, Dr. Gregory Rouan, Department Chair for the Department of
Internal Medicine, was made Plaintiff’s direct supervisor.

(Rouan Decl., ¶ 5).

Dr.

Rouan had multiple meetings with Plaintiff in an attempt to allay his concerns that his
colleagues were trying to obstruct him or damage his reputation. (Rouan Decl., ¶ 3).
Despite these issues, Defendant continued to employ Plaintiff because it had spent a
significant amount of money to recruit Plaintiff and built the Bone Marrow Transplant
program around him. (Rouan Decl., ¶ 3).
In January of 2014, Dr. Rouan, Dr. Thomas Boat, the Dean of the College of
Medicine, Dr. Myles Pensak, Defendant’s CEO, and Lee Ann Liska, CEO for UCMC, sent
Plaintiff a letter stating:
UC Health and the [College of Medicine (“COM”)] expects all of its leaders
and faculty members to conduct themselves according to the RITE values –
respect, integrity, teamwork and excellence, as well as to follow University
of Cincinnati’s faculty guidelines. For your part, we ask that there be
personal understanding of the culture and hierarchy of UC Health and the
COM and to follow the RITE values. In addition, we need you to focus on
moving forward in a positive manner rather than dwelling on what has
happened in the past.
(Anaissie Dep., Ex. 21).
On February 12, 2014, Plaintiff sent an email to Dr. Rekha Chaudhary, Director of
the fellowship program. (Anaissie Dep., Ex. 22). Plaintiff stated that he was bringing to
Dr. Chaudhary’s attention the “continuous harassment for the past 12 mos and ongoing
(2 days ago) by Dr. Dan Flora, senior Hem/Onc fellow at the time that unsubstantiated
statements are presented as facts to senior leadership that I do not treat the fellows
appropriately and that I should therefore not be allowed to work with them.”

(Id.)

Plaintiff provided examples of “public attacks” made by Dr. Flora, and asked that Dr. Flora
2

not be assigned to work with him for the remainder of Dr. Flora’s fellowship. When
Plaintiff’s email was shared with Dr. Flora, he disagreed with Plaintiff’s account of what
had happened, and also asked to not work with Plaintiff in the future. (Rouan Decl., Ex.
4).
On February 22, 2014, Plaintiff sent an email to Dr. Rouan and Liska requesting a
meeting “to seek advice regarding a murder-for-hire offer against me brought to my
attention by the Cincinnati P.D. (CPD) on Sunday 2/16, pm and Wednesday 2/19, pm,
relayed to CPD by an informant who named the individual who approached him (a UCMC
PharmD).” (Rouan Decl., Ex. 5). Plaintiff explained: “In response to the PD detective
question if I ever had a problem with this PharmD, I stated that he had taken several
negative actions against me but without a response from me because I was fully aware
that he was very young and easily influenced by others.” (Id.) Plaintiff stated that “[m]y
wife and children are extremely concerned about my safety and bought me a pepper
spray to carry on me. I will also ask UC police to walk with me at night from Hoxworth to
the Eden parking, until my wife is assured by the CPD that this potential threat against my
life has been addressed.” (Id.)
On February 23, 2014, Plaintiff sent an email to Peter Clayton, Executive Director
for Business Administration for the Department of Internal Medicine. (Clayton Decl., Ex.
1). In part of the email, Plaintiff repeated the murder-for-hire allegations, but with more
detail:
Separately, murder-for- hire contract on my life was brought to my attention
by the Cincinnati Police department and UC police, courtesy a former
PharmD, unstable and with substance abuse issues, and who was exposed
to an intensive defamation campaign against me by his boss and by a few
Hem/Onc folks including Dr. Flora, who befriended this pharmD. I am
floored by this but in retrospect understand it well. Flora acted knowing
3

well he had support in IM and not holding him accountable is yet another
evidence of IM condoning his actions.
...and I am reminded in the letter drafted by Greg that I have to abide by the
RlTE values!
My wife and adult children are frightened to the point that I avoid any
discussion of the topic with them.
(Clayton Decl., Ex. 1). That same day, Plaintiff sent an email to Dr. Andrew Filak, the
Senior Associate Dean for Academic Affairs, informing him of the murder-for-hire plot and
explaining that “this individual was heavily influenced by an extensive and still ongoing
campaign of incitemnt [sic] against me and defamation of my character, a campaign in
which our fellowship program directors, Drs. Chaudhary and Smith were heavily involved
to the point of dragging two fellows (Drs. Darnell and particularly Dr. Flora) into it.”
(Anaissie Dep., Ex. 23). Plaintiff explained that Dr. Flora had been very active for
eighteen months in direct attempts at bullying him and “joining the campaign of
defamation of my character led by Drs. Atweh, Latif, Smith, Chaudhary.” (Id.)
On March 2, 2014, Plaintiff sent an email to Dr. Chaudhary and Dr. Frank Smith
informing them of the murder-for-hire plot.

(Anaissie Dep., Ex. 24)

Plaintiff also

explained: “As supported by evidence-based research, violent actions do not develop in a
vacuum but typically result from personal reasons (finance, emotional, etc.) or from
prolonged campaigns of incitement and defamation targeting groups (e.g. gays) or
individuals, to the point of pushing unstable individuals experiencing severe stress to
attempt violence.” (Id.) Plaintiff then stated:
As you know this PharmD witnessed and participated in an 18-mo long
campaign of defamation and obstruction against me and which intensified
preceding FACT inspection, incl. inciting this unstable individual to further
defame my character with senior UCMC leaders according to those he told
of the specific actions he was asked to take by senior Hem/Onc faculty.
4

Two senior fellows were also involved esp Dr Flora who hope will be held
accountable for his unprofessional behavior towards me in violation of
ACGME and UC RITE guidelines and values.
(Id.) After receiving this email, Dr. Chaudhary expressed concerns for her own safety to
Dr. Rouan. (Rouan Decl. ¶ 13).
On March 4, 2014, Dr. Rouan and Clayton met with Plaintiff and told him he was
being placed on a leave of absence. (Rouan Decl., ¶ 16). Dr. Rouan and Clayton also
handed Plaintiff a letter explaining that a third party attorney had been appointed to
investigate the allegations Plaintiff raised in the March 2, 2014 email to Dr. Chaudhary.
(Anaissie Dep., Ex. 9). The letter stated: “You will therefore take at least two weeks off
from work, or longer if necessary, for the purpose of undergoing investigation including
fitness-for-duty examination. This time off should also facilitate your cooperation with,
and participation in, the investigation.”

(Id.)

The letter also stated that Plaintiff’s

“complete cooperation with this investigation is expected.” (Id.) Plaintiff explains that
during the March 4, 2014 meeting, he told Dr. Rouan and Clayton that requiring him to
undergo a fitness-for-duty examination was discriminatory. (Anaissie Dep. at 247).
Steve Eberly was hired to investigate the issues raised by Plaintiff. Plaintiff spoke
to Eberly, but Plaintiff told Eberly that he needed his attorney to be present for their
face-to-face meeting. (Anaissie Dep. at 285). Plaintiff contacted an attorney, but that
attorney was out of town. (Anaissie Dep. at 242).
On March 10, 2014, Dr. Rouan and Dr. Boat sent Plaintiff a letter by e-mail in which
stated:
It is our understanding that you have deferred to meet with the investigator
until you first speak with counsel and you hope to do so today. We trust
you will be able to do so, so that you can give your prompt attention to this
matter. As stated in the March letter we believe your paid current leave
5

should facilitate your participation in the investigation and we expect your
prompt participation.
(Anaissie Dep., Ex. 26).
On March 11, 2014, Dr. Rouan responded to an email sent by Plaintiff:
Finally, it is our understanding that the investigator, Mr. Eberly, asked to
meet with you this past Friday. You declined because you wanted to first
speak with counsel and indicated that you hoped to speak with your
attorney on Monday. Apparently, you did not do so and have yet to commit
to time and date to meet with Mr. Eberly. It has now been week since you
were placed on paid leave and further delay is not acceptable. As we
originally noted, your paid leave should be facilitating your participation in
the investigation and your delay not only hampers this process but may also
create further delay in your return to work. UCP is directing you to meet
with Mr. Eberly on Wednesday March 12 or Thursday March 13, from 1:30
to 5:30. You are to contact Mr. Eberly today to confirm on which of those
two days you will meet with him. Your failure to follow these instructions
will be considered refusal, and will be treated accordingly.
(Anaissie Dep., Ex. 27).
On March 15, 2014, Plaintiff still had not met with Eberly or scheduled a time to
meet with him. Clayton sent Plaintiff an email asking Plaintiff to “promptly contact Mr.
Eberly to arrange a meeting with him.” (Anaissie Dep., Ex. 28). Clayton also extended
Plaintiff’s period of leave beyond the original two weeks. (Id.)
On March 17, 2014, Clayton called Plaintiff and asked him why he had not yet met
with Eberly. (Clayton Decl. ¶ 20). Plaintiff responded he was too busy buying a car and
spending time with his family. (Clayton Dep. at 127). Clayton maintains that Plaintiff
told him that he would not meet with Eberly, and that it would be difficult to complete the
investigation without him. (Clayton Decl. ¶ 20). However, Plaintiff disputes that he ever
refused to meet with Eberly. (Anaissie Dep. at 17). During the call, Plaintiff also told
Clayton that Defendant was violating a number of statutes, including HIPAA, OSHA and
the ADA. (Clayton Dep. at 107, 110). Plaintiff also told Clayton that he was meeting
6

with his attorney the next day. (Clayton Dep. at 129). However, it is not clear from the
record whether Plaintiff was meeting with his attorney about the investigation or the
claims he may have against Defendant.

Clayton’s notes from this phone call with

Plaintiff indicate that Plaintiff stated that “carnage will be inflicted by him w/his attorney”
and the “investigator is another violation of ADA.” (Clayton Dep., Ex. 20). Clayton’s
notes also show that Plaintiff stated the he “will sign contract with lawyer tomorrow [and]
will not change his mind.” (Id.) Clayton understood that to mean that Plaintiff would be
bringing litigation against Defendant. (Clayton Dep. at 125).
On March 18, 2014, Dr. Boat and Dr. Rouan sent a letter to Plaintiff terminating his
employment. (Anaissie Dep., Ex. 29).
Plaintiff brings the following claims: termination in violation of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) and Ohio law; denial of a reasonable
accommodation in violation of the ADA; fitness for duty exam in violation of the ADA; and
retaliation in violation of the ADA. This Court previously dismissed Plaintiff’s claims
alleging national origin and ancestry discrimination. (Doc. 14). Defendant moves for
dismissal of Plaintiff’s remaining claims.
II.

ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper “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.” The moving party has the burden of showing
an absence of evidence to support the non-moving party’s case.
Catrett, 477 U.S. 317, 325 (1986).

Celotex Corp. v.

Once the moving party has met its burden of

7

production, the non-moving party cannot rest on his pleadings, but must present
significant probative evidence in support of his complaint to defeat the motion for
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
B. Americans with Disability Act
The Americans with Disabilities Act, as amended by the Amendments Act of 2008
(“ADAAA”), makes it unlawful for an employer to “discriminate against a qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The
ADA defines the term “discriminate” to include “not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a
disability” unless the employer “can demonstrate that the accommodation would impose
an undue hardship.” 42 U.S.C. § 12112(b)(5)(A).
Plaintiff asserts four basis of liability under the ADA: (1) wrongful termination; (2)
failure to accommodate; (3) requiring a medical examination; and (4) retaliation.
Plaintiff has also brought claims for discrimination and retaliation under Ohio
Revised Code § 4112.02 and § 4112.99. Because Ohio's disability discrimination law
parallels the ADA, the same analytical framework applies to Plaintiff’s claims under Ohio
Revised Code § 4112.02. Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir.
2008) (citing Wysong v. Dow Chemical Co., 503 F.3d 441, 450 (6th Cir. 2007); City of
Columbus Civil Serv. Comm'n v. McGlone, 82 Ohio St.3d 569, 697 N.E.2d 204, 206-07
(1998)). Therefore, the analysis of Plaintiff’s ADA claims also resolves his state law
discrimination claims. Id. (citing Hedrick v. Western Reserve Care Sys., 355 F.3d 444,

8

452 n. 4 (6th Cir. 2004)).
C. Wrongful termination claim
Under the ADA, a plaintiff can prove a claim for discrimination based on wrongful
termination through direct or indirect evidence. Ferrari v. Ford Motor Company, 826
F.3d 885, 891 (6th Cir. 2016). Here, Plaintiff has not produced any direct evidence of
discrimination, and instead relies on indirect evidence. When analyzing a discrimination
claim based on indirect evidence of discrimination, the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) is used. Ferrari
v. Ford Motor Co., 826 F.3d 885, 891 (6th Cir. 2016) (citing Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1179-182 (6th Cir. 1996)).
Under this approach, the initial burden is on the plaintiff to make out a prima facie
case of discrimination by demonstrating that “(1) he or she is disabled; (2) otherwise
qualified for the position, with or without reasonable accommodation; (3) suffered an
adverse employment decision; (4) the employer knew or had reason to know of the
plaintiff's disability; and (5) the position remained open while the employer sought other
applicants or the disabled individual was replaced.” Barlia v. MWI Veterinary Supply,
Inc., No. 17-1185, 2018 WL 327448, at *4 (6th Cir. Jan. 9, 2018) (quoting Whitfield v.
Tennessee, 639 F.3d 253, 259 (6th Cir. 2011)).
If the plaintiff establishes a prima facie case of discrimination under the ADA, then
the burden shifts the defendant to offer a legitimate, nondiscriminatory reason for the
adverse employment action. Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099,
1105 (6th Cir. 2008). If the defendant makes that proffer, then the burden shifts back to
the plaintiff to show by a preponderance of the evidence that the defendant’s proffered

9

reason is merely a pretext for discrimination. Id.
1. Disabled
The ADA defines a “disability” as “a physical or mental impairment that
substantially limits one or more of the major life activities” of an individual. 42 U.S.C. §
12102(2)(B). A person may also be considered disabled under the ADA if they are
“regarded as having such an impairment.” 42 U.S.C. § 12102(2)(C). The ADA provides
that the definition of disability “shall be construed in favor of broad coverage of
individuals.” 42 U.S.C. § 12102(4)(A). 1
It is not clear whether Plaintiff is claiming that he was disabled during the time he
was employed by Defendant or Defendant regarded him as being disabled. Plaintiff
explains that he was diagnosed with mood disorder, was prescribed an anti-depressant
and was referred by Defendant to a psychiatrist. Plaintiff references evidence that in
May of 2013, he was diagnosed by his psychiatrist, Dr. Peirce Johnson, as having a mood

1

As the Sixth Circuit has explained, the law governing the definition of “disabled” under the
ADA has been recently altered:
Having concluded that the courts were defining “disability” too narrowly, Congress
amended the ADA in 2008 to state that the term should be construed “in favor of
broad coverage ..., to the maximum extent permitted by the [ADA's] terms.” 42
U.S.C. § 12102(4)(A); ADA Amendments Act (“ADAAA”), Pub. L. No. 110-325, § 2,
122 Stat. 3553 (2008). Moreover, Congress explicitly rejected a number of
standards formulated by the Supreme Court, such as the requirement that the
impairment be “permanent or long-term” to qualify as a disability under the ADA.
42 U.S.C. § 12102(4)(D) (“An impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when active.”); ADAAA §
2(b)(4) (stating that a purpose of ADAAA is to “reject ... standards enunciated by
the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534
U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002),” which included the requirement
that an impairment's impact be “permanent or long-term” to qualify as a
“substantial limitation”). Congress also cautioned that “the question of whether an
individual's impairment is a disability ... should not demand extensive analysis.”
ADAAA § 2(b)(5).
Barlia v. MWI Veterinary Supply, Inc., No. 17-1185, 2018 WL 327448, at *4 (6th Cir. Jan. 9, 2018).
10

disorder and attention deficit disorder. (Byrne Decl. ¶ 9). Plaintiff explains that in a
meeting on November 18, 2013, Plaintiff told Dr. Boat, Clayton, and Dr. Rouan that he
had depression. (Byrne Decl. ¶ 3). Plaintiff also references the testimony of Clayton
who stated that he was aware that Plaintiff was seeing a psychiatrist. (Doc. 73, Clayton
Dep. at 99).
As best as the Court can tell, Plaintiff is arguing that Defendant regarded him as
disabled based upon the impairment Plaintiff reported to Defendant: depression.
A regarded-as-disabled claim exists where an individual (1) “establishes that he or
she has been subjected to an action prohibited under [the ADA] because of an actual or
perceived physical or mental impairment whether or not the impairment limits or is
perceived to limit a major life activity” and (2) the impairment is not “transitory and minor.”
Barlia v. MWI Veterinary Supply, Inc., No. 17-1185, 2018 WL 327448, at *4 (6th Cir. Jan.
9, 2018) (quoting 42 U.S.C. § 12102(3)).
Plaintiff explains that Defendant regarded him as disabled because Defendant
believed he was substantially limited in the major life activities of interacting with others,
concentrating, thinking and working. These activities are considered major life activities
under the ADA regulations. See 29 C.F.R. § 1630.2(i). As evidence that Defendant
regarded him as being limited in these major life activities, Plaintiff points to the
Declaration of Clayton, which states that Plaintiff “had multiple conflicts with a variety of
colleagues,” and there were complaints about the way in which Plaintiff “interacted with
others.” (Doc. 55-2, Clayton Decl., ¶ 5). Plaintiff also points to the Declaration of Dr.
Rouan, which states that they were concerned that Plaintiff “may not have the ability to
provide the type of focus and cognitive thinking required in his job because of the toll the

11

alleged murder for hire plot was taking on him.” (Doc. 55-1, Rouan Decl., ¶ 15).
The Sixth Circuit has recently reiterated that under the post-amendment ADA, an
“employer’s perception that health problems are adversely affecting an employee’s job
performance is not tantamount to regarding that employee as disabled.” Pena v. City of
Flushing, 651 F. App'x 415, 420 (6th Cir. 2016) (quoting Sullivan v. River Valley Sch.
Dist., 197 F.3d 804, 810 (6th 1999)). Moreover, a fitness for duty examination “ordered
for valid reasons can neither count as an adverse job action nor prove discrimination.”
Id. at 422 (quoting Sullivan, 197 F.3d at 813). Notably, Plaintiff has not questioned
whether Defendant’s decision to order him to undergo a fitness for duty exam was for a
valid reason. In fact, Plaintiff avoids this line of cases, presumably because it is fatal to
his claim. As the Sixth Circuit has explained: “[a] request that an employee obtain a
medical exam may signal that an employee’s job performance is suffering, but that cannot
itself prove perception of a disability because it does not prove that the employer
perceives the employee to have an impairment that substantially limits one or more of the
employee’s major life activities.” Id. at 420 (quoting Sullivan, 197 F.3d at 811).
However, even assuming that Plaintiff has set forth a prima facie case of
discrimination, the Court concludes that Plaintiff has not carried his burden in showing
that Defendant’s proffered reason for his termination was pretext for discrimination.
2. Pretext
As the Sixth Circuit has recently re-iterated: “To survive a motion for summary
judgment, [a plantiff] need not prove that [the defendant’s] stated reason is pretextual;
rather, [a plaintiff] must ‘prove only enough to create a genuine issue as to whether the
rationale is pretextual.’” Barlia v. MWI Veterinary Supply, Inc., No. 17-1185, 2018 WL

12

327448, at *6 (6th Cir. Jan. 9, 2018) (quoting Whitfield, 639 F.3d at 260). A plaintiff can
meet this burden by showing one of three things: “(1) that the proffered reasons had no
basis in fact, (2) that the proffered reasons did not actually motivate the employer's action,
or (3) that they were insufficient to motivate the employer's action.” Id. (quoting Ferrari,
826 F.3d at 895).
Defendant explains that it had a legitimate reason for terminating Plaintiff:
insubordination after more than a year of being disruptive and causing multiple conflicts.
To begin, Plaintiff points out that he was terminated for insubordination, not the
conflicts he had with his colleagues. Based on the testimony of Clayton, this is correct.
(Doc. 73, Clayton Dep. at 123). Plaintiff then clarifies that he was allegedly terminated
for two instances of insubordination: failure to undergo a fitness-for-duty evaluation and
the failure to meet with Eberly.

Plaintiff argues that these claimed instances of

insubordination have no basis in fact.
Plaintiff points out that he met twice with Dr. Bressler, who was selected by
Defendant to conduct Plaintiff’s fitness-for-duty examination. Plaintiff admits that he
missed the first appointment with Dr. Bressler, but states that Defendant does not have a
policy in place which would indicate that missing an appointment is insubordination.
As explained above, a fitness for duty examination “ordered for valid reasons can
neither count as an adverse job action nor prove discrimination.”

Pena v. City of

Flushing, 651 F. App'x. at 422 (quoting Sullivan, 197 F.3d at 813). Employers may
“requir[e] mental and physical exams as a precondition to returning to work.” Id. Both
before and after the 2008 Amendments to the ADA, the Sixth Circuit has “upheld a finding
of insubordination for refusing to submit to such exams.” Id. (quoting Sullivan, 197 F.3d

13

at 812).
Setting aside the fitness-for-duty examination, Plaintiff acknowledges that he
never met with Eberly. (Anaissie Dep. at 283). Instead, Plaintiff explains that he did
have two telephone calls with Eberly. Plaintiff also emphasizes that he never told Eberly
that he refused to meet with him, and Defendant knew that the only reason that he had not
met with Eberly was because Plaintiff’s attorney was not available. This is does not carry
Plaintiff’s burden of showing Defendant’s reason for termination is pretextual.
On March 4, 2014, Dr. Rouan and Clayton met with Plaintiff and handed him a
letter which stated that Plaintiff’s “complete cooperation with this investigation is
expected.” (Anaissie Dep., Ex. 9). Plaintiff was given two weeks of paid leave to
participate in the investigation. (Anaissie Dep., Ex. 9). By March 11, 2014, Plaintiff had
not scheduled a meeting with Eberly, and Dr. Rouan informed Plaintiff:
UCP is directing you to meet with Mr. Eberly on Wednesday March 12 or
Thursday March 13, from 1:30 to 5:30. You are to contact Mr. Eberly today
to confirm on which of those two days you will meet with him. Your failure
to follow these instructions will be considered refusal, and will be treated
accordingly.
(Anaissie Dep., Ex. 27). When Plaintiff failed to meet with Eberly on March 12 or March
13, Clayton extended Plaintiff’s period of leave and asked Plaintiff to “promptly contact
Mr. Eberly to arrange a meeting with him.” (Anaissie Dep., Ex. 28). On March 17, 2014,
Plaintiff still had not met with Eberly. When Clayton called Plaintiff to ask why, Plaintiff
responded he was too busy buying a car and spending time with his family. (Clayton
Dep. at 127). Clayton maintains that in this conversation Plaintiff told him that he would
not meet with Eberly. However, Plaintiff disputes that he ever refused to meet with
Eberly.

14

While Plaintiff attempts to cast doubt on Clayton’s interpretation of their March 17th
conversation, in his own deposition, Plaintiff confirmed that he did not plan to meet with
Eberly himself, but planned to have his attorney be “in touch with” Eberly. (Anaissie Dep.
at 313-14). While Plaintiff did make several references to meeting with an attorney in the
conversation with Clayton, Clayton stated that he interpreted Plaintiff’s statements as a
threat Plaintiff was going to sue Defendant. (Clayton Dep. at 135). Plaintiff also told
Clayton that Defendant created a “joke” of an extreme urgency to complete the
investigation within a two-week period.

(Clayton Dep. at 118).

Moreover, it is

undisputed that even after Defendant had extended Plaintiff’s period of paid leave beyond
the original two weeks, Plaintiff had yet to schedule a date for a meeting with Eberly, with
or without his attorney. Based on this failure to meet within the time period dedicated for
the investigation, despite Defendant’s repeated demands to do so, Defendant was
entitled to view Plaintiff’s lack of cooperation in the investigation as insubordination.
Plaintiff has not created a genuine issue of material fact regarding whether Defendant’s
reason for terminating Plaintiff was insufficient to motivate Defendant’s decision to
terminate him.
As additional evidence of pretext, Plaintiff points out that Defendant failed to follow
its progressive discipline policy.

Plaintiff explains that he only received verbal

counseling for disruptive behavior prior to his termination. However, as Plaintiff himself
has argued, Plaintiff was not terminated for disruptive behavior, but was terminated for
insubordination.
Although Plaintiff has not made out a prima facie case of disability discrimination
based on his termination, the Court holds that, even assuming that he had, Defendant

15

has offered a legitimate reason for terminating Plaintiff, and Plaintiff, in turn, has not
created a genuine issue as to whether the rationale is pretextual. Therefore, Defendant
is entitled to summary judgment on Plaintiff’s claim of wrongful termination under the ADA
and Ohio law.
D. Failure to accommodate claim
“Failure to provide a reasonable accommodation to a disabled, but otherwise
qualified, person in the workplace is deemed unlawful discrimination under the ADA.”
Williams v. AT & T Mobility Servs. LLC, 847 F.3d 384, 391 (6th Cir. 2017) (citing 42 U.S.C.
§ 12112(b)(5)(A); Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007)).
In order to establish a prima facie case of disability discrimination under the ADA
for failure to accommodate, a plaintiff must show that: “(1) she is disabled within the
meaning of the Act; (2) she is otherwise qualified for the position, with or without
reasonable accommodation; (3) her employer knew or had reason to know about her
disability; (4) she requested an accommodation; and (5) the employer failed to provide
the necessary accommodation.” Mosby-Meachem v. Memphis Light, Gas & Water Div.,
No. 17-5483, 2018 WL 988895, at *4 (6th Cir. Feb. 21, 2018) (quoting Johnson v.
Cleveland City Sch. Dist., 443 Fed.Appx. 974, 982-83 (6th Cir. 2011)). “Once a plaintiff
establishes a prima facie case, the burden shifts to the employer to demonstrate that any
particular accommodation would impose an undue hardship on the employer.” Id.
Plaintiff faces two hurtles in establishing a prima facie case of failure to
accommodate. First, the Sixth Circuit has explained that if an employee is “regarded as”
disabled, it would “obviate [the employer’s] obligation to reasonably accommodate [the
employee].” Workman v. Frito–Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999); see also

16

Baker v. Windsor Republic Doors, 414 Fed.Appx. 764, 776 (6th Cir. 2011) (“Despite the
lack of analytical support for Workman's assertion that a finding of ‘regarded-as' disability
would obviate an employer's responsibility to offer reasonable accommodation to an
employee, that holding remains the ‘law of the circuit’ and binds this panel.”); 42 U.S.C. §
12201(h) (explaining that an employer “need not provide a reasonable accommodation . .
. to an individual who meets the definition of disability in section 12102(1) of this title solely
under subparagraph (C)”; 29 C.F.R. § 1630.2(o)(4) (explaining that accommodations are
required for disabled individuals with actual impairments or records thereof, but not for
individuals “regarded as” disabled).
Second, even if Plaintiff’s claim should have been construed as an actual-disability
claim, the burden remains on the employee to request an accommodation. Lockard v.
Gen. Motors Corp., 52 F. App'x 782, 788 (6th Cir. 2002). Plaintiff has failed to present
evidence that he sought an accommodation. Where an employee fails to request a
reasonable accommodation, employer’s duty to engage in an interactive search for a
reasonable accommodation is never triggered. Id. Therefore, Plaintiff has failed to
establish a prima facie case of a failure to accommodate; and Defendant is entitled to
summary judgment on Plaintiff’s claim of failure to accommodate under the ADA and Ohio
law.
E. Medical examination claim
The ADA prohibits employers from “requir[ing] a medical examination” or “mak[ing]
inquiries of an employee as to whether such employee is an individual with a disability or
as to the nature or severity of the disability, unless such examination or inquiry is shown to
be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A).

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This provision applies to both disabled and nondisabled employees. Lee v. City of
Columbus, Ohio, 636 F.3d 245, 252 (6th Cir. 2011) (“A plaintiff need not prove that he or
she has a disability in order to contest an allegedly improper medical inquiry under 42
U.S.C. § 12112(d).”).
“An employer's request for a medical examination is job-related and consistent
with business necessity when: (1) the employee requests an accommodation; (2) the
employee's ability to perform the essential functions of the job is impaired; or (3) the
employee poses a direct threat to himself or others.” Denman v. Davey Tree Expert Co.,
266 Fed.Appx. 377, 379 (6th Cir. 2007) (citations omitted). There is evidence in the
record that Defendant had concerns about Plaintiff’s safety, the safety of those around
him, and whether he was able to care for his patients. (Clayton Decl. ¶ 13-15; Rouan
Decl. ¶ 14-16). Plaintiff’s only attempt to refute this evidence is testimony from one of
Plaintiff’s co-workers that Dr. Rouan told him that Plaintiff was going on leave because
they were investigating Plaintiff’s murder-for-hire claim. Plaintiff explains that this stated
reason for the investigation has nothing to do with whether Plaintiff could perform the
essential functions of his job. However, Defendant’s investigation was not limited to
whether Plaintiff could perform the essential functions of his job. Plaintiff had accused
his co-workers of being involved in a murder-for-hire plot against him. The most that can
be said about Dr. Rouan’s statement is that it failed to explain that the purpose of the
leave of absence was twofold. The statement does not show that Defendant’s request
for the fitness-for-duty exam was not job-related, or was inconsistent with business
necessity. Therefore, Defendant is entitled to summary judgment on Plaintiff’s claim
under 42 U.S.C. § 12112(d)(4)(A).

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F. Retaliation claim
The ADA provides: “No person shall discriminate against any individual because
such individual has opposed any act or practice made unlawful by this chapter or because
such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). “The
ADA is not, however, a catchall statute creating a cause of action for any workplace
retaliation, but protects individuals only from retaliation for engaging in, or aiding another
who engages in, activity covered by the ADA.” Rorrer v. City of Stow, 743 F.3d 1025,
1046 (6th Cir. 2014).
In the absence of direct evidence of retaliation, a claim of retaliation under the ADA
is analyzed using the McDonnell–Douglas burden-shifting framework. Id. (citing A.C. v.
Shelby Cnty. Bd. of Educ., 711 F.3d 687, 697 (6th Cir. 2013)). The plaintiff bears the
initial burden of establishing a prima facie case of retaliation, which requires a showing
that “(1) the plaintiff engaged in activity protected under the ADA; (2) the employer knew
of that activity; (3) the employer took an adverse action against plaintiff; and (4) there was
a causal connection between the protected activity and the adverse action.”

Id.

“Significantly, the causation prong requires [the plaintiff] to show but-for causation.”
Barlia v. MWI Veterinary Supply, Inc., No. 17-1185, 2018 WL 327448, at *8 (6th Cir. Jan.
9, 2018) (quoting Sharp v. Profitt, 674 Fed.Appx. 440, 450 (6th Cir. 2016)). If the plaintiff
meets this burden, the defendant must then articulate a legitimate, non-discriminatory
reason for the adverse employment action. Id. (citing Penny v. UPS, 128 F.3d 408, 417
(6th Cir. 1997). In the event this occurs, the burden shifts back to the plaintiff to show
that the proffered reason for the action was “merely pretext.” Id.

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This Court has recently re-iterated that “[a] retaliation claim cannot stand where an
employee refuses a proper request for a medical exam or medical inquiry under 42 U.S.C.
§ 12112(d)(4)(A).” Sloan v. Repacorp, Inc., No. 3:16-CV-161, 2018 WL 1070502, at *7
(S.D. Ohio Feb. 27, 2018) (collecting cases); see also Sullivan v. River Valley Sch. Dist.,
197 F.3d 804, 814 (6th Cir. 1999) (“[I]t was incumbent upon appellant to challenge [the
board's] actions through legal recourse, as appellant had done in the past, and not to
engage in misconduct and insubordination to enforce his rights.”) (alterations in original).
Plaintiff attempts to distinguish his claim by claiming that he was retaliated against
because he claims he told Defendant that it was discriminating against him in violation of
the ADA on March 4 and March 17. While Defendant disputes that Plaintiff accused
Defendant of violating the ADA on March 4th, the timing makes no difference.
“Although temporal proximity can demonstrate a causal connection for the
purposes of a prima facie case, it alone cannot establish pretext.” Williams v. AT&T
Mobility Servs. LLC, 847 F.3d 384, 396 (6th Cir. 2017) (citing Donald v. Sybra, Inc., 667
F.3d 757, 763 (6th Cir. 2012)). The Court has already concluded that Plaintiff failed to
create a genuine issue of material fact as to whether Defendant’s stated reason for his
termination – insubordination – was pretextual.

Therefore, Defendant is entitled to

summary judgment on Plaintiff’s claim of retaliation under the ADA and Ohio law.

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III.

CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1. Defendant University of Cincinnati Physicians Inc.’s Motion for Summary
Judgment (Doc. 55) is GRANTED; and
2. There appearing to be no more matters for decision before this Court, this
matter is CLOSED and TERMINATED from the active docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett
United States District Judge

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