Jeffery-Wolfert v. UC Health

Filing 15

ORDER granting in part 7 Motion to Dismiss for Failure to State a Claim; Plaintiff's IIED claim remains. Signed by Judge Michael R. Barrett on 2/14/17. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KIMBERLY JEFFERY-WOLFERT

CASE NO.: 1:16cv656

Plaintiff,
Judge Michael R. Barrett
v.
UC HEALTH,
Defendant.

OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s Amended
Complaint (Doc. 7). Plaintiff has filed a response (Doc. 10) and Defendant has filed a reply
(Doc. 13).
I.

BACKGROUND
For purposes of this Motion, the facts alleged in Plaintiff’s Amended Complaint are

accepted as true. From January 2013 – November 2015 Plaintiff was an Infection Preventionist
for Defendant. 1 (Doc. 3, ¶ 10). Plaintiff’s job included overseeing issues related to infection
prevention and outbreak investigations. (Id. at ¶ 12). In May 2015, Plaintiff was tasked with
beginning a comprehensive investigation of hospital acquired Stenotropomonas cases. (Id. at
¶¶ 13, 15).

Plaintiff’s initial review indicated a significant increase in cases in the neuro-

intensive care unit (“NSICU”) and a slight increase in other intensive care units. (Id. at ¶ 16-18).
Most of the cases involved bronchoscopy procedures, raising concerns about the bronchoscopy
cleaning process and travel ventilator contamination. (Id. at ¶¶ 19, 25). Further investigation led
1

Plaintiff began her employment at Drake, but transferred to the main campus in April 2014.

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to issues regarding used and possibly infected bronchoscopes being left in rooms after
procedures. (Id. at ¶ 38). Based upon these concerns, a formal complaint was made to the
Occupational Safety and Health Administration (“OSHA”), particularly in connection with the
transportation of used bronchoscopes. 2 At least one specific scope, Scope #11924, cultured
positive for Stenotropomonas in June 2015. (Id. ¶ 47). As a result, high level disinfection
procedures were implemented.

(Id. at ¶ 49).

While cases declined initially following

implementation, cases began to rise once again in August. (Id. at ¶ 53).

At least one more

scope, which had tested negative in June, tested positive in late September. (Id. at ¶ 60).
Plaintiff was concerned that not enough was being done to protect patients from exposure. (Id.).
Specifically, she was concerned that no reports were made to the Food and Drug Administration
(“FDA”), in the face of an obligation to do so. (Id. at ¶ 57). According to Plaintiff, risk
management was not fully informed either. (Id.).
Despite voicing these concerns to her supervisor, Dr. Sopirala, Plaintiff was told to
“please take care of it.” (Id. at ¶ 58). Her concerns continued to be ignored for fear of an audit.
(Id. at ¶ 59).

Feeling helpless in facing her ethical dilemma alone, Plaintiff met with an

employee assistance counselor. (Id. at ¶ 61). Following the counselor’s recommendation, she
contacted the hospital safety hotline and arranged a meeting with human resources personnel.
(Id. at ¶ 62). Her concerns continued to be largely ignored or downplayed and thus, Plaintiff did
not have the authority to take the necessary action to combat the infection outbreak. (Id. at ¶ 6364). Defendant also ignored the bronchoscope manufacturer’s instructions to use an alternative
method of sterilization, in part, due to costs. (Id. at ¶ 65-67).

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According to the Amended Complaint, used bronchoscopes were transported in cheap plastic Tupperware type
containers. (Id. at ¶ 40).

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After issuing further reports and recommendations, Plaintiff was told the issues would be
addressed. (Id. at ¶ 72-74). Dr. Sopirala remained hesitant to seek assistance from an outside
agency for fear of a hospital audit. (Id. at ¶ 77-78). In fact, Plaintiff was reprimanded and told
she was not to report to any outside agencies. (Id. at ¶ 80). Plaintiff then requested a meeting
with the nursing director who appeared shocked when Plaintiff provided her with information
regarding the investigation. (Id. at ¶ 82). Plaintiff was assured that the information would be
shared with Dr. Sopirala’s supervisor. (Id. at ¶ 84). Subsequently, Plaintiff was removed from
her role as investigator of the Stenotropomonas outbreak, along with several other projects. (Id.
at ¶¶ 84, 87).
On November 4, 2015, Plaintiff advised the Joint Commission for the Accreditation of
Healthcare Organizations (“JC”) of the situation, including the lack of responsiveness of
Defendant. 3 (Id. at ¶ 88). She also notified the health department. (Id.).
On November 13, 2015, Plaintiff submitted her two week notice of resignation. (Id. at
¶ 89).

Before leaving, Plaintiff attempted to meet with personnel one more time in order

emphasize the seriousness of the infection outbreak. (Id. at ¶ 90). She requested that an ad hoc
ethics committee be convened within her two-week notice period.

(Id at ¶ 90-92.).

That

afternoon, Plaintiff was told to turn over her badge and keys and was asked to leave the
premises. (Id. at ¶ 93).
As a result of the foregoing, Plaintiff alleges that she was subjected to a hostile work
environment. (Id. at ¶ 96-97). Despite having stellar performance evaluations in the past, she
began receiving negative evaluations, including being removed from projects. (Id. at ¶ 98). She
was also reprimanded for looking up her own medical records on the hospital’s computer system,

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According to the Amended Complaint, JC is an organization made up of individuals from the private medical
sector who develop and maintain standards of quality in medical facilities. (Doc. 3 at ¶ 88).

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being advised she would be terminated if there were further issues. (Id. at ¶ 99). In short,
Plaintiff alleges she was in constant fear of retaliation for doing her job. (Id. at ¶ 105).
Plaintiff brings the following claims: 1) retaliation; 2) hostile work environment; 3)
whistle blower violation pursuant to § 4113; 4) intentional infliction of emotional distress; and 5)
punitive damages. Defendant moves for dismissal of all of Plaintiff’s claims.
II.

STANDARD
When reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, this Court

must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Bassett v. Nat’l Collegiate
Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (internal quotations omitted). To properly state
a claim, a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]o survive a motion to dismiss, a
complaint must contain (1) ‘enough facts to state a claim to relief that is plausible,’ (2) more than
‘a formulaic recitation of a cause of action’s elements,’ and (3) allegations that suggest a ‘right to
relief above a speculative level.’” Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478, 488 (6th
Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
III.

ANALYSIS
1. Retaliation
Plaintiff brings claims for retaliation under Title VII, 42 U.S.C. 2000e et seq., 42 U.S.C.

§ 1981 and the Ohio Civil Rights Act, Ohio Revised Code § 4112.01, et seq. Claims brought

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under Title VII and Ohio’s anti-discrimination statute are evaluated under the same standard.
Thompson v. UHHS Richmond Heights Hosp., Inc., 372 Fed.Appx. 620, 623 (6th Cir.2010). To
establish a prima facie case of retaliation, Plaintiff must show: (1) she engaged in protected
activity, (2) Defendant was aware of the protected activity, (3) Defendant subsequently took an
employment action adverse to Plaintiff, and (4) a causal connection exists between the protected
activity and the adverse employment actions. Abbott v. Crown Motor Co., 348 F.3d 537, 542
(6th Cir.2003) (citing Strouss v. Michigan Dep't of Corr., 250 F.3d 336, 342 (6th Cir.2001);
Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000)).
Plaintiff alleges the protected activity in which she was engaged was her job. The Court
disagrees.
42 U.S.C.§ 2000e-2(a) in relevant part makes it unlawful for an employer to:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(1). 4 Accordingly, Plaintiff must establish that Defendant discriminated
against her as a result of one of the above, or in other words, the discrimination related to her
membership in a protected class. Plaintiff has failed to do so. Rather, Plaintiff argues, for
example, that she was retaliated against because she recommended reporting the infection
outbreak to the FDA and local health department. More generally, Plaintiff argues she was
retaliated against because she brought to light improper conduct on the part of Defendant. While
this might be true, Plaintiff has not alleged she was discriminated against because of her race,

4

Similarly, the Ohio anti-discrimination statute makes it unlawful for an employer to discriminate based upon race,
color, religion, sex, military status, national origin, disability, age, or ancestry. Ohio Rev. Code 4112.02(A).

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color, religion, sex, or national origin. Thus, under Title VII and the Ohio Revised Code,
Plaintiff’s retaliation claim fails as a matter of law. 5
2. Hostile Work Environment
Plaintiff also fails to state a claim for hostile work environment. Plaintiff generally
alleges that she faced daily criticism and hostility, and that Defendant’s actions created an
abusive work environment. As explained above, however, Title VII does not protect against all
forms of workplace hostility, only the same related to race, color, religion, sex, or national
origin. Accordingly, Plaintiff has failed to state a claim.
3. Whistle Blower Violation
Defendant argues Plaintiff’s claim under Ohio Revised Code § 4113.52 (“the
Whistleblower Act”) must be dismissed because it was filed beyond the statute of limitations –
180 days. Ohio Rev. Code § 4113.52(D).
Plaintiff resigned on November 13, 2015. (Doc. 3 at ¶ 89). Plaintiff does not allege any
violation after that date. 6 Yet, Plaintiff did not file her claim under the Whistleblower Act until
July 5, 2016 – more than 180 days after the alleged violation. Nor did she file her original
complaint within 180 days of her resignation.
Nevertheless, Plaintiff argues the statute of limitations did not begin to run on the date
Plaintiff resigned, but rather, on the date the EEOC issued a right to sue letter. The Sixth Circuit
has not specifically addressed this issue. Multiple other circuits, however, have determined that
filing an EEOC charge does not toll the statute of limitations for state tort claims arising from the

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Plaintiff argues she was constructively discharged. Because the Court concludes that Plaintiff fails to state a claim,
the Court need not address whether the constructive discharge doctrine applies.
6
Plaintiff arguably alleges a violation occurred after she requested that an ad hoc ethics committee be convened.
Plaintiff does not specify the exact date she did so, but it is undisputed that action occurred within her two-week
notice period. Even if the Court uses that date for purposes of a statute of limitations analysis, the result remains the
same.

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same underlying facts as the EEOC charge. See Castagna v. Luceno, 744 F.3d 254 (2d Cir.
2014); Juarez v. Ameritech Mobile Commc’ns, Inc., 957 F.2d 317, 323 (7th Cir. 1992); Arnold v.
United States, 816 F.2d 1306, 1313 (9th Cir.1987). For example, in Castagna, the Second
Circuit rejected the plaintiff’s judicial economy argument, holding that “there is no basis for
concluding that Congress intended that a civil rights claimant should be entitled to delay filing
any state tort claims during the EEOC’s consideration of a charge of discrimination.” Castagna,
744 F.3d at 258.
As the Second Circuit explained, this conclusion is in accord with the United States
Supreme Court’s decision in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, syllabus
(1975). In Johnson, the Court held that the filing of an EEOC charge does not toll the applicable
statute of limitations period for an action based on the same facts, instituted under 42 U.S.C.
§ 1981. Id. at 455. The Court explained that “[t]he legislative history of Title VII manifests a
congressional intent to allow an individual to pursue independently his rights under both Title
VII and other applicable and federal statutes.” Id. at 459. Thus, while the Court determined that
a plaintiff may ask a court to stay proceedings in the initial action until the EEOC’s
administrative review is complete, tolling was not warranted because the plaintiff always had “an
unfettered right” to pursue her tort claims. Id. at 465-66.
At least one district court in this circuit has also found that the filing of an EEOC claim
does not toll the statute of limitations for claims based on state law. See Macklin v. Turner, No.
1:03-cv-2347, 2005 WL 2211170, *3 (N.D. Ohio Sept. 9, 2005) (finding summary judgment
appropriate because plaintiff’s Ohio age discrimination claim was barred by the statute of
limitations).

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Considering the foregoing, the undersigned finds the Second Circuit’s opinion persuasive
and reaches the same conclusion. While Plaintiff’s retaliation and hostile work environment
claims pursuant to Title VII could not have been brought in this Court until the EEOC issued its
right to sue letter, the same cannot be said for Plaintiff’s state law tort claims.
Plaintiff had the right to bring her claim under the Ohio Whistleblower Act beginning on
November 13, 2015. She failed to do so within 180 days. Ohio Revised Code § 4113.52(D)
specifically provides that if an employer takes disciplinary or retaliatory action against an
employee, the employee may bring a civil action “within one hundred eighty days after the date
the disciplinary or retaliatory action was taken.” Ohio Rev. Code § 4113.52(D). The statute
does not include language with respect to tolling of the statute of limitations and thus, the Court
assumes it was the intent of the legislators not to provide for tolling under Ohio Revised Code
§ 4113.52. Plaintiff does not persuade the Court otherwise.
Instead, Plaintiff cites Pytlinski v. Brocar Prod. Inc., 94 Ohio St.3d 77 (2002). In
Pytlinski, however, the plaintiff’s claim was brought as a wrongful discharge under the public
policy exception to the at-will employment doctrine. Thus, the Supreme Court of Ohio held that
the 180-day statute of limitations set forth in the Whistleblower Act did not apply to the
common-law action brought by the plaintiff. In other words, the statute of limitations did not
apply because it was not a Whistleblower Act claim. Here, it is undisputed that Plaintiff brings
her claim under the Ohio Whistleblower Act. Thus, the facts in Pytlinski are inapposite.
Accordingly, Plaintiff’s Whistleblower Act claim is barred by the statute of limitations
and must be dismissed.

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4. Intentional Infliction of Emotional Distress
In order to prevail on an intentional infliction of emotional distress (“IIED”) claim,
Plaintiff must prove: (1) Defendant intended to cause emotional distress or knew or should have
known that its conduct would result in serious emotional distress to Plaintiff; (2) Defendant's
conduct was outrageous and extreme and beyond all possible bounds of decency and was such
that it can be considered as utterly intolerable in a civilized community; (3) Defendant's conduct
was the proximate cause of Plaintiff's psychic injury; and (4) Plaintiff's emotional distress was
serious and of such a nature that no reasonable person could be expected to endure it. Talley v.
Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1110 (6th Cir.2008).

To be liable,

Defendant’s behavior must go beyond intentionally tortious or even criminal behavior. Yeager v.
Local Union 20, 6 Ohio St. 3d 369, 375, 453 N.E.2d 666, 671 (1983).
Moreover, when evaluating IIED claims, Ohio courts place great emphasis on the
“seriousness” of the emotional distress. Yeager, 6 Ohio St. 3d at 375. “Serious emotional
distress may be found where a reasonable person would be unable to cope adequately with the
mental distress engendered by the circumstances of the incident.” Watkins v. Millennium School,
290 F.Supp.2d 890, 903 (S.D. Ohio 2003) (citing Miller v. Currie, 50 F.3d 373, 378 (6th
Cir.1995)). Serious emotional distress may not be found, however, where the plaintiff fails to
show she sought medical or psychiatric help or, at least then, she must show that she was unable
to function in daily life. Id. (citing Miller v. City of Columbus, 920 F.Supp. 807, 824 (S.D.Ohio
1996)).
Plaintiff argues the distress and anguish she suffered is so serious and of a nature no
reasonable person could be expected to endure. (Doc. 3 at ¶ 134). Specifically, Plaintiff alleges
that due in part to the pressure placed on her by her supervisor, she suffered from insomnia and

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gastrointestinal issues. (Doc. 3 at ¶ 61). She argues that as a result of Dr. Sopirala telling her to
“take care of it,” the burden of an infection outbreak was more than Plaintiff could handle. (Doc.
10, PageID 86). Aside from lack of management support, Plaintiff also alleges she was removed
from the outbreak investigation; removed from other projects; and disciplined for reviewing her
own medical file. (See generally Doc. 3). She argues these things, along with compromising the
safety of employees and patients, forced her to resign and give up her career. As a result of all of
this, Plaintiff alleges she “decided to seek guidance for this patient safety issue and the ethical
dilemma she had been placed in so she met with an employee assistance counselor.” (Doc. 3 at
¶ 61). Taking Plaintiff’s allegations as true, the Court finds at this early stage Plaintiff has
sufficiently plead that the distress she experienced, stemming from the outbreak investigation,
was so serious that she was unable to cope and thus, she sought medical or psychiatric help.
The Court is not, however, convinced that Plaintiff will ultimately be able to show that
the emotional distress she suffered was of a serious enough nature. Moreover, courts have held
that “‘difficult work conditions,’ including. . . lack of management support, are not sufficient,
even if combined with a potentially discriminatory dismissal, to rise to the level of extreme and
outrageous conduct to support a claim for intentional infliction of emotional distress under Ohio
law.” Crespo v. Cellco Partnership, No. 1:16-cv-679, 2016 WL 4194136, *3 (Aug. 9, 2016)
(citing Nicklas v. United Parcel Service, Inc., No. 1:07CV73, 2007 WL 4322220 (N.D.Ohio Dec.
7, 2007). Consequently, the Court is also skeptical that the alleged conduct, particularly toward
Plaintiff, rose to the level of extreme and outrageous conduct necessary to establish a claim for
IIED. Nevertheless, construing the Amended Complaint in the light most favorable to Plaintiff,
accepting its allegations as true, and drawing all reasonable inferences in favor of the Plaintiff,
the Court finds Plaintiff states a plausible claim for IIED.

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5. Punitive Damages
A claim for punitive damages is not an independent claim in Ohio; rather, it is a remedy.
See Shoup v. Doyle, 974 F.Supp.2d 1058, 1087 (S.D. Ohio 2013). Thus, to the extent Plaintiff
pleads it as an independent claim, it is dismissed. The Court notes, however, that Plaintiff is free
to seek punitive damages as a remedy for her IIED claim, if appropriate.
IV.

CONCLUSION
Consistent with the foregoing, Defendant’s Motion to Dismiss Plaintiff’s Amended

Complaint (Doc. 7) is GRANTED IN PART. The claims against Defendant for retaliation,
hostile work environment, and the Whistleblower Act are DISMISSED WITH PREJUDICE.
Plaintiff’s IIED claim remains.
IT IS SO ORDERED.

/s/Michael R. Barrett
________________________________
Michael R. Barrett, Judge
United States District Court

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