Morris v. Mary Rutan Hospital

Filing 26

OPINION and ORDER granting 20 Defendant's Motion to Dismiss Counts III, IV, VI, and VII of Plaintiffs Second Amended Complaint. Signed by Judge George C. Smith on 3/19/19. (sem)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

DR. LARRY MORRIS,
Plaintiff,
Case No. 2:18-cv-543
JUDGE GEORGE C. SMITH
Magistrate Judge Deavers

v.

MARY RUTAN HOSPITAL,
Defendant.

OPINION AND ORDER
This matter is before the Court upon Defendant Mary Rutan Hospital’s Motion to Dismiss
Counts III, IV, VI, and VII of Plaintiff’s Second Amended Complaint (“MRH’s Partial Motion to
Dismiss”) (Doc. 20). Plaintiff Dr. Larry Morris filed a Response in Opposition (Doc. 22). MRH
has not filed a reply brief and the time to do so has now expired. For the following reasons, MRH’s
Partial Motion to Dismiss is GRANTED.
I.

BACKGROUND

As set forth in his Second Amended Complaint (Doc. 19), Morris alleges that he was
employed by MRH as a general surgeon beginning in August 2009. (Id. ¶¶ 14–15). At some point,
Morris entered into an employment agreement with MRH, effective beginning April 1, 2017, for
an initial term of one year, subject to additional one-year renewal terms unless either party elected
to provide notice of termination. (Id. ¶ 14; Doc. 12-3, Employment Agreement § 4.1). Morris
provided surgical services for MRH without incident until, prior to the effective date of the

employment agreement, Morris “experienced an adverse outcome” with a patient in March 2017.
(Doc. 19, 2d Am. Compl., ¶¶ 19–21).
Following this adverse outcome, MRH informed Morris that he would have to complete a
neuropsychological evaluation, a physical examination, and a course on medical record
documentation before he would be permitted to see any additional patients or practice surgery.
(Id. ¶¶ 22–23). MRH also stated that Morris would either have to permanently discontinue all
colon surgeries or have a proctor present with him for at least 10 lower bowel surgeries. (Id. ¶ 33).
MRH further stated that Morris would be placed on a six-month probationary period. (Id. ¶ 34).
Morris alleges that MRH “targeted [him] and took adverse employment action against him
because of his age and because [MRH] perceived [him] to be disabled.” (Id. ¶ 37). Specifically,
Morris contends that “[MRH] required [Morris] to complete a neuropsychological evaluation
because [MRH] mistakenly believed [Morris] had a neuropsychological disorder” and “perceived
[Morris] to be unable to perform the essential functions of his position because of such perceived
disorder.”

(Id. ¶¶ 27, 49).

Morris also alleges MRH instructed him to submit to a

neuropsychological evaluation and a physical examination, “without any explanation or reason
provided.” (Id. ¶¶ 38–39).
Finally, Morris alleges that MRH constructively terminated his employment by prohibiting
Morris from seeing any more patients or performing more surgeries. (Id. ¶ 44). MRH also
allegedly terminated Morris’s employment by falsely claiming that Morris and MRH had mutually
agreed to terminate the employment agreement pursuant to § 4.2(a) of the agreement, when Morris
had not signed a written agreement consenting to termination as required by § 4.2(a). (Id. ¶¶ 45–
46).

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Morris submitted a charge of discrimination based on age and perceived disability to the
Equal Employment Opportunity Commission (“EEOC”) on August 28, 2017. On March 20, 2018,
Morris was issued a Notice of Right to Sue stating that the EEOC was terminating its processing
of Morris’s charge. (Doc. 12-2, Notice of Right to Sue). Morris timely commenced this action on
June 4, 2018. (Doc. 1, Compl.). His Second Amended Complaint contains seven counts: age
discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.
(“ADEA”) (Count I); breach of contract (Count II); perceived disability discrimination under the
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”) (Count III); perceived
disability discrimination under Ohio Revised Code § 4112.02 (Count IV); requiring that Morris
undergo unlawful medical examinations in violation of the ADA (Count V); retaliation for
engaging in activity protected by the ADA (Count VI); and retaliation for engaging in activity
protected by Ohio Revised Code Chapter 4112 (Count VII).
In the present motion, MRH has moved to dismiss Morris’s claims for perceived disability
discrimination and retaliation in Counts III, IV, VI, and VII. (Doc. 20). MRH does not challenge
the remaining claims.
II.

STANDARD OF REVIEW

MRH brings this motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
alleging that Plaintiffs have failed to state a claim upon which relief can be granted.
Under the Federal Rules, any pleading that states a claim for relief must contain a “short
and plain statement of the claim” showing that the pleader is entitled to such relief. Fed. R. Civ.
P. 8(a)(2). To meet this standard, a party must allege sufficient facts to state a claim that is
“plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim will be
considered “plausible on its face” when a plaintiff sets forth “factual content that allows the court

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to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
Rule 12(b)(6) allows parties to challenge the sufficiency of a complaint under the foregoing
standards. In considering whether a complaint fails to state a claim upon which relief can be
granted, the 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.” Ohio Police &
Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012)
(quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet that a
court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause
of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. Thus,
while a court is to afford plaintiff every inference, the pleading must still contain facts sufficient
to “provide a plausible basis for the claims in the complaint”; a recitation of facts intimating the
“mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz-Craft Corp of Mich.,
Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679.
III.

ANALYSIS

Morris brings his perceived disability and retaliation claims under both the ADA and Ohio
Revised Code § 4112.02. Courts have consistently held that Ohio’s disability discrimination law
“entails the same legal analysis as that under the ADA.” Rosebrough v. Buckeye Valley High Sch.,
690 F.3d 427, 431 (6th Cir. 2012). Courts therefore “apply the same analytical framework, using
cases and regulations interpreting the ADA as guidance” in interpreting the disability-related
provisions of Chapter 4112. 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) and City of Columbus
Civil Serv. Comm’n v. McGlone, 697 N.E.2d 204, 206–07 (Ohio 1998)). As a result, although the

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analysis below focuses on Morris’s ADA claims, the results apply equally to Morris’s claims under
Chapter 4112. Daugherty, 544 F.3d at 702.
A.

Perceived disability discrimination
In order to state a claim for disability discrimination under the ADA, Morris must allege

that he is “disabled.” Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir.
2008). An individual is considered disabled under the ADA if he has (1) a physical or mental
impairment that substantially limits one or more major life activities; (2) a record of such
impairment; or (3) is regarded as having such an impairment. Id.; 42 U.S.C. § 12102(1). Morris
alleges that he qualifies as disabled because MRH mistakenly believed that Morris had a
neuropsychological disorder. (Doc. 19, 2d Am. Compl. ¶¶ 27, 71, 78).
MRH argues that, to state a claim for perceived disability discrimination (also referred to
as a “regarded-as-disabled” claim), Morris must allege facts sufficient to demonstrate one of the
following:
(1)

That the defendant-employer mistakenly believed that the plaintiff had a physical
impairment that substantially limited one or more major life activities; or

(2)

That the defendant-employer mistakenly believed that the plaintiff had an actual,
nonlimiting impairment that substantially limited one or more major life activities.

(Doc. 20-1, Mot. at 3, citing Moore v. Baptist Mem’l Health Care Sys., 398 F.3d 469, 479 (6th Cir.
2005) and Columbus Civil Serv. Comm. v. McGlone, 82 Ohio St.3d 569 (1998)). However, the
case law that MRH relies on for this requirement pre-dates the 2008 amendments to the ADA that
reduced the burden on plaintiffs to establish disability in regarded-as-disabled claims:
Before the 2008 Amendments, the Supreme Court interpreted the ADA to consider
a person disabled under the third prong only if a covered entity mistakenly believed
that the individual had a physical impairment that was substantially limiting, or
mistakenly believed that an actual, nonlimiting impairment was substantially
limiting. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144
L.Ed.2d 450 (1999), overturned by U.S. Pub. L. 110–325 (2009). In passing the
2008 Amendments, Congress liberalized the standard, redefining “regarded as
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having an impairment” only to require that a defendant took a prohibited action
based on a perceived impairment, regardless of whether the employer thought the
impairment was substantially limiting. 42 U.S.C. § 12102(3)(A).
Neely v. Benchmark Family Servs., 640 F. App’x 429, 435–36 (6th Cir. 2016) (emphasis added).
Thus, although Morris did allege that MRH “regarded [Morris] as a disabled individual by
mistakenly believing that [Morris] had a neuropsychological disorder that substantially limited his
ability to work” (Doc. 19, 2d Am. Compl. ¶¶ 71, 78), Morris need not factually support the
allegation that he was regarded as being substantially limited to state a regarded-as-disabled claim.
However, Morris must still allege facts sufficient to raise a plausible inference that MRH
regarded him as having an impairment, even if the perceived impairment is not severe enough to
substantially limit a major life activity. The only pertinent alleged fact is that MRH required
Morris to undergo a neuropsychological evaluation. (Id. ¶¶ 23–24). Morris contends this fact
alone is sufficient to establish that MRH regarded him as disabled. (See Doc. 22, Resp. at 6–7)
(“The only reason Defendant would suddenly require reports of Plaintiff’s various medical
evaluations would be to determine the extent of a perceived medical condition or disability.”).
Morris’s conclusion is not warranted by the alleged facts. The Sixth Circuit has held that
an employer’s request that an employee to undergo a medical or psychological evaluation is not
sufficient to establish that the employer regarded the employee as disabled. Sullivan v. River
Valley Sch. Dist., 197 F.3d 804, 810 (6th Cir. 1999); Krueger v. Home Depot USA, Inc., 674 F.
App’x 490, 494 (6th Cir. 2017) (“Asking him to undergo a psychological evaluation is not enough
to suggest that Home Depot regarded Krueger as mentally disabled.”). “Given that an employer
needs to be able to determine the cause of an employee’s aberrant behavior, this is not enough to
suggest that the employee is regarded as mentally disabled. As the district court ably explained, a
defendant employer’s perception that health problems are adversely affecting an employee’s job
performance is not tantamount to regarding that employee as disabled.” Sullivan, 197 F.3d at 810.
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Under Sullivan and Krueger, the request cannot by itself establish that MRH regarded
Morris as disabled, and Morris has alleged no other facts to support MRH’s perception of him as
disabled. Morris’s claims for perceived disability in Counts III and IV must therefore be
dismissed.
B.

Retaliation
The ADA also prohibits discrimination “against any individual because such individual

has opposed any act or practice made unlawful by this chapter . . . .” 42 U.S.C. § 12203(a). A
prima facie case of retaliation 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. Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014).
These elements are derived from the burden-shifting framework of McDonnell Douglas
Corp. v. Green that a plaintiff may use to offer circumstantial evidence of discrimination in the
absence of direct evidence. 411 U.S. 792 (1973). However, the Supreme Court has made it clear
that a plaintiff need not plead all the elements of the McDonnell Douglas prima facie case in order
to survive a motion to dismiss. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002) (“The
prima facie case under McDonnell Douglas, however, is an evidentiary standard, not a pleading
requirement.”). Rather, “so long as a complaint provides an adequate factual basis for [an ADA]
claim, it satisfies the pleading requirements of Federal Rule of Civil Procedure 8(a)(2).” Serrano
v. Cintas Corp., 699 F.3d 884, 897 (6th Cir. 2012). Moreover, Swierkiewicz remains good law
after the Supreme Court’s decisions in Twombly and Iqbal. Keys v. Humana, Inc., 684 F.3d 605,
609 (6th Cir. 2012).
MRH argues that the Second Amended Complaint lacks allegations that Morris “opposed”
any relevant act or practice, and therefore he has not alleged that he engaged in activity protected
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by the ADA. Morris disagrees, stating that he alleged in Count V that MRH required him to
undergo physical and neuropsychological testing that were not job-related or consistent with
business necessity, which is itself a violation of the ADA, and MRH does not challenge Count V
in the present motion. See 42 U.S.C. § 12112(d)(4)(A). Morris further argues that the retaliation
counts “allege that [MRH] retaliated against [Morris] for refusing to submit to the unlawful
medical examinations.” (Doc. 22, Resp. at 9). The problem with this argument is that there are
no factual allegations in the Second Amended Complaint that Morris refused to undergo the testing
requested by MRH. There is one lone statement, repeated in each of Counts VI and VII, that
“[Morris] engaged in protected activity when he opposed the unlawful medical exam(s) and
report(s) ordered by [MRH].” (Doc. 19, 2d Am. Compl. ¶¶ 92, 99). But this statement merely
recites an element of the retaliation claim; it does not provide any factual allegations to support his
alleged opposition.
Morris further argues that he “need not allege any additional facts” because he “simply
cannot allege detailed facts in order to establish an inaction.” (Doc. 22, Resp. at 9). This is not
so; if Morris “refused” to submit to the examinations as he states in his opposition brief, Morris
should be able to describe that refusal with factual allegations. For instance, Morris might have
told representatives of MRH verbally or in writing that he would not comply with the
examinations, or Morris might have failed to appear at or cooperate with a scheduled examination.
Morris’s bare opposition allegation “gets the [Second Amended Complaint] close to stating
a claim, but without further factual enhancement it stops short of the line between possibility and
plausibility.” Twombly, 550 U.S. at 546. If additional facts as to Morris’s opposition exist, there
is no reason why they could not have been included in his Second Amended Complaint, especially
after two prior opportunities to amend his allegations. And if additional facts do not exist, then

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Morris will be unable to demonstrate that he opposed any practice made unlawful by the ADA.
Therefore, Morris’s retaliation claims in Counts VI and VII are dismissed.1
IV.

CONCLUSION

For the foregoing reasons, MRH’s Motion to Dismiss Counts III, IV, VI, and VII of
Plaintiff’s Second Amended Complaint is GRANTED. The Clerk shall remove Document 20
from the Court’s pending motions list.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

1

Because the Court finds Morris has not sufficiently alleged a retaliation claim in the Second Amended Complaint,
the Court need not and does not resolve MRH’s argument that Morris failed to exhaust administrative remedies with
respect to his federal retaliation claim.

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