Orwick v. Mercy Health et al, No. 1:2020cv00113 - Document 30 (S.D. Ohio 2022)

Court Description: ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 26 ): Defendants' Motion for Summary Judgment is GRANTED. Count 1 of Plaintiff's Complaint, Count 2 of Plaintiff's Complaint, and Count 5 of Plaintiff's Complaint are DISMISSED WITH PREJUDICE. This case is TERMINATED from the Court's docket. IT IS SO ORDERED. Signed by Judge Matthew W. McFarland on 05/03/2022. (kaf)

Download PDF

Orwick v. Mercy Health et al Doc. 30 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 1 of 19 PAGEID #: 1611 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERNDIVISION- CINCINNATI Case No. l:20-cv-113 ROBERT ORWICK, Judge Matthew W. McFarland Plaintiff, V. MERCYHEALTH,et al./ Defendants. ORDERGRANTINGDEFENDANTS'MOTIONFORSUMMARYJUDGMENT This matter is before the Court on Defendants' Motion for Summary Judgment (Doc. 26). Plaintiff filed a response in opposition to Defendants' Motion (Doc. 28), to whichDefendant replied (Doc. 29). Thus, the motion is fully briefed and ripe for review. As explained below/ Defendant's Motion for Summary Judgment is GRANTED. FACTS In this matter. Plaintiff Robert Onvick ("Plaintiff) has sued his former employer, Defendant Bon Secours Mercy Health ("Mercy Health") and Crissie Tino, Plaintiffs supervisor, alleging that his termination was the result of disability discrimination. He has also asserted state law claims. Defendants contend that his termination was not discriminatory, but rather was the result of Plaintiffs admitted violation of a company policy prohibiting theft. Defendants contend that, in light of the evidence in therecord, summary judgment is appropriate. Dockets.Justia.com Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 2 of 19 PAGEID #: 1612 I. Plaintiff's Employment at Mercy Health Plaintiffs employment with Mercy Health began in October 2007 when he was hired as a full-time surgical assistant. (Robert Orwick Deposition ("Onvick Dep.//), Doc. 17, Pg. ID 75-76. ) Prior to this. Plaintiff served in the Navy and ultimately the Marines during Desert Shield and Desert Storm. (Id. at Pg. ID 81-84.) At the beginning of his employment/ Plaintiff signed a Certification stating, "1 certify that I will comply with the Code of Responsibility and Standards of Responsible Conduct/ and any other standards or policies by my organization, through my association with [Mercy Health]. " (Orwick Certification to Comply with Code of Responsibility ("Certification"), Doc. 17-1, Pg. ID 313. ) Plaintiff also signed an Employee Verification Statement, stating, "1have also read Mercy's Standards of Behavior/ and I understand their importance in assuring a culture of excellence at our facilities. I pledge that I will conduct myself according to the Standards of Behavior and hold my colleagues accountable for following them as well. " (Id. at Pg. ID 314.) Mercy Health has a policy against employee theft. (Michael Kramer Deposition ("PCramer Dep//), Doc. 21, Pg. ID 868-69. ) This policy states that employee theft is a terminable offense. (Id. at Pg. ID 869. ) Whether an employee will be terminated due to theft is determined on a case-by-case basis, based on the specific events surrounding the theft. (Id.) Mercy Health has terminated other employees for theft of Mercy Health property prior to terminating Plaintiff. (Id.) Duringhistenure atMercy Health, Plaintiffwasa well-respected surgical assistant and preferred by multiple doctors at Mercy Health. (Kirn Auberger Deposition 2 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 3 of 19 PAGEID #: 1613 ("AubergerDep.//),Doc.18,Pg.ID582.) However/ hedidhavesomeemployment-related shortcomings/ including being insubordinate by refusing to work in certain types of surgeries and speaking negatively about his co-workers, physicians, or Mercy Health policies and procedures. (Id. at Pg. ID 583-84.) II. Plaintiff's Medical History Plaintiff experienced certain health issues/ some of which required him to take medication. His health conditions included bipolar affective disorder, depression, moderate (HCC), post-traumatic stress disorder attributed to his military service, and anxiety. (Orwick Health Records, Doc. 17-1/ Pg. ID 359. ) Plaintiff also had low testosterone, which he treated through self-injections of testosterone hormones. (Orwick Dep., Doc. 17, Pg. ID 102;Orwick Health Records/ Doc. 17-1, Pg. ID 361. ) He hadbeen administering the testosterone sinceDecember of2017. (Onvick Health Records, Doc.171, Pg. ID 361. ) In fact. Plaintiff was on a regular treatment schedule and received a fourto-six-month advanced supply ofsyringes andneedles for these injections. (OrwickDep., Doc 17, Pg. ID 104.) On June 18, 2018, Plaintiff had a psychiatric appointment with a Mercy Health practitioner. Plaintiff informed Kim Auberger, his direct supervisor/ the day of his psychiatric appointment that he would need to take time off to attend his appointa-nent. (June 18, 2018 Auberger and Orwick Text Chain, Doc. 17-1/ Pg. ID 348. ) On June 19, Plaintiff informed Auberger that he had been diagnosed with several conditions and prescribed a medication for ta-eatment that would cause drowsiness. (Id. at Pg. ID 438; see also Auberger Dep., Doc. 18, Pg. ID 587-88.) Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 4 of 19 PAGEID #: 1614 III. Plaintiff's Termination OnSaturday, June23, 2018/at approximately 8 A. M./ Plaintiff realized that he did nothavethenecessary needle andsyringe to injecthimselfwithhistestosterone hormone replacement fareatment. (Orwick Statement Appealing Termination/ Doc. 17-1/ Pg. ID 438. ) As a result, he drove twenty miles from his home to Mercy Health on his day off. (Id.; see also Orwick Dep./ Doc. 17, Pg. ID75, 89.) He did not clock in whenhe arrived at Mercy Health, nor at any time during that day. (Orwick Dep. / Doc. 17, Pg. ID 89.) Nevertheless/ he put his scrubs over his civilian clothes in the locker room. (Id. at Pg. ID 89-90. ) He then proceeded from the locker room, through the breakroom, a substerile hallway, into a sterile room and through the "sterile core" while carrying a nonsterile box containing his usedneedles and syringes hebroughtfrom home. (Id. atPg.ID91-92/94.) In the sterile core/ he then took a sterile, unused syringe and needle, which was hospital property, and emptied his nonsterile/ used syringes and needles into the "sharps container. " (Id. at Pg. ID 94. ) He then exited the sterile core, walked down the substerile hallway/ and entered the locker room/ where he injected himself with his testosterone hormone replacement treatment. (Id. atPg. ID 94-95. ) He then "recapped the needle and syringe/ returned into the [sterile core] room and threw [the used syringe and needle] into the sharps container/' (Id. at Pg. ID 95.) He then exited the hospital. (Id.) Plaintiff never asked his supervisors or obtained permission to enter Mercy Health on his day off, walk through sterilized and resta-icted areas of the hospital, or take and use a Mercy Health syringe and needle. (Id. at Pg. ID 96-97. ) Plaintiff testified that he intended to replace the syringe and needle he took from Mercy Health once his Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 5 of 19 PAGEID #: 1615 prescription was filled. (Id. at Pg. ID 122.) After leaving Mercy Health onJune23rd, Plaintiff texted Auberger saying: Good morning and sorry to bother you[. ] I want to be honest with you and tell you I had to use a syringe and needle from work. One of my meds I take, the supplies didn't come in. I will replace [the syringe and needle] once my syringes come in[.] (June23, 2018Text Chain/ Doc. 17-1/Pg. ID 351.) Additionally, Candace Smith, one of Plaintiffs co-workers, informed Auberger shewitnessed Plaintiff take the syringe and needle. (Candace Smith Deposition, Doc. 22, Pg. ID 942, 947. ) Another coworker/ Christi Stevens, also saw Plaintiff take the syringe and needle. (Christi Stevens Deposition/ Doc. 23, Pg. ID 1002.) Auberger was shocked to receive Plaintiff's text/ so sheimmediately screenshotted Plaintiffs text and sent it to Defendant Cryssie Tino ("Tino"), Mercy Health's perioperative director andAuberger's superior. (Auberger Dep./ Doc.18,Pg.ID577, 62527). Tino contacted Kimberly Beisel, a member of the HR department at Mercy Health/ who/ in turn, informed Tino that she would reach out to Karyn Batdorf, the Mercy Health HR Director. ((Kimberly Beisel Deposition ("Beisel Dep//), Doc. 20, Pg. ID 767-68. ) Beisel did so and Batdorf instaructed Beisel to place Plaintiff on administrative leave. (Karyn Batdorf Deposition, Doc. 19, Pg. ID 711-12.) Beisel and Tino contacted Plaintiff and placed him on administrative leave/ informing him that he was to meet in Tino's office on Monday, June 25th, at 7:00 a.m., and that he wasrequired to provide a written statement that explained hisconduct prior to that meeting. (Beisel Dep., Doc. 20, Pg. ID 771-73.) Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 6 of 19 PAGEID #: 1616 Also onJune23, Auberger reached out to Dave Hampton/ a member ofthe security team at Mercy Health. (Auberger Dep./ Doc. 18, Pg. ID 628-29); (Orwick Dep., Doc. 17, Pg.ID245. ) Hampton informed Auberger thatwhen anindividual "isfound taking drug paraphernalia, whichis a needle and syringe/ is that it hasto bereported to [the police]/ (Auberger Dep./ Doc. 18, Pg. ID 629. ) Hampton later informed Auberger that Mercy Healthsecurity neededadditionalinformationregardingPlaintifftoprovidetotheGreen Township police. (Id. at Pg. ID 630. ) Auberger then heard directly from Jessica Grgas on behalf of Green Township asking for additional information regarding June23 event. (Id. at Pg. ID 630-31.) That same day/ Auberger was contacted by Dr. Wright, a physician at Mercy Health, on behalf of himself and Dr. Busam. (Auberger and Tino Email June 24/ 2018, Doc. 17-1, Pg. ID 346-47. ) Dr. Wright explained to Auberger that Plaintiff was a former Navy veteran and potentially had FTSD. (Id.) Wright then explained that he was interested in what had occurred and what was going to happen to Plaintiff. (Id.) Wright explained hehadreservations about terminating Plaintiff. (Seeid.) Wright thencontacted Tino to discuss Plaintiffs situation as well. (Tino Dep. / Doc. 24, Pg. ID 1063-66.) Ultimately/ Plaintiff was charged theft and arrested on that same day, June 23, in Hamilton County. (Hamilton County Municipal Court Journal enta:y Regarding Plaintiff's Arrest, Doc. 17-1/ Pg. ID 352. ) However, the charges were dropped by the Hamilton County Assistant Prosecuting Attorney onJuly18, 2018.(Id.atPg.ID356.) On Monday/ June 25, Plaintiff met with Tino and Beisel. (Orwick Dep. / Doc. 17, Pg. ID 211; Beisel Dep. / Doc. 20, Pg. ID 775-76. ) He did not bring a written statement to 6 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 7 of 19 PAGEID #: 1617 the meeting/ (Beisel Dep., Doc. 20, Pg. ID 776.) He informed Tino and Beisal that he did not believe Tino and Beisel showed compassion for Plaintiffs situation, and he did not thinkbringinga statement would doanygood.(Id.) BeiselandTinothenmovedforward with terminating Plaintiffs employment. (Tino Dep. / Doc. 24, Pg. ID 1050; Beisel Dep./ Doc. 20, Pg. ID 775-76.) IV. Plaintiff's Appeal of His Termination Later that day. Plaintiff filed an Employee Appeal with Mercy Health, claiming that his termination was "extreme punishment for being honest. " (Onvick Dep. / Doc. 17- I/ Pg. ID 357.) He explained that he required mental treatment and felt that he "hadno other resource/" that he "sadly made a mistake/' and that he "[would] never make [the same mistake] again." (Id.) He stated that he did not steal the syringe and needle, but instead //[b]arrowed a syringe [and] needle to administer [his] meds, with full intent in replacing it once [his] supplies came in." (Id.) Instead of termination. Plaintiff proposed suspension and a final written warning. {Id.) A Dispute Resolution Team (//DRT") reviewed Plaintiffs case and submitted a recommendation to Mercy Health's CEO. (DRT Recommendation, Exhibit 15 to BCramer Dep.,Doc.21,Pg.ID900.) DRT'sRecommendation, submitted onJuly9, 2018,statedthat //[p]er the Standards of Conduct and Performance policy, theft is a major infraction that may result in a final written warning or termination ofemployment. " (Id.) However, DRT determined that/ //[w]hile not a unanimous decision, the team would like to recommend [Plaintiff] be reinstated with a Final Written Warning and that the period of time since the infraction occurred be considered an unpaid suspension. (Id.) Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 8 of 19 PAGEID #: 1618 Michael Kramer, Mercy Health's Chief Executive Officer, reviewed DRT's Recommendation. (PCramer Dep. / Doc. 21, Pg. ID 834, 863. ) After reviewing DRT's Recommendation, the case files/ and meeting with Batdorf and Stephanie Meade, the chief nursing officer, it was Michael Kramer's decision to uphold Plaintiff's termination. (Mat Pg. ID 863.) V. Procedural History After histermination wasupheld, "Plamtifffiled a chargeagainstDefendants with the Ohio Civil Rights Commission (OCRC) and the Equal Employment Opportunity Commission (EEOC) for disability discrimination" in February of 2019. (Complaint ("Compl/'), Doc. 1, Pg. ID 2. ) The EEOC issued Plaintiff a Notice of Right-to-Sue on or aboutJanuary9, 2020.(Id.) Plaintiffsubsequently filedthisactionwithin90days/bringing claims of: Count I - Disability Discrimination in violation of the American with Disabilities Act ("ADA"); Count II - Disability Discrimination in violation of Ohio Rev. Code § 4112. 02; Count III - Defamation; Count IV - Malicious Prosecution; and Count V - Intentional Infliction of Emotional Distress. (Id. at Pg. ID 3-6.) During litigation/ Plaintiff dismissed Count I against Defendant Tino, individually, and Count III and Count IV in their entirety against both Defendants. (Amended StipulationofPartialDismissalofAction, Doc.15,Pg.ID58.) Accordingly, the remaining cause of actions are: Count I - Disability Discrimination in violation of the ADAagainstMercyHealth/ CountII- DisabilityDiscrimination inviolation ofOhioRev. Code § 4112. 02against both Defendants, and Count V - Intentional Infliction ofEmotional Distress against both Defendants. 8 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 9 of 19 PAGEID #: 1619 LAW AND ANALYSIS Courts must grant summary judgment if the record "reveals that there is no genuine issueasto any material factandthe moving party is entitled to a judgment as a matter of law. " Laster v. City ofKalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Fed. R. Civ. P. 56(c)). Once the movant has met its initial burden of showing that no genuine issueof material factremains, the nonmoving party must present "specificfacts showing that there is a genuine issue for trial. " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To do so/ the nonmovant must present "significant probative evidence . . . on which a reasonable jury could return a verdict" in their favor. Chappell v. City of Cleveland, 585 F.3d 901, 913 (6th Cir. 2009). The court "must view the facts and any inferences that can be drawn from those facts... inthelightmostfavorabletothenonmoving party. " KeiveenawBayIndianComm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007). This requirement, however, does not mean that the court must find a factual dispute where record evidence contradicts wholly unsupported allegations. "The 'mere possibility' of a factual dispute is not enough/ Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859/ 863 (6th Cir. 1986)). "If a moving party fulfills its burden of demonstrating that no genuine issue ofmaterial fact exists/ the nonmoving party, to receive a trial, must present some significant probative evidence creating a factual dispute. " Stratienko v. Cordis Corp., 429 F.3d 592, 597 (6th Cir. 2005). Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 10 of 19 PAGEID #: 1620 I. Defendants are Entitled to Summary Judgment on Plaintiffs Disability Discrimination Claims as a Matter of Law. Defendants allege that Plaintiff failed to make a prima facie case for disability discrimination, under either the ADA or Ohio law, that Defendant established Plaintiffs termination was due to a legitimate, nondiscriminatory reason/ and that Plaintiff failed to establish such reason was pretextual. Additionally, Defendants claim that they are entitled to summary judgment on Plaintiff's intentional infliction of emotional dista-ess claim because Defendants' conduct was neither extreme nor outrageous. Plaintiff/ on the other hand, claims that genuine issues ofmaterial factexist as to all hisremaining clainis and so Defendants' Motion for Summary Judgment should be denied. Plaintiff brings disability discrimination claims under both the ADA and Ohio s anti-discrimination statute/ Ohio Rev. Code § 4112. 02. However, because "Ohio disability discrimination law parallels the [ADA] in relevant respects, " this Court may "appl[y] the same analytical framework, using cases and regulations interpreting the ADA as guidance in [its] interpretation of Ohio Rev. Code § 4112.02." Belasco v. Warrensville Heights City Sch.Dist., 634F. App'x 507, 514 (6th Cir. 2015). The ADA states that //[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancing, or discharging of employees, employee compensation, job training, and other terms/ conditions, and privileges of employment. " 42 U.S.C. § 12112(a). A plaintiff may establish a claim for disability discrimination through either direct or indirect evidence. Hedrickv. FV.Reserve Care Sys., 355 F.3d 444/ 453 (6th Cir. 2004). When/ as in this case, a 10 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 11 of 19 PAGEID #: 1621 plaintiff relies exclusively onindirect evidence, a court must apply theMcDonnellDouglas burden-shifting framework. SeeGohlv. LivoniaPub. Sch. Dist., 836F.3d 672, 682 (6th Cir 2016) (citingMcDonnellDouglas Corp. v. Green, 411U.S. 792, 802-04(1973)). Under the McDonnell Doughs framework, Plaintiff must first establish a prima facie case. Williams v. AT&T Mobility Serv. LLC, 847 F.3d 384, 395 (6th Cir. 2017). To establish a prima facie case, Plaintiff must demonstrate "(1) [he] has a disability, (2) [he] is otherwise qualified for the position, with or without reasonable accommodation, (3) [he] siiffered an adverse employment decision, (4) [his] employer knew or had reason to know of [his] disabUity/ and (5) [he] was replaced or [his] position remained open. Id. If Plaintiff establishes a prima facie case, "the burden then shifts to the employer to demonstrate that there was a legitimate/ nondiscriminatory reason for the adverse employment action. " Id. If Defendants satisfy this burden. Plaintiff must show "that the reason given by the employer was actually a pretext designed to mask unlawful discrimination." Id. A. The Court Assumes that Plaintiff Has Demonstrated a Prima Facie Case of Disability Discrimination. Defendants argue that Plaintiff failed to establish a prima facie case because Plaintiff was not disabled at the time of his termination. First/ Defendants claim that Plaintiff was not disabled when terminated because physical and mental impairments did not substantially limit one or more major life activities. Next/ Defendants claim that Plaintiff was not disabled when terminated because there was no record of his impairment. Lastly, Defendants claim that Plaintiff was not regarded as disabled. 11 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 12 of 19 PAGEID #: 1622 Defendants also claim that Plaintiff failed to establish a prima facie case because Defendants were not aware that he was disabled. Plaintiff argues the contrary. Plaintiff claims that that hehasestablished a prima facie case of disability discrimination. Plaintiff first argues that hehad anactual disability basedonhisdiagnosis of PTSD/Bipolar Disorder, Depression andHypogonadism prior to his termination. He claims that the side effects to his diagnoses substantially impair major life activities/ such as sleeping. Also, Plaintiff argues that his medical records corroborate his impairments and disabilities. Lastly/ Plaintiff argues that Defendants were aware that he was disabled. This is because Plaintiff mformed Auberger that he had been diagnosed with several conditions and prescribed a medication for treatment that would cause drowsiness on June 19, 2018. (Id. at 438; see also Auberger Dep. / Doc. 18, Pg. ID 587-88.) The Court/ viewing the facts in a light most favorable to Plaintiff, acknowledges that the facts presented present a picture suggesting that Plaintiff established a prima facie claim for disability discrimination. However, the Court, without deciding that Plaintiffhassatisfiedhisburden, will assume thata prima faciecasehasbeenestablished. B. Defendants Had a Legitimate, Nondiscriminatory Reason for Terminating Plaintiff. Assuming that Plaintiff met his initial burden to establish a prima facie case of disability discrimination, "the burden then shifts to [Defendants] to demonstrate that there was a legitimate, nondiscriminatory reason for the adverse employment action. Williams, 847 F.3d at 395. Therefore, "[Defendants] must clearly set forth/ through the 12 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 13 of 19 PAGEID #: 1623 introduction of admissible evidence, reasons for [their] actions which/ if believed by the trier of fact/ would support a finding that unlawful discrimination wasnot the cause of the employment decision. " St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). //[V]iolations of express company policy are legitimate, non-discriminatory reasons for taking adverse employment action. " Schwendeman v. Marietta City Sch., 436 F. Supp. 3d 1045/1061 (S.D. Ohio2020) (citing Blackshearv. Interstate Brands Corp., 495 F. App'x 613, 618 (6th Cir. 2012)). Plaintiff admits that he violated a Mercy Health express policy when he took the syringes and needles. (Orwick Dep., Doc. 17, Pg. ID 94. ) As Michael Kramer explained, theftisa violation ofMercy Healthpolicies andisknownasa termmable offense. (Kramer Dep., Doc. 21,Pg. ID868-69.) And Plaintiffsigned a certification promising to adhereto all Mercy Health policies. (Certification/ Doc. 17-1/Pg. ID313.) Attempting to avoid this conclusion, Plaintiff argues that he did not steal the property, and thus did not violate any Mercy Health policies/ because he intended to replace the property once his prescription was filled. (Plaintiff Response in Opposition, Doc. 28, Pg. ID 1584-85. ) However, Plaintiffs intention does not erase the legal effect of his conduct, which fits the black letter definition of "theft. " Theft is defined as /'[t]he wrongful taking and removing of another's ... property with the intent of depriving the true owner of it. " Theft, Black Law Dictionar (llth Ed. 2019). Plaintiff took a Mercy Health syringe and needle without permission. While Plaintiff may have intended to provide Mercy Health with a different syringe and needle, he admittedly took Mercy Health property and disposed of it. (Orwick Dep./ Doc.17, Pg. ID 94-95. ) This conduct 13 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 14 of 19 PAGEID #: 1624 still constitutes theft because he intended to deprive Mercy Health of those particular items. Therefore, because Plaintiff violated Mercy Health's policy against theft, Defendants had a legitimate/ nondiscriminatory reason to terminate Plaintiff. C. Defendants' Legitimate, Nondiscriminatory Reason was not Pretextual. The burden next shifts to Plaintiff to demonstrate that Defendants' legitimate/ nondiscriminatory reason was solely pretext for unlawful disability discrimination. To demonstrate pretext/ Plaintiff must establish that the proffered reason //(1) has no basis in fact; (2) did not actually motivate the adverse employment action; or (3) was insufficient to warrant the adverse action. " Sybrandtv. Home Depot, U. S. A., Inc., 560F.3d 553, 558 (6th Cir. 2009). Additionally, //[P]laintiff may also demonsfa-ate pretext by offering evidence which challenges the reasonableness of the employer's decision to the extent that such an inquiry sheds light on whether the employer's proffered reason for the employment action was its actual motivation. " Id. First, P aintiff cannot prove that Defendants' reason has no basis in fact. Plaintiff has admitted that he/ in tact, entered Mercy Health on June 23, his day off, entered multiple sterilized locations carrying an unsterilized box containing used syringes and needles while beingunsterilized himself, disposed ofthe used syringes andneedles in a sharps container, took a syringe and needle from Mercy Health without permission, and left. (Orwick Dep. / Doc. 17, Pg. ID 91-94. ) He then immediately confessed to such behaviorbytextinghissupervisor. (June23, 2018Auberger andOnvickTextChain,Doc. 17-1, Pg. ID 351.) Accordingly/ Defendants' proffered reason for Plaintiff's termination clearly has a basis in fact. 14 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 15 of 19 PAGEID #: 1625 Second, there is no genuine issue of material fact that the proffered reason actually motivated Defendants to terminate Plaintiff. Plaintiff was placed on administrative leave within hours of when he took the syringe and needles. (Karyn Batdorf Deposition/ Doc. 19, Pg. ID 711-12.) His supervisors expressed shock moments after learning about the incident. (Auberger Dep./ Doc. 18,Pg.ID625-27. ) Indeed, Defendants were informed by Mercy Health's head of security that/ due to the nature of Plaintiffs conduct. Mercy Health'shumanresources department mustcontactGreenTownship policeto report the theft. (Id. at Pg. ID 629-31. ) Further, Mercy Health reacted by terminating Plaintiff only two daysafterthetheft. (TinoDep.,Doc.24,Pg.ID1050;BeiselDep./ Doc.20,Pg.ID77576. ) Given the genuine reactions of Plaintiff's supervisors and the temporal proximity withinwhichMercyHealthresponded/ theonlyreasonableconclusionisthatDefendants terminated Plaintiffbecause of the theft. Third/ Defendants' proffered reason was sufficient to warrant Plaintiffs termination and was reasonable. Mercy Health has a policy against employee theft. (Kramer Dep., Doc. 21,Pg.ID868-69. ) Violation ofthis policy isa terminable offense. {Id.) Plaintiff signed a Certification andanEmployment Verification statement, certifying that he would comply with and conduct himself as required by Mercy Health policies and standards of behavior. (Certification/ Doc. 17-1/ Pg. ID 313-14. ) And Mercy Health has previously terminated other employees whoviolated thepolicy againstemployee theft. PCramer Dep., Doc. 21, Pg. ID 869.) Although Mercy Health indicated that whether theft is terminable is based onthe specificcircumstances ofthesituation/ (seeid.), Plaintiffpointsto nofactsto suggestthat 15 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 16 of 19 PAGEID #: 1626 his termination was the result of anything other than his behavior. As set forth above/ Plaintiffs conduct was particularly troubling. Additionally/ multiple sources within Mercy Health supported the decision to terminate Plaintiff/ including the human resources director and the CEO. Further/ the DRT/s recommendation of reinstatement wasnot unanimous, andeven DRTrecognized thattheft "isa major infraction" thatcould result in termination. (DRT Recommendation, Kramer Dep., Exhibit 15, Doc. 21, Pg. ID 900.) Thus, the Court is not persuaded by Plaintiff's argument that Defendants proffered reasonwassolely pretexhial. Plaintiff claims that a genuine issue of material fact exists as to whether Defendants' proffered reason was solely pretext/ because "no onesought orconsidered Plaintiffs explanation" thathewasnotstealing the syringe and needle/ but rather would replace the supplies once his prescription was filled. (Plaintiff Response, Doc. 28/ Pg. ID 1584. ) However, the Court finds such characterization to be a distinction without a difference. Common sense prevents the conclusion for which Plaintiff advocates/ as to accept it would require hospitals to not sanction employees removal ofdrugs ordrugparaphernalia solong asthey intend to replace it. Suchconduct by an employer would be reckless. Furthermore, Plaintiff points to no comments or allegeddifferential treatment thatcouldconceivably relatetohisdisability-but for this single instance. Therefore, the Court finds that Defendants offered a legitimate, nondiscriminatory reason for the termination/ and Plaintiff failed to establish that the reason was a pretext. As a result. Defendants are entitled to summary judgment on Plaintiffs claims of 16 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 17 of 19 PAGEID #: 1627 disability discriminadon in violation of the ADA and in violation of OhioRev. Code § 4112.02/ as a matter of law. II. Defendants are Entitled to Summary Judgment on Plaintiffs Intentional Infliction of Emotional Distress Claim as a Matter of Law. Next/ Defendants argue that Plaintiffs intentional infliction of emotional distress claim fails as a matter of law. In Ohio/ "a. plaintiff must prove (1) that the defendant intendedtocausetheplaintiffseriousemotional distress, (2)thatthedefendant'sconduct wasextreme andoutrageous, and (3) thatthe defendant's conductwasa proximate cause ofplaintiffs seriousemotional distress. " Phungv.WasteMgt., Inc.,71OhioSt.3d408/410, 644 N.E.2d 286 (1998). Because Defendants' conduct was not extreme and outrageous, Defendants are entitled to summary judgment on Plaintiffs claim for intentional infliction of emotional distress. /'[C]onduct givingriseto anintentional infliction ofemotional distress claimmust be so outrageous in character/ and so exta-eme in degree/ as to go beyond all possible bounds of decency, and to beregarded asatrocious/ and utterly intolerable in a civilized community. " Long v. Ford Motor Co., 193 F. App'x 497/ 503 (6th Cir. 2006) (quotations omitted). Indeed, Ohio courts narrowly define "extreme and outrageous conduct. See Reamsnyder v. Jaskolski, 10 Ohio St. 3d/ 150, 462 N.E.2d 392 (1984) (adopting the Restatement of the Law 2d/ Torts (1965) definition of extreme and outrageous conduct.) Thus, //anemployee's terniination/ even ifbasedupon discrimination/ doesnotriseto the level of extreme and outrageous conduct without proof of something more. If such were nottrue/ thenevery discrimination claimwould simultaneously becomea causeofaction 17 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 18 of 19 PAGEID #: 1628 for the intentional infliction of emotional distress. " Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999). Plaintiff's intentional infliction of emotional distress claim is premised on the fact that "Defendants' conduct . . . was outrageous and intended to cause Plaintiff severe emotional distress/' (Compl. / Doc.l/ Pg. ID6. ) However, Plaintiffdoesnot arguethat any additional conduct other than Plaintiffs temunation and Defendants' affirmance after Plaintiffs appeal (1) constituted extreme or outrageous conduct or (2) was a proximate cause of any of Plaintiffs alleged emotional distress. {See Plaintiffs Response in Opposition, Doc. 28, Pg. ID 1586-87.) This Court found above that Defendants' conduct did not constitute discrimination on the basis of Plaintiffs alleged disability, and so Plaintiff's emotional distress claim must similarly fail. However, even if Defendants' conduct did rise to the level of discrimination, termination is not enough to satisfy the second element of intentional infliction of emotional distress under Ohio law unless additional conduct is identified, see Godfre dson, 173 F.3d at 376, and Plaintiff points to no other conduct. In other words. Plaintiffs termination does not rise to the level of extreme and outrageous conduct under Ohio law. Thus/ Defendants are entitled to summary judgment on Plaintiff's intentional infliction of emotional distress claim as a matter of law. 18 Case: 1:20-cv-00113-MWM Doc #: 30 Filed: 05/03/22 Page: 19 of 19 PAGEID #: 1629 CONCLUSION For the foregoing reasons. Defendants' Motion for Summary Judgment is GRANTED. Thus, Count 1 ofPlaintiff's Complaint, Count2 ofPlaintiffs Complaint, and Count 5 of Plaintiffs Complaint are DISMISSED WITH PREJUDICE. Therefore/ this case is TERMINATEDfrom the Court's docket. IT IS SO ORDERED. UNITED STATES DISTRICT COURT SOUTHERNDISTRICTOF OHIO ^. By: <r r ^ JUDGE MATTHEW W. cFARLAND 19

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.