Burton, D.O. v. Kettering Adventist Healthcare

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

JENNA BURTON, D.O., :

:

Plaintiff, : Case No. 3:20-cv-209

:

v. : Judge Thomas M. Rose

:

KETTERING ADVENTIST HEALTH :

CARE, et al., :

:

Defendants. :

______________________________________________________________________________

ENTRY AND ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY

RESTRAINING ORDER (DOC. 9)

______________________________________________________________________________

Pending before the Court is “Plaintiff’s Motion for Temporary Restraining Order” (Doc.

9) (the “T.R.O. Motion”) filed by Plaintiff Jenna Burton, D.O. (“Burton”) on June 10, 2020.

Burton asks the Court to order that she “be reinstated to the KMC [Kettering Medical Center]

Internal Medicine Residency Program, on or before July 1, 2020.” (Doc. 9 at PAGEID # 435.)

Defendants Kettering Adventist Healthcare, Lyndetta Schwartz, M.D., F.A.C.P., and Joshua

Hamilton, M.D. (collectively, “Defendants”) received notice of the T.R.O. Motion. Defendants

filed a memorandum in opposition to the T.R.O. Motion on June 14, 2020. (Doc. 11.) On June

15, 2020, the Court conducted a phone conference with counsel for all parties and heard additional

argument regarding the T.R.O. Motion.

In her First Amended Complaint, Burton alleges that she was employed by KMC as a

medical resident in KMC’s Internal Medicine Residency Program, she was terminated on

September 5, 2019, and she was told that day by Dr. Schwartz that she was terminated for not

reporting to work until 3:00 p.m. on August 13, 2019. (Doc. 4.) Burton brings claims for: (1)

breach of contract; (2) discrimination in violation of the Ohio Civil Rights Act; (3) discrimination

in violation of the Rehabilitation Act; (4) violation of the Family and Medical Leave Act; and (5)

tortious interference with a prospective contractual relationship. (Id.) Defendants removed the

action to this Court, which has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) with

respect to the claims arising under the Constitution, laws, or treaties of the United States and

pursuant to 28 U.S.C. § 1367 (supplemental jurisdiction) with respect to the other claims. Burton

earlier filed a motion for preliminary injunction (Doc. 6) (the “P.I. Motion”), in which she

essentially asks for the same injunctive relief as the T.R.O. Motion. The P.I. Motion remains

pending. Defendants filed a written response in opposition to the P.I. Motion, and Burton filed a

written reply in support of the P.I. Motion. (Docs. 7 and 8.)

A temporary restraining order (“TRO”) is an extraordinary remedy. Fed. R. Civ. P. 65;

Kendall Holdings, Ltd. v. Eden Cryogenics LLC, 630 F. Supp. 2d 853, 860 (S.D. Ohio 2008). The

Court considers and balances four factors in determining whether to grant or deny a motion for a

TRO: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the

movant would suffer irreparable injury without the injunction; (3) whether issuance of the

injunction would cause substantial harm to others; and (4) whether the public interest would be

served by issuance of the injunction.” Williamson v. Recovery Ltd. P’ship, 731 F.3d 608, 627 (6th

Cir. 2013); see also Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008);

Libertarian Party of Ohio v. Husted, No. 2:13-cv-953, 2014 U.S. Dist. LEXIS 200934, at *3, 2014

WL 12647018 (S.D. Ohio Sept. 24, 2014). “The factors are not prerequisites to injunctive relief;

rather, the Court must balance them to determine whether they weigh in favor of granting a TRO

or injunction.” Libertarian Party of Ohio, 2014 U.S. Dist. LEXIS, at *3 (citing McNeilly v. Land,

684 F.3d 611, 615 (6th Cir. 2012)). “The moving party bears the burden of justifying issuance of

an injunction, including showing likelihood of success and irreparable harm.” Id.

Regarding the first factor, the Court finds that Burton has not shown that she has a “strong

likelihood of success on the merits of her claims” at this stage of the litigation.1 Based on what

has been presented, the Court simply cannot say—at this point—that Burton has a “strong”

likelihood of success on any of her claims.

Regarding the second factor, the Court recognizes that some courts have found irreparable

injury in certain circumstances where there is interruption of an educational program or delay in

the ability to pursue a chosen profession, especially where it is coupled with other types of harm.

Sellers v. Univ. of Rio Grande, 838 F. Supp. 2d 677, 687 (S.D. Ohio 2012) (“There is some

authority for the proposition that an interruption in an educational program is not, of itself, an

irreparable injury. There is contrary case law, however, especially when the denial of an

educational opportunity is coupled with other types of harm. … Other courts have similarly found

even a delay in the ability to pursue a chosen profession to be the type of irreparable harm which

will support temporary injunctive relief.”) (internal citations omitted). However, the Court finds

that the irreparable nature of the injury Burton would suffer without the requested injunction is, to

a large extent, self-inflicted by Burton’s delay in seeking a TRO. See Libertarian Party of Ohio,

2014 U.S. Dist. LEXIS, at *8 (denying motion for TRO and finding that, despite the fact that the

plaintiff would suffer harm without a TRO, the harm to the plaintiff was largely self-inflicted

because of plaintiff’s failure to seek a TRO with diligence); Allied Erecting & Dismantling Co.,

Inc. v. Genesis Equip. & Mfg., Inc., 511 F. App’x 398, 405 (6th Cir. 2013) (“an unreasonable delay

in filing for injunctive relief will weigh against a finding of irreparable harm”); Ne. Ohio Coal. for

1 This finding, as well as the Court’s other determinations in this Order, applies only to Burton’s T.R.O. Motion, and

the Court will consider each of the factors in connection with Burton’s P.I. Motion following a hearing on that

motion. See Libertarian Party of Ohio, 2014 U.S. Dist. LEXIS, at *7-8; Fed. R. Civ. P. 65.

the Homeless v. Husted, No. 12-4354, 2012 U.S. App. LEXIS 26926, at *16 (6th Cir. Nov. 16,

2012) (plaintiff’s claim of irreparable injury was belied by waiting to raise its concerns).

Burton states in her supporting affidavit that, to her knowledge, “all the medical residency

programs start on July 1.” (Doc. 9-1 at PAGEID # 443.) Yet, Burton was terminated from KMC’s

residency program on September 5, 2019—over eight months prior to filing her original complaint

and her original motion for preliminary injunction, and over nine months prior to filing her T.R.O.

Motion. Burton indicates that she retained counsel after her termination and that both she and her

attorney sent appeal letters to KMC back in mid-November 2019 (i.e., over six months ago). She

states that the letters were part of her “efforts to explore whether KMC would be willing to

reconsider [her] termination.” (Id. at PAGEID # 442.)

Although KMC did not respond to her appeal letters (and there is no indication KMC ever

considered reinstating her), Burton “did not want to file a lawsuit against KMC.” (Doc. 9-1 at

PAGEID # 442.) Burton certainly had the right to choose not to sue her former employer. Instead,

after receiving no response, she then “decided that [she] had to get [her] life back on track, and

[she] started looking into applying to another residency program.” (Id.) According to Burton, she

reached out to several residency programs and submitted applications, but “[f]rom the responses

to [her] applications,” she learned that she would need a letter of reference from KMC before she

would be accepted into any accredited residency program. (Id.) She “then contacted KMC and

requested a letter of reference,” and, “[s]hortly thereafter,” Dr. Schwartz sent her a reference letter

dated April 3, 2020. (Id.) Burton says that she “do[es] not know of any residency program that

would accept [her] after seeing Dr. Schwartz’s reference letter,” and that “[a]t this point it is too

late for [her] to apply to another residency program that will start before 2021.” (Id. at PAGEID

# 443.)

Although Burton provides reasoning for why she did not file a lawsuit or move for a TRO

earlier, it remains that she chose not to file a lawsuit and move for injunctive relief several months

ago. She even acknowledges her “delay in pursuing this litigation.” (Doc. 8 at PAGEID # 430.)

That delay played at least a significant part in the now urgent nature of the relief requested in the

TRO. Also, there is no evidence that Defendants (or anyone) prevented Burton from learning that

residency programs start on July 1 or that she allegedly would need a letter of reference from KMC

(and she admits that Dr. Schwartz promptly provided such a letter upon request). While it was

certainly reasonable for Burton to have waited a period of time for a response to her appeal letters

before filing a lawsuit, her subsequent decisions and passage of several months cause her delay in

filing to become unreasonable for purposes of the irreparable injury analysis in the context of the

TRO requested (i.e., ordering her reinstatement to KMC’s medical residency program on or before

July 1, 2020). Additionally, Burton failed to explain why she must be reinstated on the first day

of KMC’s residency program, particularly in light of her allegation that she was terminated from

KMC’s program in the middle of its second year.

Burton’s delay in seeking a TRO or preliminary injunction does not preclude “any

possibility of relief or absolutely preclude[] a showing of irreparable harm.” Fenje v. Feld, No. 01

C 9684, 2002 WL 1160158, at *2, 2002 U.S. Dist. LEXIS 9492 (N.D. Ill. May 28, 2002) (involving

lawsuit following termination from residency program). “The delay, however, is still a factor to

be considered.” Id. And, in addition to being considered in balancing the hardships, “delay in

pursuing relief undercuts claims of irreparable harm and may be considered as circumstantial

evidence that the potential harm to plaintiff is not irreparable or as great as claimed.” Id.; see also

Kendall Holdings, 630 F. Supp. 2d at 867 (“[t]he length of time that a party takes to file suit or

request injunctive relief is also relevant to the irreparable harm inquiry. A delay between the

discovery of the allegedly infringing conduct and the request for injunctive relief can support an

inference that the alleged harm is not sufficiently severe or irreparable to justify injunctive relief.”)

(internal citation omitted).

The issue is similar to that presented in Patel v. St. Vincent Health Ctr., No. CV 12-0298,

2013 U.S. Dist. LEXIS 122181, 2013 WL 4591271 (W.D. Pa. Aug. 28, 2013). The plaintiff in

that case likewise sought an order directing the defendant to reinstate her into the defendant

hospital’s residency program. Id., at *2. The plaintiff argued that, “in the absence of injunctive

relief, she will be irreparably harmed because she will not be able to gain admission to another

residency program specializing in emergency medicine,” and, “[c]onsequently, she will be

ineligible to take the Board Certification Exam in Emergency Medicine or obtain a position as an

emergency medicine physician.” Id., at *15. The court denied plaintiff’s motion, finding that the

irreparable injury factor “vitiates against an award of injunctive relief” due to the delay between

her termination from the residency program and her initiation of the lawsuit. Id. at *15-16. The

delay “undermine[d] her assertion that irreparable harm is imminent.” Id.

Regarding the third and fourth factors, Burton’s supporting caselaw recognizes that

reinstatement to the residency program would “be potentially harmful to [its provider] in that it

would place the [medical provider] at risk of malpractice liability.” Fenje, 2002 WL 1160158, at

*8. And, contrary to Burton’s argument, there is “potential risk to the public” when the resident

would be attending to patients—as is the case here. Id. Burton did not dispute that there were

times prior to her termination when she did not show up for her shift (whether not on time or not

at all), she did not provide prior notice of her tardiness or absence, and the result was that her

colleagues and other medical staff needed to scramble to take care of her patients. Based on what

has been presented, Defendants raise legitimate, substantial interests and concerns that weigh

against granting her requested relief. (Doc. 7 at PAGEID # 332 (“KMC has a substantial interest

in protecting the health and safety of its patients. Plaintiff’s [alleged] tardiness and attendance

issues with reporting to work alone are detrimental to the public as they result in unplanned

understaffing that impacts the safety of KMC’s patients. The public interest is not served by

forcing KMC to reinstate physicians into its internal medicine residency program who are

unreliable.”); see also, e.g., Doc. 11-1 at PAGEID # 492-93 (August 12, 2019 warning letter

expressing, among other concerns with Burton’s alleged “persistent and recalcitrant absenteeism

and tardiness without notice,” that “it left [her] colleagues and patients vulnerable”); id. at

PAGEID # 476; id. at PAGEID # 480; id. at PAGEID # 486.

The Court concludes that, having considered and balanced the four factors, they do not

weigh in favor of granting the TRO requested and that Burton has failed to satisfy her burden of

justifying its issuance.2 The Court emphasizes that this is not determinative of a ruling on the P.I.

Motion or at a trial on the merits. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S. Ct.

1830, 68 L. Ed. 2d 175 (1981) (“the findings of fact and conclusions of law made by a court

granting a preliminary injunction are not binding at trial on the merits”). The Court DENIES

Plaintiff’s Motion for Temporary Restraining Order (Doc. 9).3

DONE and ORDERED in Dayton, Ohio, this Tuesday, June 16, 2020.

s/Thomas M. Rose

________________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE

2 The Court also notes that Burton completely failed to address the security requirement set forth in Federal Rule of

Civil Procedure 65(c).

3 The Court will schedule a conference call with the parties to discuss scheduling a hearing on the P.I. Motion and

Burton’s general request for discovery prior to such hearing.