Orwick v. Mercy Health

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

ROBERT ORWICK, : Case No. 1:20-cv-113

Plaintiff, 2 Judge Matthew W. McFarland

v.

MERCY HEALTH, et al.,

Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

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

which Defendant 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 Orwick (“Plaintiff”) has sued his former employer,

Defendant Bon Secours Mercy Health (“Mercy Health”) and Crissie Tino, Plaintiff's

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 the record,

summary judgment is appropriate.

I. Plaintiff’s Employment at Mercy Health

Plaintiff's employment with Mercy Health began in October 2007 when he was

hired as a full-time surgical assistant. (Robert Orwick Deposition (“Orwick 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, “I

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, “I have 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

(“Kramer 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.)

During his tenure at Mercy Health, Plaintiff was a well-respected surgical assistant

and preferred by multiple doctors at Mercy Health. (Kim Auberger Deposition

Auberger Dep.”), Doc. 18, Pg. ID 582.) However, he did have some employment-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 had been

administering the testosterone since December of 2017. (Orwick Health Records, Doc. 17-

1, Pg. ID 361.) In fact, Plaintiff was on a regular treatment schedule and received a four-

to-six-month advanced supply of syringes and needles for these injections. (Orwick Dep.,

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 appointment.

(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 treatment that would cause drowsiness. (Id. at Pg. ID 438; see

also Auberger Dep., Doc. 18, Pg. ID 587-88.)

Ill, Plaintiff’s Termination

On Saturday, June 23, 2018, at approximately 8 A.M., Plaintiff realized that he did

not have the necessary needle and syringe to inject himself with his testosterone hormone

replacement treatment. (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. ID 75, 89.) He did not clock in when he 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 used needles and syringes he brought from home. (Id. at Pg. ID 91-92, 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. at Pg. 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 restricted 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

prescription was filled. (Id. at Pg. ID 122.)

After leaving Mercy Health on June 23rd, 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[.]

(June 23, 2018 Text Chain, Doc. 17-1, Pg. ID 351.)

Additionally, Candace Smith, one of Plaintiff's co-workers, informed Auberger

she witnessed 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 she immediately screenshotted

Plaintiffs text and sent it to Defendant Cryssie Tino (“Tino”), Mercy Health's

perioperative director and Auberger’s superior. (Auberger Dep., Doc. 18, Pg. ID 577, 625-

27). 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 instructed 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 was required to provide a written statement that explained his conduct prior

to that meeting. (Beisel Dep., Doc. 20, Pg. ID 771-73.)

Also on June 23, Auberger reached out to Dave Hampton, a member of the security

team at Mercy Health. (Auberger Dep., Doc. 18, Pg. ID 628-29); (Orwick Dep., Doc. 17,

Pg. ID 245.) Hampton informed Auberger that when an individual “is found taking drug

paraphernalia, which is a needle and syringe, is that it has to be reported to [the police].”

(Auberger Dep., Doc. 18, Pg. ID 629.) Hampton later informed Auberger that Mercy

Health security needed additional information regarding Plaintiff to provide to the Green

Township police. (Id. at Pg. ID 630.) Auberger then heard directly from Jessica Grgas on

behalf of Green Township asking for additional information regarding June 23 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 PTSD. (Id.) Wright then explained that he was

interested in what had occurred and what was going to happen to Plaintiff. (Id.) Wright

explained he had reservations about terminating Plaintiff. (See id.) Wright then contacted

Tino to discuss Plaintiff's 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 entry Regarding

Plaintiffs Arrest, Doc. 17-1, Pg. ID 352.) However, the charges were dropped by the

Hamilton County Assistant Prosecuting Attorney on July 18, 2018. (Id. at Pg. ID 356.)

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

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 Plaintiff's situation, and he did not

think bringing a statement would do any good. (Id.) Beisel and Tino then moved forward

with terminating Plaintiff's 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.” (Orwick Dep., Doc. 17-

1, Pg. ID 357.) He explained that he required mental treatment and felt that he “had no

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]orrowed 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 Plaintiff's case and submitted a

recommendation to Mercy Health’s CEO. (DRT Recommendation, Exhibit 15 to Kramer

Dep., Doc. 21, Pg. ID 900.) DRT’s Recommendation, submitted on July 9, 2018, stated that

“[p]er the Standards of Conduct and Performance policy, theft is a major infraction that

may result ina final written warning or termination of employment.” (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.)

Michael Kramer, Mercy Health’s Chief Executive Officer, reviewed DRI’s

Recommendation. (Kramer 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.

(Id. at Pg. ID 863.)

V. Procedural History

After his termination was upheld, “Plaintiff filed a charge against Defendants 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

about January 9, 2020. (Id.) Plaintiff subsequently filed this action within 90 days, 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. (Jd. at Pg. ID 3-6.)

During litigation, Plaintiff dismissed Count I against Defendant Tino,

individually, and Count II] and Count IV in their entirety against both Defendants.

(Amended Stipulation of Partial Dismissal of Action, Doc. 15, Pg. ID 58.) Accordingly, the

remaining cause of actions are: Count I - Disability Discrimination in violation of the

ADA against Mercy Health, Count II - Disability Discrimination in violation of Ohio Rev.

Code § 4112.02 against both Defendants, and Count V - Intentional Infliction of Emotional

Distress against both Defendants.

LAW AND ANALYSIS

Courts must grant summary judgment if the record “reveals that there is no

genuine issue as to any material fact and the moving party is entitled to a judgment as a

matter of law.” Laster v. City of Kalamazoo, 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

issue of material fact remains, the nonmoving party must present “specific facts showing

that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 US. 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... in the light most favorable to the nonmoving party.” Keweenaw Bay Indian Comm.

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 of material 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).

I. Defendants are Entitled to Summary Judgment on Plaintiff's 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 Plaintiff's

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 distress

claim because Defendants’ conduct was neither extreme nor outrageous. Plaintiff, on the

other hand, claims that genuine issues of material fact exist as to all his remaining claims

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., 634 F. 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.

Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 453 (6th Cir. 2004). When, as in this case, a

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plaintiff relies exclusively on indirect evidence, a court must apply the McDonnell Douglas

burden-shifting framework. See Gohl v. Livonia Pub. Sch. Dist., 836 F.3d 672, 682 (6th Cir.

2016) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)).

Under the McDonnell Douglas 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] suffered an adverse employment decision, (4) [his] employer knew or had reason to

know of [his] disability, 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.

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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 he has established a prima

facie case of disability discrimination. Plaintiff first argues that he had an actual disability

based on his diagnosis of PTSD, Bipolar Disorder, Depression and Hypogonadism 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 informed 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

Plaintiff has satisfied his burden, will assume that a prima facie case has been established.

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

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introduction of admissible evidence, reasons for [their] actions which, if believed by the

trier of fact, would support a finding that unlawful discrimination was not the cause of

the employment decision.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).

“IVJiolations 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. Ohio 2020) (citing Blackshear v. 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,

theft is a violation of Mercy Health policies and is known as a terminable offense. (Kramer

Dep., Doc. 21, Pg. ID 868-69.) And Plaintiff signed a certification promising to adhere to

all Mercy Health policies. (Certification, Doc. 17-1, Pg. ID 313.)

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, Plaintiff’s 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 Dictionary (11th 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

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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.

Cc. 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.” Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d

553, 558 (6th Cir. 2009). Additionally, “[P]laintiff may also demonstrate 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, Plaintiff cannot prove that Defendants’ reason has no basis in fact. Plaintiff

has admitted that he, in fact, entered Mercy Health on June 23, his day off, entered

multiple sterilized locations carrying an unsterilized box containing used syringes and

needles while being unsterilized himself, disposed of the used syringes and needles 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

behavior by texting his supervisor. (June 23, 2018 Auberger and Orwick Text Chain, Doc.

17-1, Pg. ID 351.) Accordingly, Defendants’ proffered reason for Plaintiff's termination

clearly has a basis in fact.

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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. ID 625-27.) Indeed, Defendants were informed by

Mercy Health’s head of security that, due to the nature of Plaintiff's conduct, Mercy

Health’s human resources department must contact Green Township police to report the

theft. (Id. at Pg. ID 629-31.) Further, Mercy Health reacted by terminating Plaintiff only

two days after the theft. (Tino Dep., Doc. 24, Pg. ID 1050; Beisel Dep., Doc. 20, Pg. ID 775-

76.) Given the genuine reactions of Plaintiff's supervisors and the temporal proximity

within which Mercy Health responded, the only reasonable conclusion is that Defendants

terminated Plaintiff because of the theft.

Third, Defendants’ proffered reason was sufficient to warrant Plaintiff's

termination and was reasonable. Mercy Health has a policy against employee theft.

(Kramer Dep., Doc. 21, Pg. ID 868-69.) Violation of this policy is a terminable offense. (Id.)

Plaintiff signed a Certification and an Employment 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 who violated the policy against employee theft.

Kramer Dep., Doc. 21, Pg. ID 869.)

Although Mercy Health indicated that whether theft is terminable is based on the

specific circumstances of the situation, (see id.), Plaintiff points to no facts to suggest that

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his termination was the result of anything other than his behavior. As set forth above,

Plaintiff's 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

was not unanimous, and even DRT recognized that theft “is a major infraction” that could

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 reason was solely pretextual. Plaintiff claims that a genuine issue of material

fact exists as to whether Defendants’ proffered reason was solely pretext, because “no

one sought or considered Plaintiff's explanation” that he was not stealing 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 of drugs or drug paraphernalia so long as they intend to replace it. Such conduct

by an employer would be reckless, Furthermore, Plaintiff points to no comments or

alleged differential treatment that could conceivably relate to his disability — 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 Plaintiff's claims of

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disability discrimination in violation of the ADA and in violation of Ohio Rev. Code §

4112.02, as a matter of law.

II. Defendants are Entitled to Summary Judgment on Plaintiff’s Intentional

Infliction of Emotional Distress Claim as a Matter of Law.

Next, Defendants argue that Plaintiff's intentional infliction of emotional distress

claim fails as a matter of law. In Ohio, “a plaintiff must prove (1) that the defendant

intended to cause the plaintiff serious emotional distress, (2) that the defendant’s conduct

was extreme and outrageous, and (3) that the defendant’s conduct was a proximate cause

of plaintiff’s serious emotional distress.” Phung v. Waste Mgt., Inc., 71 Ohio St.3d 408, 410,

644 N.E.2d 286 (1998). Because Defendants’ conduct was not extreme and outrageous,

Defendants are entitled to summary judgment on Plaintiff’s claim for intentional

infliction of emotional distress.

“[C]onduct giving rise to an intentional infliction of emotional distress claim must

be so outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, 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, “an employee's termination, even if based upon discrimination, does not rise to the

level of extreme and outrageous conduct without proof of something more. If such were

not true, then every discrimination claim would simultaneously become a cause of action

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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.1, Pg. ID 6.) However, Plaintiff does not argue that any

additional conduct other than Plaintiff's termination and Defendants’ affirmance after

Plaintiff's appeal (1) constituted extreme or outrageous conduct or (2) was a proximate

cause of any of Plaintiff's alleged emotional distress. (See Plaintiff's Response in

Opposition, Doc. 28, Pg. ID 1586-87.)

This Court found above that Defendants’ conduct did not constitute

discrimination on the basis of Plaintiff's 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 Godfredson, 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

Plaintiffs intentional infliction of emotional distress claim as a matter of law.

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CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment is

GRANTED. Thus, Count 1 of Plaintiff's Complaint, Count 2 of Plaintiff’s Complaint, and

Count 5 of Plaintiff's Complaint are DISMISSED WITH PREJUDICE. Therefore, this

case is TERMINATED from the Court's docket.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

By: ty

JUDGE MATTHEW W. McFARLAND

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