Swanson M.D. v. University of Cincinnati, 99-3993

• Decision Date: 06 June 2001
• Docket Number: No. 99-3993,99-3993
• Citation: 268 F.3d 307
• Parties: (6th Cir. 2001) John Swanson, M.D., Plaintiff-Appellant, v. University of Cincinnati and University Hospital, Inc., Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 307

268 F.3d 307 (6th Cir. 2001)

John Swanson, M.D., Plaintiff-Appellant, v. University of Cincinnati and University Hospital, Inc., Defendants-Appellees.

No. 99-3993

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 6, 2001

Decided and Filed: September 20, 2001

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.No. 97-01143. Sandra S. Beckwith, District Judge. [Copyrighted Material Omitted] Teresa L. Cunningham (argued and briefed), Florence, Kentucky, Raul E. Tellez (briefed), SCHUH & GOLDBERG, Cincinnati, Ohio, for Appellant.

Rosemary Doreen Canton (argued and briefed), Rachael K. House, TAFT, STETTINIUS & HOLLISTER, Cincinnati, Ohio, for University of Cincinnati.

R. Kenneth Wellington II (argued and briefed), Bruce I. Petrie, Jr. (briefed), GRAYDON, HEAD & RITCHEY, Cincinnati, Ohio, for University Hospital, Inc.

Before: KEITH, SILER, and CLAY, Circuit Judges.

OPINION

SILER, Circuit Judge.

John D. Swanson appeals the district court's grant of summary judgment to the University of Cincinnati ("UC") and University Hospital, Inc. ("UHI") on his claims of employment discrimination based on disability under Titles I and II of the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, and Ohio's anti-discrimination statute.

We AFFIRM the district court's decision that Swanson does not qualify as an individual with a disability under the ADA, the Rehabilitation Act, and the Ohio anti-discrimination statute. As a result, this court need not resolve the issues of whether Title II applies to employment discrimination claims against public entities or whether UHI is a proper defendant.

I. BACKGROUND

After completing medical school at the University of Nevada, Swanson was accepted as a categorical general surgical resident at UC in May 1995.¹ UC and Swanson entered into a one-year contract, running from July 1, 1995 to June 30, 1996, under which he received a salary and was covered by UC and the House Staff Association's collective bargaining agreement. UC accepts residents under the precept that they will complete their program if they meet expectations.

UC's surgical residency program typically involves five years of practicing medicine and treating hospital patients as well as two years of laboratory research. During the first year, Swanson had 30-day rotations in general surgery, thoracic surgery, transplantation, pediatric surgery, trauma, and burns at various hospitals in Cincinnati. After each rotation, the attending doctors and chief residents of the service completed a performance evaluation for each resident in the areas of patient care and clinical judgement, medical knowledge, technical and procedural skills, attitude and professional behavior, and medical record. Performance ratings include 1 for distinctly superior to other residents, 2for at times superior to other residents, 3 for similar to other residents, 4 for at times below other residents, and 5 for clearly below other residents. Residents also receive numerical grades with 100-95 as outstanding, 94-90 as very good, 89-85 as good, 84-80 as adequate, and 79 and lower as below adequate.

During his July 1995 rotation in thoracic surgery, Swanson's sole evaluator assigned him a 1 for attitude and professional behavior, 2's in the other categories, and a grade of 95, noting no weaknesses. His ratings dropped during his transplantation rotation. One reviewer gave him 3's in the first three categories and 2's in the last two, with an overall score of 94. The second reviewer assigned him 4's in the first two categories and 3's in the last two, with a score of 85. The second reviewer commented that Swanson had a strong work ethic, but "seemed overwhelmed at times" and was "very slow to pick up how to get the work done."

From September to December 1995, Swanson's evaluations from his surgery rotations included 1's or 2's for attitude and professional behavior, but fluctuated between 3 and 4 in the areas of patient care and clinical judgment, medical knowledge, and technical and procedural skills. Most reviewers noted deficiencies in his technical and organizational skills, particularly prioritization. During this time, Swanson took the American Board of Surgery Basic Science/In-Training Examination, a standardized test measuring general surgery knowledge, and scored poorly.

From January to April 1996, Swanson had rotations with pediatric surgery, VA medical service, and thoracic surgery. He received two 2's, three 3's, and a 5 for technical and procedural skills; three 2's, two 3's, and a 3-4 in medical knowledge; and two 2's, two 3's, and a 3-4 and 4 in patient care and clinical judgement. Scores in attitude and professional behavior and medical record ranged from 1 to 4. Some reviewers noted no weaknesses, while others criticized his aggressive approach in managing staff, deficient technical skills, and ineffective organizational skills. His numerical scores ranged from 88 to 95.

In May 1996, Dr. Bower conducted Swanson's first six-month evaluation based on his performance reviews and his standardized test score. Finding Swanson's performance to be "below the level expected," Dr. Bower placed him on academic probation until September 30, 1996. He also recommended counseling to improve Swanson's methods of study and ability to organize and prioritize tasks in patient care. Swanson was also informed that at the end of probation, a decision would be made whether to extend his academic probation or discontinue his residency training.

From May to June 1996, Swanson's evaluations dropped significantly on his burns and surgery rotations. He received a 4-5 and four 5's in patient care and clinical judgment, a 3 and four 4's in medical knowledge, and two 3's and a 4 in technical and procedural skills. His score for medical record hovered at 3 and attitude and professional skills ranged from 3 to 5. His overall score was between 70 and 80.

Based on the recommendation of Dr. Fischer, who evaluated him in June, Swanson sought help from Dr. Barker, a psychiatrist in July. She diagnosed him as suffering from major depression arising from the break-up of a significant four-year relationship, his parents' separation while he was in college, and other personal losses. Swanson told Dr. Barker that he had been experiencing poor concentration, an inability to speak, tearfulness, and feeling withdrawn and exhausted. He stated that he only slept four to five hours per night, but his sleep was not disturbed. In her mental status exam, Dr. Barker found that Swanson's thought processes were logical and coherent, and he was cognitively intact.

Though he resisted at first, Swanson began to take Paxil, an antidepressant, on July 23, and his condition improved. Because his medication had a sedative effect, Dr. Barker switched him to Prozac on August 12. During the transition, Swanson's symptoms recurred and his dosage was increased until it was therapeutically effective. Dr. Barker states that Prozac's optimal effect occurs after a four week period.² Swanson also had therapy sessions with Dr. Barker in July and August, 1996, but none between early August and November due in part to his work schedule.

From July to September, Swanson's surgery and trauma rotations yielded mediocre reviews. He received a 2, two 3's, three 4's, and two 5's for patient care; a 2, three 3's, two 4's and two 5's for medical knowledge, and two 2's, two 3's, a 3-4, and two 4's for technical skills. Some reviewers noted continuing problems with organization and prioritization, bad rapport with other hospital staff, and unreliable clinical assessments, while others noted improvements in his patient care and medical knowledge. His overall scores ranged from 79 to 91.

During his September 11 meeting with Dr. Bower regarding his progress, Swanson stated that he believed his medication was helping his concentration and that his clinical performance had improved. From his observations during this meeting, Dr. Bower believed that the counseling and medication had improved Swanson's attitude and ability to converse. Subsequently, Dr. Bower received Swanson's July to August evaluations which demonstrated some improvement in medical knowledge but Swanson's organizational skills, clinical assessment abilities, technical skills, and rapport with staff were deficient. On September 17, the Residency Review Committee approved Dr. Bower's recommendation to terminate Swanson's residency. When Swanson and Bower met on September 25, Bower informed him that his probation was extended for at least another month but most likely, his contract would not be renewed. Based on Swanson's evaluations, Dr. Bower pointed out that he improved while working in a structured environment but his performance deficiencies reappeared when he was assigned to a busy service with numerous patients. Dr. Bower recommended that because surgery may not be the best fit, Swanson should consider applying to another specialty for a residency.

Swanson's October evaluations from his trauma rotation demonstrated no improvement from prior months. He received two 4's and a 4.5 in patient care; a 3, 4.5, and 5 in medical knowledge, and a 3 and two 4's in technical skills. His numerical score fell between 79 and 84. On October 24, Dr. Bower presented the Resident Review Committee's termination recommendation to the entire faculty and it was approved. Swanson was informed that the faculty's decision to terminate his appointment was effective by letter on October 31, 1996, and that he could present additional information at an internal hearing scheduled to review his termination on November 6. In addition, the letter stated that his salary and benefits would continue through November 14. Dr. Bower also relieved him of his clinical duties. Swanson contacted Dr. Barker regarding his dismissal and her notes state that he was calm and cognitively intact.

At the internal...