Klein v. Manor Healthcare Corp., s. 92-4328

• Decision Date: 22 March 1994
• Docket Number: 92-4347,Nos. 92-4328,s. 92-4328
• Citation: 19 F.3d 1433,1994 WL 91786
• Parties: 5 NDLR P 87 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Jack B. KLEIN; Jack B. Klein, Executor of the Estate of Carol Ann Klein, Deceased, Plaintiffs-Appellants, v. MANOR HEALTHCARE CORPORATION, Jerry Cangelosi, Rob Vadis, Wanda I. Cordero, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1433

19 F.3d 1433

5 NDLR P 87

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Jack B. KLEIN; Jack B. Klein, Executor of the Estate of Carol Ann Klein, Deceased, Plaintiffs-Appellants, v. MANOR HEALTHCARE CORPORATION, Jerry Cangelosi, Rob Vadis Wanda I. Cordero, Defendants-Appellees.

Nos. 92-4328, 92-4347.

United States Court of Appeals, Sixth Circuit.

March 22, 1994.

Before: KENNEDY and GUY, Circuit Judges; and CONTIE, Senior Circuit Judge.

PER CURIAM.

In this handicap discrimination case, plaintiff appeals the decision of the district court granting defendants' motion for summary judgment. On appeal, plaintiff argues that genuine issues of material fact exist as to whether defendants' conduct constitutes handicap discrimination within the meaning of the operative federal and state statutes. Plaintiff further argues that the district court erred by allowing defendants to amend their removal petition and by granting defendants' motion to strike certain evidentiary material. For the following reasons, we affirm.

I.

In 1986, Carol Klein was diagnosed with colon cancer. She received surgical treatment for her cancer and appeared to be well on her way to recovery. In 1987, Mrs. Klein, a licensed physical therapist ("LPT"), began her employment with Manor Healthcare Corporation ("Manor Care") in Euclid, Ohio, as the Director of Rehabilitative Services/Physical Therapy at Manor Care's Lakeshore facility. In her application, she revealed that she had had cancer, but that she felt the surgery had cured her.

Unfortunately, her bout with cancer would resume in 1988, when it was discovered that the cancer had metastasized to her brain and lung. Again, she underwent surgery, which necessitated an extended leave of absence from her job with Manor Care. Although not fully recovered, she returned to work six months later. The illness had caused some weight and vision loss, and she was taking Dilantin, an anti-seizure medication. Despite her difficulties, it appears she competently discharged her duties with Manor Care through 1989.

In early 1990, Wanda Cordero became the administrator of the Lakeshore facility. This, at least according to Mrs. Klein's husband, Jack Klein ("plaintiff"), would mark the beginning of the end for Mrs. Klein's relationship with Manor Care. In the aftermath of Cordero's arrival, Mrs. Klein felt that her views were being ignored by the staff. Furthermore, plaintiff claims Cordero was not particularly receptive to his wife's request for assistance. As Cordero would later testify:

I spoke to Carol Klein in the physical therapy department. At this time she stated to me that, quote, she was overwhelmed with the paperwork, end quote. I asked her what we could do, what we could do, she stated she did not have an assistant. At this time I told her I could have Mimi Preisler or Terri [Steirer] here to help her.

(App. 724.)

Cordero claims to have followed through on her promise. Initially, she assigned Preisler, an LPT, to assist Mrs. Klein while she regained her strength. Two other Manor Care employees, Agnes Puro and Dawn Geiser, took over for Preisler once Mrs. Klein returned to her normal duties. While Puro and Geiser were assisting Mrs. Klein, Preisler and her administrative assistant, Steirer, were also made available to her on an as needed basis.

The adequacy of the assistance provided to Mrs. Klein by Cordero is a matter of some dispute. In support of his assertion that Mrs. Klein was in need of more assistance than was actually provided by Manor Care, plaintiff notes that Manor Care, following Mrs. Klein's first performance review, made it a "30-day objective" to recruit a licensed physical therapy assistant ("LPTA") to help her. In plaintiff's estimation, this indicates Manor Care's recognition of the fact that "even a healthy, normal, not handicapped person, such as Carol then was, could not treat patients, prepare charts and all paperwork for the State Examiner, Medicare and Medicaid, bill private insurance companies, as well as supervise her department all on her own."

Plaintiff also observes that of the people assigned to assist his wife, only one, Preisler, was an LPT. As he explains: "[U]nlicensed help was of very little practical benefit to Carol because unlicensed help lacked the educational and skill level as well as the statutory authorization to give Carol both quantitatively and qualitatively the level of assistance that she needed." Plaintiff further contends that even Preisler did little to ease Mrs. Klein's day-to-day burdens. In fact, plaintiff maintains that, far from providing assistance, "[t]he main purpose of [Preisler's] presence in Carol's department would seem to be so that Mimi Preisler could observe and report on Carol for ... Cordero since [Preisler] was instructed by ... Cordero 'to evaluate the situation ' [in the department]." ¹

Irrespective of Preisler's true motives, one thing was for certain: Mrs. Klein was not her old self. Asked to detail the problems Mrs. Klein was experiencing, Cordero responded:

Well, there were several concerns, particularly in [regard] to memory, recalling a resident's name that she was taking care of. She was overwhelmed. What we would consider normal documentation having to rewrite things over and over again, not completing things, having seizures in the department, coughing up blood, not knowing what treatments she was doing on residents.

(App. 663; emphasis added.) In addition, Mrs. Klein began to behave erratically. On one occasion, believing that someone had stolen money from her locker, she erupted into a tirade, slamming doors and yelling in anger. Although no evidence was ever uncovered to substantiate her belief, her emotional outburst continued for two days. ² Not surprisingly, her bahavior was regarded as inappropriate for a nursing home.

In an attempt to address problems with Mrs. Klein's performance, a meeting was held in September of 1990. ³ Attending the meeting were: Mrs. Klein; Cordero; Rob Vadis, Cordero's supervisor; and Jerry Cangelosi, Manor Care's human resources manager. As a result of this meeting, Mrs. Klein resigned from her position with Manor Care, although exactly what prompted her decision is disputed. According to plaintiff, during the meeting "Carol was told she must resign or probably be terminated because her work performance was substandard[.]" The Manor Care representatives provide a somewhat different account of what took place during the meeting: "Although there was no request for her to resign, the subject was discussed and Mrs. Klein resigned."

Mrs. Klein finally succumbed to cancer in May 1991. The instant action was initiated on September 9, 1991, when plaintiff, individually and as executor of his wife's estate, filed a ten-count complaint in Ohio state court. Named as defendants were Manor Care, Cangelosi, Vadis, and Cordero. In addition to alleging various state claims, ⁴ plaintiff sued defendants for wrongful termination pursuant to sections 4112.02(A) and (J) of the Ohio Revised Code, and for handicap discrimination pursuant to section 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794.

On October 8, 1991, defendants Manor Care, Cangelosi, and Cordero filed a petition removing this matter to federal district court. ⁵ Defendant Vadis did not join in the petition due to the fact that he had not yet been served. On October 29, plaintiff, noting that defendants' petition had not explained Vadis's failure to join, moved for the case to be remanded to state court. ⁶ Plaintiff's motion was denied by the district court in an order dated November 21, 1992. The court reasoned:

Removal in this case is predicated on the assertion of the federal handicap claim. Such a claim can only be asserted against the employer which in this case joined in the removal petition. Under such a scenario, only the defendants subject to the federal claim need sign the petition for removal.

(App. 30.)

Subsequently, plaintiff twice moved for reconsideration of the November 21 order. Although the court did grant the second such motion, it permitted defendants to amend their removal petition to explain Vadis's non-joinder. ⁷ In deciding against remand once again, the court merely stated that "[a]fter the thirty days [from the defendants' receipt of plaintiff's state court complaint] has passed, it is still permissible for a party, granted leave, to amend its petition to correct any defects." (Id. at 35; citations omitted.) The court did not reassert its earlier contention that only Manor Care's signature was needed to secure removal of the instant action.

On September 11, 1992, defendants filed a joint motion for summary judgment with respect to each of the claims listed in plaintiff's complaint. Plaintiff countered by filing a motion for partial summary judgment (pertaining to the state and federal handicap claims) three days later. On September 21, 1992, defendants moved to strike certain materials accompanying plaintiff's summary judgment motion. Defendants asserted that these materials were contrary to Rule 56 of the Federal Rules of Civil Procedure.

On November 6, 1992, the district court granted both defendants' summary judgment motion and the motion to strike. Plaintiff's timely appeal followed.

II.

On appeal, plaintiff first argues that the district court erred in permitting defendants to amend their removal petition to explain defendant Vadis's initial failure to join the petition. ⁸ This court reviews denials of remand motions under a de novo standard. Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 338 (6th Cir.1989). Plaintiff maintains that "remand to state court is required where (as here) a resident defendant has not been joined in the...