Kulick v. Ethicon Endo–Surgery, Inc.

• Decision Date: 23 March 2011
• Docket Number: No. 1:09–CV–00167.,1:09–CV–00167.
• Citation: 42 NDLR P 267,803 F.Supp.2d 781,24 A.D. Cases 993
• Parties: Roy KULICK, M.D., Plaintiff, v. ETHICON ENDO–SURGERY, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

24 A.D. Cases 993

42 NDLR P 267

803 F.Supp.2d 781

Roy KULICK, M.D., Plaintiff,

v.ETHICON ENDO–SURGERY, INC., et al., Defendants.

No. 1:09–CV–00167.

United States District Court,S.D. Ohio,Western Division.

March 23, 2011.

Martin McHenry, Haverkamp Rebold & Riehl Co LPA, Cincinnati, OH, for Plaintiff.

Deborah S. Brenneman, Keith P. Spiller, Thompson Hine LLP, Cincinnati, OH, for Defendants.

OPINION AND ORDER

S. ARTHUR SPIEGEL, Senior District Judge.

This matter is before the Court on Defendants' Motion for Summary Judgment (doc. 37), Plaintiff's Response in Opposition (doc. 44), and Defendant's Reply (doc. 48). For the reasons indicated herein, the Court GRANTS in part and DENIES in part Defendants' Motion.

I. Background

Plaintiff Roy Kulick started working for Defendant Ethicon–Endo Surgery, Inc. (“EES”) as a clinical research director in June 2006 (doc. 14). According to Defendants, only within a few weeks of his employment he began alienating his peers and coworkers, he sent hostile emails, engaged in threatening conduct, and created an irreparable rift with the group for which he was hired (doc. 37). Defendants claim that when Plaintiff was unable to work with that group, Plaintiff was reassigned and even given a coach to help him improve his communication style and relationships ( Id.). Despite such efforts, Defendants contend, Plaintiff continued to act inappropriately to such an extent that a co-worker raised a concern that Plaintiff posed threat in the workplace ( Id.). Based on such report, Defendant EES placed Plaintiff on paid leave and required Plaintiff to undergo a fitness for duty evaluation ( Id.). Plaintiff was eventually cleared to return to work as he was found to pose no danger ( Id.). However, according to Defendants, Plaintiff was unable to change his behavior, and actually yelled at his direct supervisor, Ken Sumner, and refused to perform specific tasks Sumner assigned to him ( Id.). Defendants state that based on Plaintiff's insubordination, and his pattern of poor performance and behavior, EES terminated his employment ( Id.).

According to Plaintiff, Defendants offer a skewed version of the facts, as his role required him to challenge his fellow employees, and he was instructed by his manager, Ken Dobler, to do so (doc. 44). In Plaintiff's view the nature of such role led to conflict and strained relationships with some of his co-workers, but he nonetheless maintained productive and positive relationships with the majority of his co-workers, and a particularly positive relationship with EES's clinical organization ( Id.). He contends he received consistent praise from both Dobler and Sumner, who actually presented him with a special award for his hard work, in early 2007 ( Id.). Plaintiff's evaluations show he had good ratings and he got along quite well with Sumner ( Id.). In February, 2007, however, Plaintiff was disappointed with the raise and bonus he received, which in his view did not accord with representations EES made to him when it recruited him ( Id.). In a meeting on February 22, 2007, Plaintiff met with Sumner and a human resources representative, after which Sumner characterized Plaintiff's behavior as “uncharacteristically hostile and verbally combative,” and “unacceptably aggressive” ( Id.). Sumner did not warn Plaintiff that he viewed Plaintiff's behavior as inappropriate, but did record in February that “a clinical evaluation of [Plaintiff's] health should be considered” ( Id.). Plaintiff contends the record shows that Sumner did not request such a “clinical evaluation” as of February ( Id.).

Following the news of the fatal shootings at Virginia Tech in April 2007, Lori Chowning, (“Chowning”), Sumner's administrative assistant, expressed her view to Sumner that Plaintiff could pose a threat to Sumner and perhaps to other coworkers ( Id.). Sumner, who previously had no such concern, reported to Dobler and Holly DeSantis, of human resources, that he wanted Plaintiff's “emotional and mental capability to be evaluated” ( Id.). Sumner indicated to DeSantis that Plaintiff had sent him “hostile e-mails,” as well as demonstrated verbal and nonverbal aggressiveness in meetings ( Id.). Sumner further likened Plaintiff to the Virginia Tech killer, stating that “the killer was deemed to show behaviors of being a ‘victim’ and a ‘bully.’ I would use the same words to describe [Plaintiff's] behavior” ( Id.).

As a result of Sumner and Chowning's concerns, Dobler and DeSantis informed Plaintiff that two employees expressed concern for their safety, and that Plaintiff was being put on a leave of absence and would need to leave the premises immediately ( Id.). Plaintiff indicates he was humiliated ( Id.). Plaintiff's leave lasted from April 23 to May 21, 2007, during which time Plaintiff met with a physician to whom EES referred him for evaluation ( Id.). The physician cleared Plaintiff to return to work as of May 2, 2007 ( Id.).

While on leave, Plaintiff hired an attorney to oppose Defendants' having put him on leave and requiring him to undergo a psychological examination ( Id.). Plaintiff's counsel corresponded with both DeSantis and with EES in-house attorneys ( Id.). According to Plaintiff, DeSantis expressed to Plaintiff that she was annoyed Plaintiff had hired counsel, as she could not talk to him directly about certain issues in her human resources role ( Id.). In Plaintiff's view, Defendants' annoyance with his having retained counsel was manifested on May 21, 2007, when, upon his return from leave, Sumner presented him with a written warning based on the conduct allegedly serving as a basis for the leave ( Id.).

In early August, 2007, Plaintiff contends that EES in-house attorney Robert Fletcher informed him that his “job performance and his relationships with colleagues and management have improved” since his return to work, that he had accepted additional responsibilities, and that he was continuing to meet expectations (doc. 44). However, by August 14, 2007, DeSantis warned Plaintiff that his job was in jeopardy and that he should leave while his performance was still considered good ( Id.). On August 23, 2007, Sumner and DeSantis met with Plaintiff to inform him he was being fired for insubordination ( Id.). However, a memorandum Sumner prepared on August 22, 2007, showed that Sumner, in recommending Plaintiff's termination, referred to Plaintiff's mental health, to the Virginia Tech tragedy, and to the perception of Plaintiff as a “possible shooter” ( Id.).

Plaintiff brought his Complaint on March 10, 2009, which includes allegations that Defendants terminated Plaintiff because 1) they regarded him as having a disability, 2) because he consulted an attorney, and 3) because he opposed their unlawful conduct, specifically, their having put him on leave and forcing him to undergo psychological examination (doc. 14). Defendants filed the instant motion for summary judgment, contending they fired Plaintiff for insubordination and a pattern of unacceptable behavior, and not for any improper reason (doc. 37). Plaintiff has responded, and Defendants replied (docs. 44, 48), such that this matter is ripe for the Court's consideration.

II. Applicable Legal Standard

Although a grant of summary judgment is not a substitute for trial, it is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56; see also, e.g., Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction and Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir.1992) (per curiam). In reviewing the instant motion, “this Court must determine whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir.1993), quoting in part Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal quotation marks omitted).

The process of moving for and evaluating a motion for summary judgment and the respective burdens it imposes upon the movant and the non-movant are well settled. First, “a party seeking summary judgment ... bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact [.]” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also LaPointe, 8 F.3d at 378; Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir.1992); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). The movant may do so by merely identifying that the non-moving party lacks evidence to support an essential element of its case. See Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir.1993).

Faced with such a motion, the non-movant, after completion of sufficient discovery, must submit evidence in support of any material element of a claim or defense at issue in the motion on which it would bear the burden of proof at trial, even if the moving party has not submitted evidence to negate the existence of that material fact. See Celotex, 477 U.S. at 317, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). As the “requirement [of the Rule] is that there be no genuine issue of material fact,” an “alleged factual dispute between the parties” as to some ancillary matter “will not defeat an otherwise properly supported motion for summary judgment.” Anderson, 477 U.S. at...