Schwartz v. Univ. of Cincinnati Coll. of Med.

Decision Date29 January 2020
Docket NumberCase No. 1:17-cv-284
Citation436 F.Supp.3d 1030
Parties Gene SCHWARTZ, Plaintiff, v. UNIVERSITY OF CINCINNATI COLLEGE OF MEDICINE, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

Brian Joseph Butler, Marc David Mezibov, Cincinnati, OH, for Plaintiff.

Drew Corner Piersall, Scott Howard DeHart, Zashin & Rich Co., L.P.A., Columbus, OH, Mark B Gerano, Patricia Anderson Pryor, Jackson Lewis LLP, Cincinnati, OH, for Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

Timothy S. Black, United States District Judge

This civil case is before the Court on the motion for summary judgment of Defendants UC Health, Andrew Filak, and David Bernstein (Doc. 32); and the motion for summary judgment of Defendants University of Cincinnati College of Medicine ("UC College of Medicine") and Kimberly Risma (Doc. 34); as well as the parties' responsive memoranda (Docs. 41, 44, 45). Also before the Court is Plaintiff Gene Schwartz's cross-motion for partial summary judgment (Doc. 35) and the parties' responsive memoranda (Docs. 37, 39, 43).

I. BACKGROUND

Plaintiff Gene Schwartz filed this action against the Defendants surrounding his termination from a post-graduate Allergy and Immunology Fellowship Program ("fellowship program") after speaking out about perceived sex discrimination against himself and his same-sex spouse. (Doc. 1). Plaintiff asserts that his termination from the program constituted retaliation in violation of Title VII, as well as a violation of his First Amendment right to free speech. (Id. at 9-10). Schwartz also alleges that he was terminated without having been afforded adequate procedural due process under the Fourteenth Amendment. (Id. at 10).

Schwartz was hired as a clinical fellow in the allergy fellowship program by UC Health in July 2015. (Doc. 32-1 at ¶ 14; Doc. 42 at ¶ 14).1 The fellowship program consists of both a clinical and academic component. (Doc. 32-1 at ¶ 10; Doc. 42 at ¶ 10). UC Health, a private healthcare system, collaborates with the UC College of Medicine to provide the academic component of the program. (24-1 at 23; Doc. 32-1 at ¶ 12; Doc. 42 at ¶ 12). UC College of Medicine faculty oversee the program and develop its curriculum. (Filak Depo. at 12-13). The University of Cincinnati Medical Center ("UC Medical Center") is one of UC Health's hospitals. (Doc. 32-1 at ¶ 2; Doc. 42 at ¶ 2). Both entities are privately owned and operated. (Doc. 32-1 at ¶ 3; Doc. 42 at ¶ 3).

During the relevant period, Defendant Andrew Filak was the Vice President of Education and the Designated Institutional Official ("DIO") for Graduate Medical Education for UC Health/UC Medical Center. (Doc. 32-1 at ¶ 5; Doc. 42 at ¶ 5; Filak Depo. at 11, 14). He also held the position of Senior Associate Dean for Academic Affairs at UC College of Medicine, with the College acting as his direct employer and UC Health reimbursing the College for part of his salary. (Filak Depo. at 7; Doc. 32-1 at ¶ 6; Doc. 42 at ¶ 6). Defendant Kimberly Risma is the Director of the allergy fellowship program, and Defendant David Bernstein is the Assistant Director of the fellowship program. (Doc. 32-1 at ¶¶ 7-8; Doc. 42 at ¶¶ 7-8). Defendants Risma and Bernstein supervise fellows for UC Health and Cincinnati Children's Hospital. (Doc. 32-1 at ¶ 9; Doc. 42 at ¶ 9). They also both have faculty appointments at UC College of Medicine.2 (Risma Depo. at 7; Bernstein Depo. at 5-6).

Upon entering the fellowship program, Plaintiff signed a Graduate Medical Education Contract ("GME Contract") with UC Health on behalf of UC Medical Center. (Doc. 24-1 at 21; Doc. 32-1 at ¶ 16; Doc. 42 at ¶ 16). The GME Contract states that Plaintiff "shall be an employee of UC Health" and sets forth Plaintiff's compensation, with a stipend and benefits provided by UC Health. (Doc. 24-1 at 21; Doc. 32-1 at ¶ 15; Doc. 42 at ¶ 15). The contract also incorporates the UC Medical Center Graduate Medical Education Standard Terms and Conditions ("terms and conditions") and provides that the Medical Center may terminate the GME Contract at any time for grounds specified in the terms and conditions. (Doc. 24-1 at 21).

The standard terms and conditions incorporated by the GME Contract state that the "The Residency Program is a collaboration between UC [Medical Center] and the University of Cincinnati College of Medicine" and further state that "[t]he academic components of the Residency Program are developed and supervised by the College, which is solely responsible for determining whether a resident has satisfactorily completed the academic requirements of the Residency Program." (Id. at 23). Moreover, the terms and conditions provide that the "Resident acknowledges that nothing in the GME Contract or these Standard Terms & Conditions shall be deemed to make Resident a public employee or an employee of the University of Cincinnati[.]" (Id. at 24).

Relevant to the instant case, the terms and conditions also address certain restrictions on "moonlighting"—engaging in work outside of the fellowship program. (Id. at 27). More specifically, the terms and conditions require fellows to gain permission from the program director prior to engaging in any moonlighting activities and note that fellows must comply with the moonlighting policies of UC Health, UC Medical Center, and the University of Cincinnati College of Medicine. (Id. ).

Finally, the terms and conditions set forth two separate processes used to address academic deficiencies and misconduct. (Id. at 31). The misconduct process (contained in Section 4.2), under which Plaintiff was terminated, permits the program director, in consultation with the DIO, to conduct an inquiry into an identified issue. (Id. at 34; Doc. 35-1 at ¶ 34; Doc. 38 at ¶ 34). After consultation with the program director, the DIO may "remove a Resident3 from duty (with or without pay) pending the outcome of the inquiry." (Doc. 24-1 at 34). The inquiry consists of an internal investigation by "a neutral physician, member of human resources or other appropriate person" who reviews any documentation and meets with witnesses, including the resident. (Id. at 35). Based on the report of the inquiry, the program director makes a recommendation to the DIO regarding a final action, which may include dismissal. (Id. ). The DIO is responsible for making the final determination. (Id. ). There is no appeal process for disciplinary action based on misconduct. (Id. ).

Schwartz claims he was improperly terminated from the program after speaking out about an incident that occurred at a dinner hosted by The Finity Group, a private financial company, in October 2015. (Doc. 1; Doc. 41 at 21-27, 30-31). The allergy fellowship program coordinator, Shakeith Lawson, forwarded an e-mail to fellows, including Plaintiff, from The Finity Group advertising an informational dinner for new physicians at a restaurant in Northern Kentucky. (Doc. 32-1 at ¶ 33; Doc. 42 at ¶ 33). Lawson's forwarded e-mail stated in full, "Fellows, see below." (Doc. 26-1 at 30). Plaintiff attended the dinner with his same-sex spouse. (Doc. 35-1 at ¶ 11; Doc. 38 at ¶ 11). Plaintiff arrived at the dinner late and entered the restaurant ahead of his spouse who was parking the car. (Doc. 32-1 at ¶¶ 40, 42; Doc. 42 at ¶¶ 40, 42). According to Plaintiff, a Finity Group representative told Plaintiff to wait outside of the private dining room where the presentation was taking place. (Doc. 35-1 at ¶ 12). Plaintiff asserts that after he and his spouse were seated outside the private dining room and in the main restaurant, a heterosexual couple arrived and were seated in the private dining room prior to the end of the presentation. (Id. at ¶ 13). This caused Plaintiff to suspect that he and his spouse were being discriminated against because they were a same-sex couple. (Id. at ¶ 14). The Finity Group paid for Plaintiff and his husband's meal, and also gave them a personal presentation about their financial services. (Doc. 32-1 at ¶ 41; Doc. 42 at ¶ 41).

Following his experience at the dinner, Schwartz e-mailed Lawson suggesting that UC avoid having future business with The Finity Group as they "practice discrimination," (Doc. 26-1 at 29-30), to which Lawson replied that her e-mail forwarding the invitation was "FYI only." (Id. at 29). Plaintiff proceeded to e-mail Dr. Filak, UC Medical Center's DIO, about the incident, stating, "If possible please consider trying to disassociate UC from the below financial advisor business group. Being associated with discrimination is definitely not what is needed for UC or Cincinnati." (Id. ). Dr. Filak responded as follows:

Dear Dr. Schwartz,

This appears to be something that was arranged by your program. The Office of GME has had nothing to do with this and I am not at al [sic] familiar with this group. As an institution we do not typically advocate for such firms. If a firm approaches us and asks us to send out announcements or advertisements we run it by the Resident Advisory Council to see if there is interest before sending it out. It does not appear that this program was in any way advertised by UC or UCMC. As stated above, it seems to have been done at the program level.
By copy of this I am asking Dr. Bunger to forward this email to your program director to make sure she is aware of your concerns as I do not have access to her email address at this time.
Thanks for sharing this with me.

(Id. at 28). Plaintiff responded to Dr. Filak by stating, "[t]hank you and no need to bother Dr. Risma" as "she has nothing to do with this." (Id. ).

On November 30, 2015, Dr. Risma and Dr. Bernstein issued a "Letter of Deficiency" to Plaintiff (part of the academic deficiency process outlined in the GME standard terms and conditions), which included as a "concern" Plaintiff's request to the DIO to disassociate all UC trainees with a particular business organization (The Finity Group). (Doc. 24-2...

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