Vistein v. American Registry of Radiologic Techns.
| Decision Date | 13 September 2007 |
| Docket Number | No. 05 CV 2441.,05 CV 2441. |
| Citation | 509 F.Supp.2d 666 |
| Parties | Diana L. VISTEIN, Plaintiff, v. The AMERICAN REGISTRY OF RADIOLOGIC TECHNOLOGISTS, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
Andrew P. Lycans, J. Douglas Drushal, Robert C. Gorman, Critchfield, Critchfield & Johnston, Wooster, OH, for Plaintiff.
Jeffrey R. Hartwig, Jennifer Lesny Fleming, Thompson Hine, Cleveland, OH, Kimberly Fuhrman, James K. Langdon, Shari L. Jerde, Dorsey & Whitney, Minneapolis, MN, for Defendant.
ORDER ADOPTING THE REPORT AND RECOMMENDATION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND, DENYING PLAINTIFF'S REQUESTS FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
Plaintiff Diana Vistein ("Ms.Vistein") filed the complaint in this action on 12 September 2005 in Ashland County Court of Common Pleas. (Docket No. 1). The case was removed to this Court on 21 November 2005, pursuant 28 U.S.C. § 1331. (Docket No. 11). Ms. Vistein alleges the defendant, the American Registry of Radiologic Technologists ("the ARRT"), (1) violated her due process rights under the United States Constitution and under the Ohio Constitution, and (2) tortiuously interfered with her contractual and/or business relationships, when the defendant revoked her certification with the American Registry of Radiologic Technologists. (Docket No. 1).
On 17 March 2006 this Court granted ARRT leave to file the following counterclaims: (1) Federal Trademark Infringement under Sections 32(1)(a) and 43(a) of the Lanham Act, (2) Common Law Trademark Infringement, (3) Federal Dilution under Section 43 of the Lanham Act, (4) Federal Unfair Competition under Section 43 of the Lanham Act, (5) Common Law Unfair competition, (6) violation of the Ohio Deceptive Trade Practices Act, (7) Indemnification, and (8) Breach of contract. (See Docket No. 21, Ex. 2). ARRT bases its claims on the allegation that Ms. Vistein made improper use of the defendant's mark in securing and maintaining employment as a radiologic technologist. Id.
On 24 October 2006 ARRT filed a motion for summary judgment (Docket No. 55). Ms. Vistein filed a motion for summary judgment on 22 November 2006. Both parties briefed timely responses and replies. On 10 January 2007, this matter was referred to United States Magistrate Judge Kenneth S. McHargh for Report and Recommendation ("R & R"). The Magistrate Judge's R & R advises ARRT's motion for summary judgment be granted against all of Ms. Vistein's claims but for the application of the ARRT's breach of contract and indemnification counterclaim to the plaintiff's tortious interference claim. The R & R further advises Ms. Vistein's motion for summary judgment be denied against all of the ARRT's counterclaims but for the application of the ARRT's breach of contract and indemnification counterclaim to the plaintiff's tortious interference claim. (Docket No. 67 (hereinafter "R & R")). Ms. Vistein filed timely objections to the R & R oh 26 March 2007. (Docket No. 68). ARRT responded on 12 April 2007. (Docket No. 69). This matter is now ripe for consideration.
Defendant ARRT is a national credentialing and registry of radiologic technologists. . Formed in 1922 as the American Registry of X-Ray Technicians, the ARRT adopted the name it has today in 1962. Id. Among the ARRT's functions are promotion of education and competence in the profession of radiologic technology through continuing education. . The ARRT also encourages and monitors the ethical practice of Registered Technologists through the publication and enforcement of the profession's Code of Ethics. Id. ARRT provides "its registrants with a certificate and credential card stating the technologist has satisfied the ARRT's educational, testing, and other requirements." (Kraker Aff. ¶ 7). Furthermore ARRT grants its registrants "the right to state on resumes, job applications and other documents that they have satisfied the ARRT's requirements and are registered with the ARRT." (Kraker Aff. ¶ 7).
Ms. Vistein is a radiologic technologist, who was registered and certified with the ARRT almost continually from 1968 to 2003. (Docket No. 58, Vistein Deposition (hereinafter "Vistein Dep") pp. 35-36; Kraker Aff. ¶¶ 9-14). In June 2003, Ms. Vistein allowed her registration with the ARRT to lapse after she allegedly failed to submit her renewal application. (Kraker Aff. ¶¶ 9-10, 14). At some time after her registration lapsed and before June 2004, Ms. Vistein altered the date on her ARRT card, changing "2003" to "2004." (Vistein Dep. p. 171). Ms. Vistein explained the alteration occurred because she wished to make "a clerk of [hers] an honorary tech." Id. at 170-174. Apparently Ms. Vistein was arranging a mock ceremony in which she would present her clerk with the ARRT card. Id. She limited the alteration of the card to the date, however, realizing that doing more "just wasn't right." Id. at 174.
In June 2004, Ms. Vistein submitted her ARRT card to the Ohio Department of Health ("ODH") to demonstrate she had fulfilled the necessary continuing education requirements. (Vistein Dep. pp. 40, 100-101). Noting the date on the card had been altered, ODH contacted the ARRT to verify Ms. Vistein's registration status. (Kraker Aff. ¶ 15). The ARRT informed ODH that Ms. Vistein's registration had lapsed and that the card she had submitted was not valid. Id.
On 29 June 2004 the ARRT sent Ms. Vistein a cease-and-desist letter informing her that her conduct was unlawful and could subject her to civil damages as well as criminal prosecution. (Kraker Aff. ¶ 19). ARRT also informed Ms. Vistein the ARRT Ethics Committee would be reviewing her conduct at its next meeting. Id. The ARRT requested Vistein submit an explanation of her conduct within thirty days of the cease and desist letter. (Kraker Aff. ¶ 19). Ms. Vistein offered an explanation dated 12 July 2004. (Kraker Aff. ¶ 24).
At the time, Ms. Vistein was employed by the Cleveland Clinic Foundation ("CCF") as Department Manager in the Department of Radiology. (Docket No. 58, Vistein Dep. pp. 36-38). In order to maintain her position, her employer required she be registered with the ARRT. Id. at 36-38; 47. After receiving the cease-and-desist letter from the ARRT, Ms. Vistein informed the CCF she was no longer registered with the ARRT. Id. at 47. Her employer offered her the choice of taking an unpaid leave until the matter was resolved. Id. 47-48. Ms. Vistein instead chose to resign. Id. at 53. Prior to Ms. Vistein's receipt of the cease-and-desist letter, she was in contact with a recruiter at Samaritan Regional Health System. Id. at 57-61. She interviewed with Samaritan and informed the interviewer that she was resolving some credentialing issues. Id. at 61. Ms. Vistein was offered a position with Samaritan as Director of Radiology, which she accepted. Id. at 72-73. It was Ms. Vistein's understanding that the position at Samaritan did not require her to be registered with the ARRT. Id. at 69.
At its November meeting the ARRT Ethics Committee concluded Ms. Vistein had violated the ARRT Standards of Ethics when she submitted an altered ARRT card to the ODH. (Docket No. 55, Ex. 22). On 19 November 2004 the Ethics Committee sent Ms. Vistein a letter explaining that conclusion. Id. The letter also informed Ms. Vistein the ARRT Ethics Committee was recommending revocation of her ARRT certification. Id. Ms. Vistein was allowed to request a hearing within thirty days from the date the letter was mailed. Id. Ms. Vistein claims that she never received this letter (Docket No. 58, Vistein Dep. p. 132), but admits she was aware that an investigation was underway and that a decision was imminent. Id. at 121-122, 132, 155-156. Ms. Vistein did not attempt to discover the outcome of the ARRT Ethics Committee meeting, nor did she request a hearing. Id. at 133-137.
In April 2005, in its annual report the ARRT published its finding that Ms. Vistein had been ethically sanctioned by the Ethics Committee. (Docket No. 1, Att. # 1, ¶ 47; Kraker Aff. ¶¶ 20-22). On 18 April 2005, Samaritan contacted the ARRT regarding Ms. Vistein's ethical sanctions. (Kraker Aff. ¶¶ 29-30). Because Ms. Vistein was unable to get the sanction lifted, Samaritan terminated her employment on 15 September 2005. (Vistein Dep. 162-164).
Subsequently, Ms. Vistein brought suit against the ARRT alleging (1) violation of due process pursuant to 42 U.S.C. § 1983 and the Ohio Constitution, and (2) intentional interference with her contractual and/or business relationships. (Docket No. 1)
In its motion for summary judgment, the ARRT argues (1) Ms. Vistein's claims of violation of due process and tortious interference are barred because she contractually waived and released those claims, (2) the ARRT is statutorily immune from liability pursuant to O.R.C. § 2301.251, and, (3) Ms. Vistein's claims of violation of due process and tortious interference with a business contract fail on their merits.
In her reply, Ms. Vistein contends the waiver and release upon which the ARRT relies is an unconscionable contract of adhesion. Therefore, because the contract is unenforceable, she maintains her claims are not barred. Further, Ms. Vistein argues the statutory immunity claimed by the ARRT under O.R.C. § 2301.251 is inapplicable, making her recovery permissible. Lastly, she argues that both her claims succeed on their merits.
Magistrate Judge McHargh recommends the waiver of liability upon which the ARRT relies does constitute a valid and enforceable agreement with...
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