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Diakow v. Oakwood Healthcare Inc.

United States District Court, E.D. Michigan, Southern Division

January 9, 2017

LILIAN DIAKOW, Plaintiff,
v.
OAKWOOD HEALTHCARE, INC., d/b/a OAKWOOD SOUTHSHORE MEDICAL CENTER, Defendant.

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [26] AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [28]

          Nancy G. Edmunds United States District Judge.

         This employment dispute comes before the Court on cross motions for summary judgment. Plaintiff's claims arise from Defendant's failure to renew her on-call physician contract. Plaintiff brings claims pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12117, which incorporates and references § 706 of Title VII, 42 U.S.C. § 2000e-5 (Count I), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., age discrimination (Count II). (Compl. ¶ 1.) The Court held a hearing on these motions. For the reasons stated below, Plaintiff's motion for summary judgment (dkt. 26) is denied and Defendant's motion for summary judgment (dkt. 28) is denied in part and granted in part.

         I. Background

         A. Plaintiff's Employment History

         Plaintiff, Lilian Diakow, M.D. ("Plaintiff" or "Dr. Diakow"), graduated from medical school in 1952. (Diakow Dep. 16, Pl.'s Mot. Summ. J. Ex. 1, dkt. 26-1.) She took a residency in obstetrics and gynecology (OB/GYN) at Providence Hospital between 1953 and 1956. (Diakow Dep. 16.) Until June 2014, she had a private medical practice in Wyandotte, Michigan, and through the years she had hospital privileges at both Henry Ford Wyandotte (HFW) and Seaway Hospital in Trenton, which later became Oakwood Southshore ("Defendant" or "Southshore"). (Diakow Dep. 17-19, 21.)

         In addition to private practice, hospital privileges, and a contract to perform faculty preceptor duties 3 half-days per week, Plaintiff had on-call contracts at Southshore.[1](Diakow Dep. 31:5-16, 33-35.) This additional coverage of Southshore's OB/GYN department was pursuant to a separate written contract. (Diakow Dep. 30:17-20.) These two-year contracts provided an hourly wage for nighttime on-call emergency coverage. (Diakow Dep. 72:11-22.) Plaintiff's most recent on-call contract was executed in December 2008, when she was 80 years old, and amendments to extend its terms were signed through June 2011, when she was 83, and through June 2013, at age 85. (Diakow Dep. 72-74; Physician Employment Agr. Ex. A, Def.'s Mot. Summ. J. Ex. 5, dkt. 28-5.) It is also worth noting that on July 16, 2009, at the age of 81, Plaintiff was appointed Secretary of the OB/GYN department for a 4-year term. (Diakow Dep. 91:17-25.) She was reappointed in May 2013, at age 85, for three more years. (Diakow Dep. 91:17-25.) Both letters of appointment were signed by Edith Hughes, President of Oakwood Southshore Medical Center, and Dr. Nasir. (Diakow Dep. 91.)

         Plaintiff's physician employment agreement with Oakwood Southshore Medical center, dated January 1, 2009, contains a job description at Exhibit B with a list of job duties. (Employment Agr. Ex. B, 135-36, Pl.'s Mot. Summ. J. Ex. 2, dkt. 26-2.) There were certain medical procedures which Plaintiff decided that she was not going to do. (Diakow Dep. 51.) Plaintiff testified that the only procedure she did not perform was laparoscopy, and she alleges that the other procedures which she had crossed off the list of hospital privileges were procedures that noone at her hospital performed as far as she knew, and that some of these procedures were performed at high-risk hospitals. (Diakow Dep. 54-55.) The job description also included "teaching residents and medical students." (Employment Agr. Ex. B, 135-36, Pl.'s Mot. Summ. J. Ex. 2, dkt. 26-2.)

         When Plaintiff was working in the on-call role at Southshore, there would be one physician staffing the OB department on each particular night or weekend shift and usually one resident. (Diakow Dep. 51:19-52:16.) During the on-call schedule, the only exception to having a resident scheduled on OB/GYN duty was the third Thursday of each month on the day shift, during which time the residents had their monthly didactic meeting with the state-wide campus system. (Seibles Dep. 26, Pl.'s Mot. Summ. J. Ex. 3, dkt. 26-3.)

         Defendant ended Dr. Diakow's on-call services on October 29, 2013, by failing to renew her contract; Dr. Diakow alleges that she was terminated. (Diakow Dep. 45-47.) After Plaintiff's on-call services contract ended, she maintained staff privileges. (Diakow Dep. 37:7-17.) Plaintiff also continued her employment as an on-call physician at HFW even after her employment with Defendant ended. (Diakow Dep. 22.) Plaintiff completely retired from the practice of medicine on September 1, 2015.

         B. Facts Related To Plaintiff's Position At Defendant Southshore

         On November 15, 2012, Plaintiff injured her calf muscle when getting out of her car on a windy night at HFW. When she turned around to retrieve her tote bag from the car, the wind snapped the car door back into her leg. (Diakow Dep. 95.) Despite being in pain, she carried out her duties that evening and had x-rays taken at Southshore the following morning. (Diakow Dep. 95.) On November 28, 2012, Plaintiff followed up with her orthopaedic doctor, Dr. Kevin Sprague. (Sprague records 11/28/12, Pl.'s Mot. Summ. J. 7, dkt. 26-7.) Dr. Sprague recommended physical therapy, which Plaintiff attended a few times, but the appointments conflicted with her schedule and the therapist said she could continue the exercises at home. (Diakow Dep. 102.) For a couple of months following the injury, Plaintiff occasionally used a wheelchair to cover longer distances, for example from the OB department to the clinic or to her office. (Diakow Dep. 97-98.)

         On December 10, 2012, Hughes was forwarded an email from Martha Williams, Clinical Nurse Manager of the Birthing Unit, which read:

It has become a concern of the OB staff that Dr. Diakow may not be physically able to perform her duties as it relates to being the in house OB Physician. She has been observed using a wheelchair to navigate through the unit, including into patient rooms. The concern rests with whether she can perform a crash C/Section or Vaginal Delivery without the assistance of another physician. Please note, once a month she is working without even Resident coverage.
After discussion (today) with Dr. Glines, yourself and Juliet Hafford I am advised to forward my concern back to you for further review and followup.

         (Williams Email, Dec. 10, 2012, Def.'s Mot. Summ. J. Ex. 6, 28-6.) As discussed below, Nurse Williams agreed in her testimony that after Plaintiff's accident, there was at least one occasion where she thought it took a long time for Plaintiff to walk from the sleep room to surgery. (Williams Dep. 20:21-25, Def.'s Mot. Summ. J. Ex. 7, dkt. 28-7.) Williams also testified that Plaintiff's "inability to stand through a surgery leaving the surgery to the residents was a concern, " and that Williams had "observed on more than one occasion [Plaintiff] stepping back and sitting down during surgery." (Williams Dep. 22-23.) Williams further testified that she had seen Plaintiff stopping on her way to the delivery room in an emergency situation and that Williams' perception was that "it appeared that she was stopping to rest." (Williams Dep. 35.)

         On April 11, 2013, Plaintiff attended a meeting with Hughes and Craig Glines, D.O., at which time her injury was a topic of conversation. (Diakow Dep. 99; Glines Dep. 10, Def.'s Mot. Summ. J. Ex. 3, dkt. 28-3.) Plaintiff testified that at the meeting, Hughes informed her that "she had heard that I had to be wheelchaired from patients' rooms, " which Plaintiff denied, and that Plaintiff's limping around was not a good image for the hospital. (Diakow Dep. 100.) Hughes also gave Plaintiff a list of physicians to contact to be reevaluated at Oakwood. (Diakow Dep. 100.) Plaintiff informed Hughes that she had been treated by Dr. Sprague, also at Oakwood, yet she was not asked to bring in a note from Dr. Sprague regarding whether she was fit to perform the job. (Diakow Dep. 100-01.) Hughes admits she did not give Plaintiff a written letter requesting that Plaintiff provide a physical medicine and rehabilitation (PMR) physician's report to her. (Hughes Dep. 17:18-20, Def.'s Mot. Summ. J. Ex. 8, dkt. 28-8.)

         Plaintiff attended an appointment with one of the doctors on Hughes' list, Dr. Sham Juratli, who notified Plaintiff that she had a tissue injury and should continue with therapy. (Diakow Dep. 102.) Plaintiff did not get a return-to-work slip or other documentation regarding her ability to work and testified that Hughes had not requested one, or Plaintiff certainly would have gotten one. (Diakow Dep. 103.) Hughes testified that she and Plaintiff met again in May 2013 and Plaintiff admitted she had seen a PMR physician, yet she did not produce any documentation. (Hughes Dep. 22:1-6.)

         Dr. Glines testified that as to Plaintiff's work between December 2012 and October 2013, it was his own observation "of her ambulating around" and the "increasing concerns of the nursing staff" who were "starting to ramp up their complaints, " that called into question Plaintiff's physical ability to do the job. (Glines Dep. 81:5-13.) He testified that his "observation was she had a hard time ambulating down the hallway without stopping to rest." (Glines Dep. 82:5-11). If he walked down the hallway with her, they would "be stopping about every 20 feet . . . ." (Glines Dep. 82:5-11.)

         Dr. Glines further testified that on or about April 18, 2013, when he was in Lansing at an educational forum with the residents, he responded to a call from the ER resident, Dr. Kelley, about a patient who came into the ER and was bleeding a lot. (Glines Dep. 119:17-120:18.) According to Dr. Glines, Dr. Kelley indicated that "he had contacted Dr. Diakow [the in-house on-call physician that day] and told her that he had a ruptured ectopic and that -- and her response was, well, I don't do that kind of procedure, surgery, or whatever the exact word was and that she didn't come down. So he did not know what to do since she was the only gynecologist there and there were no residents." (Glines Dep. 120:17-25.) Dr. Glines advised Dr. Kelley to call Dr. Seibles "[t]o get in there and see that patient and have her get Dr. Diakow and go down . . ., take care of this, " and that was Dr. Glines' "understanding" of what had happened. (Glines Dep. 122:17-22.)

         Dr. Glines recommended to Hughes that Plaintiff's on-call services contract not be renewed. (Glines 18:25-19:3.) Hughes testified that she was the decision-maker who decided not to renew Plaintiff's contract in 2013, and that she had consulted with Dr. Glines, though he was not the final decision-maker. (Hughes Dep. 7:1-9, Plaintiff's Mot. Summ. J. Ex. 8, dkt. 26-8.) She did not consult with anybody in personnel at Oakwood main hospital nor did she consult with the human resources department at Southshore in deciding not to renew Plaintiff's on-call contract. (Hughes Dep. 7:10-16.)

         Plaintiff points out that it is undisputed that there was no complaint, patient injury or medical malpractice claim or disciplinary charge brought against her. (Pl.'s Mot. Summ. J. 5.) Plaintiff also argues that it is undisputed that she never requested an accommodation from Defendant. (Pl.'s Mot. Summ. J. 6.) Additional facts supported by the record and relevant to the analysis herein are included below.

         Plaintiff brings her motion for summary judgment alleging that Defendant is unable to raise an issue of disputed fact on the perception of impairment (Pl.'s Mot. Summ. J. 16); Defendant has no objective evidence (legitimate basis) to require a medical examination, and such a demand may not be made in the absence of being job related and consistent with a real business necessity; Defendant does not have any evidence to support a case of direct threat to the safety and welfare of others; and Defendant has not provided evidence from which a jury could draw a reasonable conclusion that Dr. Diakow was impaired in her essential job functions or was a direct threat. (Pl.'s Mot. Summ. J. 31.) Defendant brings its motion for summary judgment arguing that Plaintiff cannot establish a claim of disability discrimination pursuant to the ADA because her alleged impairment prevented her from performing essential functions of her job, that Defendant's request to have Plaintiff examined by a physiatrist was job-related and consistent with business necessity and did not violate the Americans with Disabilities Act ("ADA"), Defendant's failure to renew Plaintiff's on-call services contract did not violate the ADA, and finally, that Plaintiff cannot establish a claim of age discrimination.

         II. Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A moving party may meet that burden “by ‘showing' - that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rule 56 expressly provides that:

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

         Fed. R. Civ. P. 56(c)(1). Rule 56 also provides that

If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it; or
(4) issue any other appropriate order.

Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).

         When the moving party has met its burden under rule 56, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately a district court must determine whether the record as a whole presents a genuine issue of material fact, id. at 587, drawing “all justifiable inferences in the light most favorable to the non-moving party.” Hager v. Pike Cnty. Bd. Of Educ., 286 F.3d 366, 370 (6th Cir. 2002).

         III. Analysis

         A. Whether Plaintiff Can Establish A Claim Of Disability Discrimination

         "To recover on a claim for discrimination under the ADA, a plaintiff must show that he or she (1) is disabled, (2) otherwise qualified to perform the essential functions of the position, with or without accommodation, and (3) suffered an adverse employment action because of his or her disability." Ferrari v. Ford Motor Co., 826 F.3d 885, 891 (6th Cir. 2016) (citing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996)). "Under the ADA, the term 'disability' means a physical or mental impairment that substantially limits one or more major life activities of an individual; a record of such an impairment; or being regarded as having such an impairment." Id. at 892 (citing 42 U.S.C. § 12102(1)).

         Plaintiff does not allege that she is disabled, but rather that she was regarded as disabled and that for this reason, her contract was not renewed. (Pl.'s Mot. Summ. J. 18; dkt. 26.) "Individuals may be regarded as disabled when (1) [an employer] mistakenly believes that [an employee] has a physical impairment that substantially limits one or more major life activities, or (2) [an employer] mistakenly believes that an actual, nonlimiting impairment substantially limits one or more [of an employee's] major life activities." Id. at 893 (quoting Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008)). "Major life activities include, but are not limited to, . . . walking, standing, . . ., and working." Id. at 893. "[A]n individual may fall into the definition of one regarded as having a disability if an employer ascribes to that individual an inability to perform the functions of a job because of a medical condition when, in fact, the individual is perfectly able to meet the job's duties." Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1106 (6th Cir. 2008)(citation omitted).

         While Plaintiff argues that she is entitled to summary judgment because Defendant "regarded" her as disabled, Defendant argues that "Plaintiff cannot show that she could perform the essential functions of a nighttime, on-call OB physician, " and therefore her claim must fail. (Def.'s Mot. Summ. J. 16, dkt. 28); see also Jennings v. Dow Corning Corp., 2013 WL 1962333, at *9 (E.D. Mich. May 10, 2013) ("To succeed on his claim, Plaintiff must also show that [s]he is 'otherwise qualified' for the . . . position.").

         1. Essential Functions of the Job

         It is undisputed that Defendant concluded that Plaintiff could not perform the essential functions of the on-call physician position and failed to renew/terminated her on-call services contract after it expired in June 2013. (Def.'s Mot. Summ. J. 2.) . Defendant "does not dispute that [Plaintiff] could perform many aspects of [her] job" and limits the issue to "her ability to timely respond to emergency situations and handle them completely on her own when she was the only licensed OB physician in the hospital during on-call coverage." (Def.'s Mot. Summ. J. 16, dkt. 28.)

         An individual is "otherwise qualified" if she "can perform the 'essential functions' of the job in question." Estate of Mauro v. Borgess Med. Ctr., 137 F.3d 398, 402 (6th Cir. 1998) (citation omitted). Normally the inquiry involves whether the individual can perform the essential functions "with or without reasonable accommodation, " however when a plaintiff is "regarded as" being disabled, "the employer is not required to entertain or consider reasonable accommodations." Jennings, 2013 WL 1962333, at *9 (citing 42 U.S.C. § 12201(h); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999)).

         The parties agree that the employment agreement job description includes "performing vaginal and cesarean deliveries for clinic patients, Dr. (sic) No patients and private patients (attending physician is not present)." (Job Description -- In House OB/GYN Physician, Def.'s Mot. Summ. J. Ex. 5, dkt 28-5; Pl.'s Resp. 3; dkt. 32.) Plaintiff in her deposition agreed that it was "important for an on-call or supervising doctor" to be able to "safely deliver babies" and "perform C-sections and other surgical procedures." (Diakow Dep. 110:10-17, Def.'s Mot. Summ. J. Ex. 1, dkt. 28-1.) She further agreed that it was important for the on-call doctor to be able to "get to any emergency situation quickly, " and "be able to stand and perform all of the surgical procedures that the residents are performing in case there's a problem." (Diakow Dep. 110:18-111:2.)

         Defendant points out that the job description requires that the "physician will be involved in the evaluation and treatment of all complex patients in triage until they are stabilized for transfer, admitted or their physician is in house." (Job Description -- In House OB/GYN Physician, Physician Employment Agr., Ex. B, 135, Def.'s Mot. Summ. J. Ex. 5.) Plaintiff admits that she stopped doing some surgeries (prior to her injury), yet argues that the job description does not require performing "major surgeries", and that the job "calls simply for supervision of the labor and ...


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