United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT  AND GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
G. Edmunds United States District Judge.
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.
Plaintiff's Employment History
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.)
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.(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.)
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.)
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.)
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
Facts Related To Plaintiff's Position At Defendant
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
December 10, 2012, Hughes was forwarded an email from Martha
Williams, Clinical Nurse Manager of the Birthing Unit, which
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.
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.)
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.)
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
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.)
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.)
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.
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.
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
Summary Judgment Standard
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.
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
(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).
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).
Whether Plaintiff Can Establish A Claim Of Disability
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.
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).
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.").
Essential Functions of the Job
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,
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)).
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.)
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 ...