Lindsay v. Children’s Hosp. Med’l Ctr. of Akron (Full Text)

[Cite as Lindsay v. Children’s Hosp. Med. Ctr. of Akron, 2009-Ohio-1216.]

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STATE OF OHIO

COUNTY OF SUMMIT

CAROL A. LINDSAY

CHILDREN’S HOSPITAL MEDICAL
CENTER OF AKRON, et al.

Appellees

Appellant

IN THE COURT OF APPEALS
NINTH JUDICIAL DISTRICT

24114

C. A. No.

APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CV 2006-06-3987
CASE No.

Dated: March 18, 2009

DECISION AND JOURNAL ENTRY

CARR, Presiding Judge.

{¶1} Appellant, Carol Lindsay, M.D., appeals the judgment of the Summit County

Court of Common Pleas, which granted summary judgment against her in favor of Appellees,

Children’s Hospital Medical Center of Akron (“Children’s”) and Justin Lavin, M.D. This Court

affirms, in part, and reverses, in part.

{¶2} Children’s created a Maternal Fetal Medicine Department (“MFMD”) in 2004,

when it purchased the private practice of two local perinatologists, Drs. Lavin and Steven Crane.

The plan was to staff the MFMD with five full-time perinatologists, including Drs. Lavin and

Crane, who would see patients at Akron General Medical Center (“AG”), Summa Health System

(“Summa”), and various outlying high risk outpatient clinics. Dr. Lindsay was the third

perinatologist hired, although she insisted upon working only part-time. Dr. Lavin, the chairman

of the department, ultimately agreed to hire Dr. Lindsay within a part-time capacity. Children’s

and Dr. Lindsay executed a five-year contract for her part-time employment which commenced

on June 20, 2005. Dr. Christos Hatjis was subsequently hired by the MFMD, and he assumed

the position of vice chairman of the department. Children’s continued to work with recruitment

firms, seeking other perinatologists for the department. By a letter dated May 1, 2006,

Children’s terminated Dr. Lindsay’s employment, effective May 5, 2006.

{¶3} On June 27, 2006, Dr. Lindsay filed a complaint against Children’s and Dr. Lavin,

alleging one count of breach of contract, one count each of racial and gender discrimination

pursuant to R.C. Chapter 4112, one count of retaliation pursuant to R.C. Chapter 4112, and one

count of wrongful termination in violation of public policy. The defendants filed an answer. On

May 23, 2007, Dr. Lindsay moved for leave to file an amended complaint, which the trial court

granted. In her amended complaint, Dr. Lindsay alleged a second count of retaliation. The

defendants filed an answer.

{¶4} On October 29, 2007, Children’s and Dr. Lavin filed a joint motion for summary

judgment. Dr. Lindsay filed a memorandum in opposition, and the defendants replied. On

January 2, 2008, the defendants filed a notice of supplemental authority in support of their

motion for summary judgment in regard to the count alleging wrongful termination in violation

of public policy. On February 8, 2008, the trial court granted the defendants’ motion for

summary judgment on all counts in favor of Children’s and Dr. Lavin and against Dr. Lindsay.

Dr. Lindsay timely appealed, raising three assignments of error. This Court consolidates the

assignments of error for ease of discussion.

II.

ASSIGNMENT OF ERROR I

“THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR
THE APPELLEES ON THE APPELLANT’S RETALIATION CLAIM AS THE

APPELLANT ESTABLISHED A PRIMA FACIE CASE OF RETALIATION
AND ESTABLISHED GENUINE
ISSUES OF MATERIAL FACT
CONCERNING THE APPELLEES’ REASONS FOR TERMINATING THE
APPELLANT AND SENDING DISPARAGING LETTERS TO PROSPECTIVE
EMPLOYERS.”

ASSIGNMENT OF ERROR II

“THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR
THE APPELLEES ON THE APPELLANT’S SEX AND RACE
DISCRIMINATION CLAIMS, AS THE APPELLANT ESTABLISHED A
PRIMA FACIE CASE OF SEX AND RACE DISCRIMINATION AND
ESTABLISHED GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER
THE APPELLEES’ ARTICULATED REASONS FOR TERMINATING THE
APPELLANT WERE A PRETEXT FOR DISCRIMINATION.”

ASSIGNMENT OF ERROR III

“THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR
THE APPELLEES ON THE APPELLANT’S BREACH OF CONTRACT
CLAIM, AS THE APPELLANT ESTABLISHED, AS A MATTER OF LAW,
THAT THE APPELLEES DID NOT GIVE REQUIRED NOTICE OF THE
INTENT TO TERMINATE THE EMPLOYMENT AGREEMENT, AND THE
APPELLANT ESTABLISHED GENUINE ISSUES OF MATERIAL FACT AS
TO WHETHER THE ARTICULATED REASONS FOR TERMINATING THE
EMPLOYMENT AGREEMENT CONSTITUTED ‘JUST CAUSE.’”

{¶5} Dr. Lindsay argues that the trial court erred by granting summary judgment in

favor of Children’s and Dr. Lavin on her claims for retaliation, gender and racial discrimination,

and breach of contract. This Court agrees, in part, and disagrees, in part.

{¶6} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105. This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13

Ohio App.3d 7, 12.

{¶7} Pursuant to Civ.R. 56(C), summary judgment is proper if:

“(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from

the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.” Temple v.
Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

{¶8} To prevail on a motion for summary judgment, the party moving for summary

judgment must be able to point to evidentiary materials that show that there is no genuine issue

as to any material fact, and that the moving party is entitled to judgment as a matter of law.

Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Once a moving party satisfies its burden of

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to

Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere

allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins (1996), 75

Ohio St.3d 447, 449.

Retaliation

{¶9} Dr. Lindsay alleged in her amended complaint that the defendants retaliated

against her in violation of R.C. Chapter 4112 for engaging in protected activity: (1) by

threatening to terminate her, by attempting to force her to resign and by terminating her

employment; and (2) by disparaging her to potential new employers and interfering with her

efforts to obtain new employment.

{¶10} R.C. 4112.02(I) prohibits retaliation and states:

“It shall be an unlawful discriminatory practice *** [f]or any person to
discriminate in any manner against any other person because that person has
opposed any unlawful discriminatory practice defined in this section or because
that person has made a charge, testified, assisted, or participated in any manner in
any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the
Revised Code.”

{¶11} The state courts may look to federal case law regarding cases involving alleged

violations of R.C. Chapter 4112. Varner v. The Goodyear Tire & Rubber Co., 9th Dist. No.

21901, 2004-Ohio-4946, at ¶10, citing Plumbers & Steamfitters Joint Apprenticeship Commt. v.

Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 196.

{¶12} To establish a prima facie case of retaliation, Dr. Lindsay must demonstrate:

“(1) that she engaged in protected activity; (2) that the employer knew of her
exercise of protected rights; (3) that she was the subject of adverse employment
action; and (4) that there is a causal link between the protected activity and the
adverse employment action.” Price v. Matco Tools, 9th Dist. No. 23583, 2007-
Ohio-5116, at ¶38, citing Balmer v. HCA, Inc. (C.A.6, 2005), 423 F.3d 606, 614.

The United States Supreme Court recently held that “the anti-retaliation provision does not

confine the actions and harms it forbids to those that are related to employment or occur at the

workplace.” Burlington Northern and Santa Fe Ry. Co. v. White (2006), 548 U.S. 53, 57.

{¶13} This Court has stated:

“With respect to the final element, a plaintiff must produce evidence which
permits the inference that apart from the protected activity, the adverse action
would not have been taken. Nguyen v. Cleveland (C.A.6, 2000), 229 F.3d 559,
563. This determination is made with reference to the surrounding circumstances,
including ‘evidence that defendant treated the plaintiff differently from similarly
situated employees or that the adverse action was taken shortly after the plaintiff’s
exercise of protected rights[.]’ Id. Standing alone, however, temporal proximity
does not establish the requisite connection, and this is particularly true when the
evidence demonstrates intervening performance concerns. Id. at 566-67, citing
Cooper v. North Olmsted (C.A.6, 1986), 795 F.2d 1265, 1272[.]” Price at ¶39.

{¶14} If Dr. Lindsay establishes a prima facie case of retaliation, the burden then shifts

to the defendants “to articulate a legitimate reason for its action.” Bennett v. Roadway Express,

Inc. (Aug. 1, 2001), 9th Dist. No. 20317, quoting Chandler v. Empire Chem., Inc., Midwest

Rubber Custom Mixing Div. (1994), 99 Ohio App.3d 396, 402. “If that burden is met, the burden

then shifts back to the plaintiff ‘to show that the articulated reason was merely a pretext.’”

Bennett, supra, quoting Chandler, 99 Ohio App.3d at 402. This Court has further recognized:

“[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the

reason was false, and that discrimination was the real reason.” Bennett, supra, quoting St.

Mary’s Honor Ctr. v. Hicks (1993), 509 U.S. 502, 515.

{¶15} Dr. Lindsay first claims that the defendants attempted to and ultimately

terminated her because she engaged in protected activities, specifically, because she raised

allegations of discrimination in an April 18, 2006 letter to Dr. Lavin, and copied to Candace

Zalick, MFMD Practice Manager, and Ruth Swan, Director of Human Resources at Children’s;

and because she filed a charge of discrimination and retaliation on April 27, 2006, with the Ohio

Civil Rights Commission.

{¶16} In an effort to meet their initial burden under Dresher, the defendants presented

the following evidence in support of their argument that they were unaware of Dr. Lindsay’s

exercise of protected rights. Dr. Lavin testified that the first serious issue regarding Dr.

Lindsay’s performance occurred in September 2005 when he learned that she had in excess of 50

incomplete ultrasound reports at Summa. He testified that he began keeping notes on her

performance issues after that time. Dr. Lindsay acknowledged during her deposition that Dr.

Lavin discussed performance issues with her in September or October 2005 and again in

November 2005 at a meeting with Practice Manager Candace Zalick. Dr. Lavin testified that he

shared his notes regarding Dr. Lindsay with the hospital’s attorney in February or March 2006.

{¶17} Dr. Lindsay admitted during her deposition that she attended a meeting on April

5, 2006, with Dr. Lavin and Lisa Aurilio, Children’s Director of Maternal-Fetal-Neonatal

Services, at which time Dr. Lavin vaguely brought up numerous performance issues. Dr.

Lindsay admitted that she received a copy of a letter to her from Dr. Lavin, dated April 5, 2006,

by the end of that meeting. The letter enunciates eleven specific “areas that require continued

performance improvement.” The last paragraph of the letter reads: “This letter will inform you

that your performance in these areas must show marked improvement. This letter should be

considered notification of your one year prior written notice for termination of your contact [sic]

unless marked improvement is noted in your performance. The period of notice may be reduced

to 30 days if there is not marked improvement in your performance.”

{¶18} Dr. Lavin testified that he experienced much frustration regarding scheduling for

Dr. Lindsay because of her part-time status and the fact that Dr. Lindsay notified him of many

days she was unavailable to work. He testified that days off were granted on a first come-first

served basis. Because two of the four perinatologists had requested and received approval for

time off on April 21, 2006, Dr. Lavin denied Dr. Lindsay’s subsequent request for that day off.

In an email dated April 11, 2006, Dr. Lindsay asserted that she would not be available to work

on April 21, 2006. Dr. Lavin testified that, immediately thereafter, he met with administration

and told them, “this is it; after all our discussions about past safety and whatnot, if she doesn’t

come in, then we have to terminate her.” He testified that administration prepared a letter to that

effect on April 17, 2006. Grace Wakulchik, Vice President of Patient Services, testified that the

final decision to terminate was made in collaboration with hospital attorneys and human

resources when they learned that Dr. Lindsay would not show up for work on April 21, 2006.

By such evidence, the defendants met their initial Dresher burden.

{¶19} Dr. Lindsay wrote a letter to Dr. Lavin, dated April 18, 2006, and not received by

him until April 19, 2006, alleging discrimination. Because the decision to terminate Dr. Lindsay

had already been made by April 17, 2006, when a termination letter was first drafted, Dr.

Lindsay failed to meet her reciprocal burden under Tompkins to present evidence that the

defendants knew of her exercise of protected rights.

{¶20} Further, because the decision to terminate her had already been made by April 17,

2006, there is no causal link between her April 27, 2006 filing of her complaint with the Ohio

Civil Rights Commission and her ultimate termination on May 5, 2006. “Employers need not

suspend previously contemplated employment actions upon learning of protected activity by the

employee.” Warren v. Ohio Dept. of Pub. Safety (C.A.6, 2001), 24 Fed.Appx. 259, 266. In

support of their initial burden, the defendants presented evidence that they contemplated Dr.

Lindsay’s imminent termination based on her long-term performance issues as early as April 11,

2006, when Dr. Lindsay asserted she would not report for work as scheduled on April 21, 2006.

Having given what they believed to be the requisite 30-day notice for termination for cause on

April 5, 2006, the defendants were not prohibited from terminating Dr. Lindsay effective May 5,

2006, merely because she engaged in protected activity, i.e., the April 27, 2006 complaint, in the

interim. Under the circumstances, Dr. Lindsay failed to present evidence of any causal

connection between her protected activity and her termination.

{¶21} Assuming, arguendo, that she made her prima facie case, the defendants have

again met their Dresher burden by articulating numerous legitimate business reasons for her

termination. Dr. Lavin, Ruth Swan, Candace Zalick and Lisa Aurilio all testified that they

became aware of numerous, on-going performance issues regarding Dr. Lindsay. Dr. Lavin’s

notes regarding Dr. Lindsay chronicled the following performance issues based on his good faith

belief and reports from others: September 2005: more than 50 incomplete ultrasound reports;

failure to sign AG clinic contract; inaccurate billing slips due to their untimely completion and

problems remembering services provided; not available within a reasonable time to respond to

patients in labor; suspension from AG for failure to complete records; failure to respond to

critical transfer patient; October 2005: not available to respond to emergencies in labor in a

timely manner; November 2005: failure to come to hospital when called by residents regarding a

patient undergoing a therapeutic termination; made an obscene gesture toward an ultrasound

technician after the technician informed her that a patient was upset after waiting 50 minutes;

demeaned the head nurse for testing in front of medical students; brought her daughter to work

which brought chaos to the office; failure to sign dictation; failure to sign additional ultrasound

charts/reports; and maintaining an office “which was one of the worse [sic] messes I have ever

seen and certainly not appropriate for a professional office.” Dr. Lavin’s notes indicate that he

met with Dr. Lindsay on November 30, 2005, and discussed the “very serious situation.” His

notes include two pages of concerns and Dr. Lindsay’s responses.

{¶22} Dr. Lavin’s notes chronicled further issues: February 2006: confrontation over

patient care between Dr. Lindsay, Dr. Crane and Nurse Marty LaConte concluding in

determination that Dr. Lindsay provided inappropriate clinical care to a patient experiencing

decelerations; Dr. Lindsay’s abandonment of a patient during labor and nearing delivery (patient

“pushing”); late for diabetic clinic and disrespectful remarks to the perinatal clinical specialist

and patients; confrontational and nonreceptive attitude to Dr. Lavin’s suggestions; disrespectful

to perinatal nurses; failure to timely complete ultrasound report and notify a referring doctor

regarding a serious complication with a patient; March 2006: failure to sign non-stress tests over

entire weekend when Dr. Lindsay was on call; second suspension of privileges for failure to sign

charts at AG; April 2006: meeting with Dr. Lindsay to discuss 11 on-going performance issues

requiring improvement and notifying her of termination in one year; failure to participate in

mandatory PLATO training (for records); April 11, 2006 email from Dr. Lindsay that she would

not work on April 21, 2006, as scheduled; failure by Dr. Lindsay to work as scheduled on April

21, 2006, necessitating that Dr. Lavin cover rounds at 2 hospitals, manage patients at 2 hospitals,

cancel some patients due to lack of a second physician, miss 2 meetings in violation of contract

so he could manage patients, and sign Dr. Lindsay’s late dictations.

{¶23} A review of the record indicates that the defendants presented evidence of

articulated legitimate reasons for Dr. Lindsay’s termination, by way of long-standing and

unresolved performance issues. Dr. Lindsay, however, has failed to meet her reciprocal burden

to present any evidence to show that such reasons were false and, therefore, merely pretext for

termination in retaliation for her participation in protected activity. Accordingly, the trial court

did not err by granting summary judgment in favor of the defendants on Count IV of Dr.

Lindsay’s amended complaint.

{¶24} Dr. Lindsay next claims that the defendants retaliated against her by disparaging

her to potential new employers and interfering with her efforts to obtain new employment after

she filed the instant lawsuit. Summary judgment in favor of the defendants was appropriate

because Dr. Lindsay failed to meet her reciprocal burden by demonstrating the existence of a

causal connection between the protected activity and the adverse employment action.

{¶25} On September 1, 2006, Dr. Lavin sent letters to two prospective employers, where

Dr. Lindsay was seeking to obtain employment. Dr. Lavin sent a letter to Weatherby Locums,

Inc. “in lieu of the professional reference form sent” and to Eastern Maine Medical Center “in

lieu of the verification of hospital affiliation form sent[.]” The two letters were otherwise

identical. The letters identified Dr. Lindsay’s responsibilities in the MFMD at Children’s, noted

her medical knowledge within the specialty as adequate, and asserted that she is “an ethical

clinician and generally has good medical patient management and communication skills.” The

letters further identified good performance areas and areas in which Dr. Lindsay’s performance

was lacking. Dr. Lavin recommended that the prospective employers speak with Dr. Lindsay

about those issues to get her perspective. Finally, Dr. Lavin opined that “Dr. Lindsay could

continue her career as a perinatologist in a setting where peers are available for mentoring.”

{¶26} The defendants argued in their motion for summary judgment that Dr. Lindsay

“can submit no evidence showing that any prospective employer did not hire her because of the

alleged negative comments.” Dr. Lindsay argued in her opposition to the motion for summary

judgment that Eastern Maine Medical Center “suddenly asked [her] to withdraw her application

for privileges.”

She further argued

that

the Weatherby recruiter suddenly stopped

communicating with her after almost daily communication during the summer of 2006.

Although Dr. Lindsay cites to pages 438-39 of her deposition in support of her statements, those

pages are not contained in the record.

{¶27} “Where *** there is no admissible evidence that the statements of the former

employer caused or contributed to the rejection by the prospective employer, the plaintiff has

failed to present a prima facie case.” Sarno v. Douglas Elliman-Gibbons & Ives, Inc. (C.A.2,

1999), 183 F.3d 155, 160. As in Sarno, Dr. Lindsay failed to present an affidavit or other sworn

testimony from either prospective employer attributing their decisions to discontinue contact

with her to Dr. Lavin’s letters to them. See id. Without any such sworn statements from the

prospective employers, Dr. Lindsay has failed to meet her reciprocal burden and “failed to

adduce any evidence sufficient to create a genuine issue to be tried as to [her] contention that

[Dr. Lavin’s letters] to [prospective employers] caused [the prospective employers] not to hire

[her] and hence was an adverse employment action.” See id. Because Dr. Lindsay failed to

demonstrate her prima facie case of retaliation as alleged in Count V of her amended complaint,

the trial court did not err by granting summary judgment in favor of the defendants on that claim.

Dr. Lindsay’s first assignment of error is overruled.

Gender and Racial Discrimination

{¶28} Dr. Lindsay alleged that the defendants discriminated against her on the basis of

her gender and race in violation of R.C. 4112.02 with respect to the terms and conditions of her

employment and by considering her gender and race as motivating factors in their decision to

terminate her employment.

{¶29} R.C. 4112.02 provides in relevant part:

“It shall be an unlawful discriminatory practice:

“(A) For any employer, because of the race, *** [or] sex *** of any person, to
discharge without just cause, to refuse to hire, or otherwise to discriminate against
that person with respect to hire, tenure, terms, conditions, or privileges of
employment, or any matter directly or indirectly related to employment.”

The Ohio Supreme Court has stated that “federal case law interpreting Title VII of the Civil

Rights Act of 1964 *** is generally applicable to cases involving alleged violations of R.C.

Chapter 4112.” Plumbers & Steamfitters Joint Apprenticeship Commt., 66 Ohio St.2d at 196.

Therefore, this Court may look to federal case law in addition to state law to determine

resolution of this matter.

{¶30} This Court has stated:

“To establish a prima facie case of discrimination, a plaintiff must show: (1)
membership in a protected class; (2) qualification for the position; (3) an adverse
employment action; and (4) replacement by a non-protected person. McDonnell
Douglas Corp. v. Green (1973), 411 U.S. 792, 802. ‘[A] plaintiff can also make
out a prima facie case by showing, in addition to the first three elements, that “a
comparable non-protected person was treated better.”’ Mitchell v. Toledo Hosp.
(C.A.6, 1992), 964 F.2d 577, 582. See, also, Talley v. Bravo Pitino Rest., Ltd.
(C.A.6, 1995), 61 F.3d 1241, 1246-47. When using the comparable non-protected
person was treated better element, a plaintiff ‘must produce evidence which at a
minimum establishes (1) that he was a member of a protected class and (2) that
for the same or similar conduct he was treated differently than similarly-situated
non-minority employees.’ Mitchell, 964 F.2d at 582-83. The parties to be
compared must be similarly-situated in all respects, that is they ‘must have dealt
with the same supervisor, have been subject to the same standards and have
engaged in the same conduct without such differentiating or mitigating

circumstances that would distinguish their conduct or the employer’s treatment of
them for it.’ Id. at 583. In Talley, the Sixth Circuit held: ‘showing that similarly
situated non-protected employees were treated more favorably than the plaintiff is
not a requirement but rather an alternative to satisfying the fourth element of the
prima facie case[.]’ Talley, 61 F.3d at 1247. ‘Thus, discrimination can be shown
either by replacement by a non-protected person or by favorable treatment to
comparable persons similarly-situated.’ Howell v. Summit Cty., 9th Dist. No.
20958, 2002-Ohio-5257, at ¶15. Finally, a plaintiff may show that he was the
victim of a discriminatory practice by either direct evidence or through indirect
evidence. Byrnes v. LCI Communications Holdings Co. (1996), 77 Ohio St.3d
125, 128.” Atkinson v. Akron Bd. of Edn., 9th Dist. No. 22805, 2006-Ohio-1032,
at ¶28.

{¶31} Dr. Lindsay has not alleged discriminatory conduct based on direct evidence;

rather, she argues on appeal that she was subjected to disparate treatment and, ultimately,

termination, “while her similarly situated White male colleagues were not so much as counseled

for identical or similar conduct.”

{¶32} In this case, there is no dispute that Dr. Lindsay, as an African-American female,

is a member of a protected class. In addition, there is no dispute that she suffered an adverse

employment action, specifically, that her employment was terminated.

{¶33} When evaluating the qualification prong, the Sixth Circuit has clarified the

relevant considerations, holding:

“At the prima facie stage, a court should focus on a plaintiff’s objective
qualifications to determine whether he or she is qualified for the relevant job. See
Aka v. Washington Hosp. Ctr. (D.C.Cir., 1998), 156 F.3d 1284, 1298 (en banc)
(noting that ‘courts traditionally treat explanations that rely heavily on subjective
considerations with caution,’ and that ‘an employer’s asserted strong reliance on
subjective feelings about the candidates may mask discrimination’); MacDonald
v. E. Wyo. Mental Health Ctr. (C.A.10, 1991), 941 F.2d 1115, 1121 (holding that
a plaintiff can show that she is qualified by presenting ‘credible evidence that she
continued to possess the objective qualifications she held when she was hired’).
The prima facie burden of showing that a plaintiff is qualified can therefore be
met by presenting credible evidence that his or her qualifications are at least
equivalent to the minimum objective criteria required for employment in the
relevant field. Although the specific qualifications will vary depending on the job
in question, the inquiry should focus on criteria such as the plaintiff’s education,
experience in the relevant industry, and demonstrated possession of the required

general skills.” (Emphasis omitted.) Wexler v. White’s Fine Furniture, Inc.
(C.A.6, 2003), 317 F.3d 564, 575-76.

{¶34} Exhibit A to Dr. Lindsay’s employment agreement set forth a 16-point job

description, including, among other things, that she maintain an unrestricted license to practice

medicine; maintain board certification in maternal-fetal medicine; maintain clinical privileges in

good standing at Children’s, AG, Summa, and all other hospitals where Children’s

perinatologists have privileges; cooperate in the timely completion of documents; and provide all

reasonable medical services and support when called upon in an emergency situation. Dr. Lavin

testified that he compiled notes regarding complaints he received regarding Dr. Lindsay’s

deficiencies, including her chronic failure to complete medical records which resulted in the

suspension of her clinical privileges at AG and her failure to timely respond to emergencies

when called. In addition, Dr. Lavin and Dr. Crane testified that they disagreed with Dr.

Lindsay’s clinical evaluation and treatment of a patient whose fetus evidenced deceleration in

heart rate during monitoring.

{¶35} Dr. Lindsay, however, presented her curriculum vitae, evidencing her education,

experience and general qualifications as a perinatologist. Furthermore, Dr. Eric Jenison,

Chairman of OB/GYN at AG, testified that suspensions up to 57 days constitute merely

temporary suspensions and that suspensions terminate upon the completion of outstanding

records. Dr. Jenison further testified that it is not unusual for physicians to receive temporary

suspensions for delinquent medical records. He testified that, only if the suspension goes beyond

57 days does it become permanent, effecting a voluntary resignation by the physician and

requiring reapplication for privileges. There is no evidence that Dr. Lindsay’s privileges were

ever permanently suspended. Regarding disagreements with Dr. Lindsay’s clinical evaluations

and treatments, Dr. Crane conceded during his deposition that different physicians have different

ways of doing things and that, as long as the conduct falls within the standard of care, a

difference in practices is not problematic. Dr. Crane testified, however, that he believed that Dr.

Lindsay’s leaving a diabetic teenager in active labor, whose fetus was evidencing decelerations,

fell below the standard of care.

{¶36} Although there is some evidence that Dr. Lindsay was not subjectively qualified

to work in Children’s MFMD, there is evidence of her objective qualifications. Her education

and experience indicate that she was qualified. Dr. Lavin, in letters to prospective employers

seeking references for Dr. Lindsay, stated that Dr. Lindsay’s “medical knowledge within the

specialty is adequate.” Accordingly, a genuine issue of material fact exists regarding whether

she was qualified for the position.

{¶37} After Dr. Lindsay’s termination, Children’s hired Dr. Angela Silber as a

perinatologist member of the MFMD, first in a part-time capacity, and later full-time after Dr.

Silber completed a fellowship. The addition of Dr. Silber to the department brought the number

of perinatologists to four, and it is undisputed that the original plan was to staff the MFMD with

at least five perinatologists. Under these circumstances, the evidence does not support a finding

that Dr. Silber was hired as a replacement for Dr. Lindsay.

{¶38} The remaining element of Dr. Lindsay’s prima facie case is whether a

comparable, non-protected person was treated better than she was. She must establish that she

was treated differently than similarly-situated non-minority employees for the same or similar

conduct. See Mitchell, 964 F.2d at 582-83. The threshold issue is whether there existed in the

MFMD similarly-situated non-minority employees. “In practical terms, two employees are not

similarly-situated in all relevant respects if there is a meaningful distinction between them which

explains their employer’s differential treatment of them.” Poppy v. Willoughby Hills City

Council, 11th Dist. No. 2004-L-015, 2005-Ohio-2071, at ¶41, citing Ercegovich v. Goodyear

Tire & Rubber Co. (C.A.6, 1998), 154 F.3d, 344. The Sixth Circuit explained:

“We explained in Mitchell [v. Toledo Hosp. (C.A.6, 1992), 964 F.2d 577] that
when the plaintiff lacks direct evidence of discrimination, ‘the plaintiff must show
that the “comparables” are similarly-situated in all respects,’ absent other
circumstantial or statistical evidence supporting an inference of discrimination.
Id. at 583. Although this statement appears to invite a comparison between the
employment status of the plaintiff and other employees in every single aspect of
their employment, Mitchell has not been so narrowly construed. In Pierce v.
Commonwealth Life Ins. Co. (C.A.6, 1994), 40 F.3d 796, this court explained that
the plaintiff was simply ‘required to prove that all of the relevant aspects of his
employment situation were “nearly identical” to those of [the non-minority’s]
employment situation.’ Id. at 802 (emphasis added); see also Holifield v. Reno
(C.A.11, 1997), 115 F.3d 1555, 1562 (citing Mitchell in support of the proposition
that ‘[t]o make a comparison of the plaintiff’s treatment to that of non-minority
employees, the plaintiff must show that he and the employees are similarly
situated in all relevant respects’ (emphasis added)); Neuren v. Adduci, Mastriani,
Meeks & Schill (C.A.D.C. 1995), 43 F.3d 1507, 1514 (quoting Pierce); Byrd v.
Ronayne (C.A.1, 1995), 61 F.3d 1026, 1032 (‘A disparate treatment claimant
bears the burden of proving that she was subjected to different treatment than
persons similarly situated in all relevant aspects.’ (quotations omitted)). Mitchell
itself only relied on those factors relevant to the factual context in which the
Mitchell case arose – an allegedly discriminatory disciplinary action resulting in
the termination of the plaintiff’s employment. We held that to be deemed
‘similarly-situated’ in the disciplinary context, ‘the individuals with whom the
plaintiff seeks to compare his/her treatment must have dealt with the same
supervisor, have been subject to the same standards and have engaged in the same
conduct without such differentiating or mitigating circumstances that would
distinguish their conduct or the employer’s treatment of them for it.’ Mitchell,
964 F.2d at 583. These factors generally are all relevant considerations in cases
alleging differential disciplinary action. Cf. Pierce, 40 F.3d at 802 (explaining
that the distinction in supervisory status between plaintiff and non-minority
employee also accused of sexual harassment was relevant because company’s
liability under Title VII for sexual harassment could depend on employee’s
status). Courts should not assume, however, that the specific factors discussed in
Mitchell are relevant factors in cases arising under different circumstances, but
should make an independent determination as to the relevancy of a particular
aspect of the plaintiff’s employment status and that of the non-protected
employee. The plaintiff need not demonstrate an exact correlation with the
employee receiving more favorable treatment in order for the two to be
considered ‘similarly-situated;’ rather, as this court has held in Pierce, the
plaintiff and the employee with whom the plaintiff seeks to compare himself or
herself must be similar in ‘all of the relevant aspects.’ Pierce, 40 F.3d at 802
(emphasis added).

“A prima facie standard that requires the plaintiff to demonstrate that he or she
was similarly-situated in every aspect to an employee outside the protected class
receiving more favorable treatment removes from the protective reach of the anti-
discrimination laws employees occupying ‘unique’ positions, save in those rare
cases where the plaintiff produces direct evidence of discrimination. As the
plaintiff-appellant points out in his reply brief, if the non-protected employee to
whom the plaintiff compares himself or herself must be identically situated to the
plaintiff in every single aspect of their employment, a plaintiff whose job
responsibilities are unique to his or her position will never successfully establish a
prima facie case (absent direct evidence of discrimination). *** Thus, under the
district court’s narrow reading of Mitchell, an employer would be free to
discriminate against those employees occupying ‘unique’ positions. This circuit
has never endorsed such a narrow construction of Mitchell. Rather, as explained
above and as held previously by this court in Pierce, we simply require that the
plaintiff demonstrate that he or she is similarly-situated to the non-protected
employee in all relevant respects. A contrary approach would undermine the
remedial purpose of the anti-discrimination statutes.” (Emphasis in original.)
Ercegovich, 154 F.3d at 352-53.

{¶39} There is no evidence to indicate that the other three perinatologists in the MFMD,

Drs. Lavin, Crane and Hatjis, were anything other than Caucasian males, i.e., non-protected

employees.

{¶40} The defendants argued in their motion for summary judgment that Dr. Lindsay

was not similarly-situated to any of her male colleagues for six reasons: (1) Dr. Lindsay worked

part-time, while the other three physicians worked full-time; (2) Drs. Lavin and Hatjis were

officers, responsible for administrative/managerial duties for the MFMD, which duties Dr.

Lindsay did not share; (3) Dr. Lindsay had less experience as a perinatologist (since 1999) than

Dr. Crane (since 1995) and Dr. Hatjis (since 1983); (4) discrimination claims premised on status

as a single parent is not actionable; (5) Dr. Lindsay was subject to a different (lower)

productivity bonus scheme due to her part-time status; and (6) Dr. Lindsay’s male colleagues did

not demonstrate the same performance deficiencies (e.g., delayed completion of medical records,

revocation of privileges, failure to show up for work as scheduled, abandonment of patients, and

poor treatment of staff personnel). This Court agrees that single-parent status does not constitute

a protected class for purposes of anti-discrimination law and consequently does not further Dr.

Lindsay’s demonstration of a prima facie case.

{¶41} There is no evidence that Dr. Lavin and Dr. Lindsay were similarly-situated. Dr.

Lavin, as Chief of the MFMD, supervised Dr. Lindsay and coordinated with Grace Wakulchik,

Vice President of Patient Services; Ruth Swan, Director of Human Resources at Children’s; Lisa

Aurilio, Director of Maternal-Fetal-Neonatal Services for Children’s; and Candace Zalick,

Practice Manager, regarding Dr. Lindsay’s performance and professional conduct issues. Dr.

Lavin counseled Dr. Lindsay regarding those issues, co-signed the letter giving her one year’s

notice of her termination, and signed the letter purporting to terminate her employment. Dr.

Lavin and Dr. Lindsay did not have similar titles; did not report to the same supervisor; did not

receive the same salary, even taking into consideration pro-rating based on Dr. Lindsay’s part-

time status; and did not possess the same level of responsibility. See Kroh v. Continental Gen.

Tire, Inc. (2001), 92 Ohio St.3d 30, 31-2. Given these differences, the defendants presented

evidence in support of their initial Dresher burden, while Dr. Lindsay failed to meet her

reciprocal burden to demonstrate that she was similarly-situated in all relevant respects to Dr.

Lavin. Ercegovich, 154 F.3d at 353.

{¶42} Dr. Hatjis was the Vice Chair of the MFMD, and he testified to numerous specific

tasks assigned to him. For example, he testified that, although some tasks listed in the Vice

Chair’s job description overlap with tasks shared to some extent by all the perinatologists, he

personally was charged with (1) serving as the Director of Maternal Fetal Medicine at Summa,

responsible for the implementation of the contract between Children’s and Summa and

interaction with the Chair of the MFMD and Summa’s Chair of OB/GYN; (2) serving as Acting

Chairman of the MFMD during the Chairman’s absence or upon direction; (3) participating in

MFMD staff meetings; (4) participating in Summa Obstetrics Department faculty and staff

meetings; (5) participating in administrative and leadership development programs within

Children’s; (6) working with the MFMD Chair and Administrative Director to ensure, improve

and enhance clinical and administrative practice operations and efficiencies; (7) participating in

(non-physician) staff performance evaluations in the MFMD service areas; and (8) coordinating

with Dr. Lavin and other MFMD administrators to transition the MFMD leadership role at

Summa from Dr. Lavin to Dr. Hatjis.

{¶43} The defendants cite some authority for the proposition that an employee is not

similarly-situated with another employee who has an administrative or managerial role. See,

e.g., Lange v. Honda of America Mfg., Inc., 11th Dist. No. 14-03-49, 2004-Ohio-2060, at ¶13;

Clevidence v. Wayne Sav. Community Bank (N.D.Ohio 2001), 143 F.Supp.2d 901, 909. Dr.

Lindsay cited Kroh, supra, in support of her argument that Dr. Hatjis’ administrative and

managerial duties did not significantly distinguish his position so that the two could not still be

considered similarly-situated. In Kroh, the court determined that the plaintiff, the sole cash

manager at General Tire, had presented evidence to show that she was similarly-situated to the

male managers to whom she compared herself. Id. at 32. In that case, however, the evidence

established that General Tire considered all the manager positions, specifically, the real estate

manager, risk manager and cash manager, to be interchangeable. Id. at 31. In this case, Dr.

Lindsay’s position was not interchangeable with Dr. Hatjis’ position due to his numerous

additional duties and responsibilities.

{¶44} The instant case is more analogous to the situation in Clevidence. Dr. Lindsay

testified that she was unable to complete her medical records, which ultimately led to two

suspensions, because she was not scheduled at the main hospitals as often as the other

physicians. Dr. Lavin testified, however, that he spent approximately one-half of his time at AG

and one-half of his time at Children’s because he had administrative functions there. According

to copies of physicians’ schedules authenticated by Candace Zalick, who maintained them in the

regular course of her duties as Practice Manager, Dr. Hatjis spent the majority of his time at

Summa, where he had administrative duties. While both Dr. Lindsay and Dr. Hatjis performed

maternal-fetal medicine clinical duties, Dr. Hatjis was also the Vice Chair of MFM at Summa.

He was obligated to fulfill his administrative duties at Summa, necessitating his frequently

scheduled presence there, just as Dr. Lavin was required, as Chair, to generally divide his time

between Children’s and AG. Dr. Lindsay points to no evidence in the record to show that Dr.

Hatjis was never scheduled at the outlying clinics in Hudson and at the Considine Building, or

that he was scheduled frequently at Summa for any reason other than to accommodate his

administrative duties. Accordingly, while the defendants presented evidence to meet their initial

burden, Dr. Lindsay failed to meet her reciprocal burden to demonstrate that she was similarly-

situated in all relevant respects to Dr. Hatjis. Clevidence, 143 F.Supp.2d at 909; see, also,

Ercegovich, 154 F.3d at 353.

{¶45} Finally, Dr. Lindsay has not demonstrated that she was similarly-situated to Dr.

Crane. Dr. Lindsay could meet her burden if she could demonstrate that, although she evidenced

serious performance issues and unprofessional conduct, Dr. Crane exhibited the same

performance issues and unprofessional conduct, yet was neither disciplined nor disciplined so

severely. Williams v. Akron, 9th Dist. No. 21306, 2003-Ohio-7197, at ¶13, citing Clayton v.

Meijer, Inc. (C.A.6, 2002), 281 F.3d 605, citing McDonnell Douglas, 411 U.S. at 804. The

defendants asserted in their motion for summary judgment that there was no evidence that Dr.

Crane “engaged in the same questionable conduct that plagued Dr. Lindsay, and which resulted

in her job loss.” In her memorandum in opposition to the defendants’ motion for summary

judgment, Dr. Lindsay argues that Dr. Crane engaged in similar conduct but was not disciplined

or terminated for such conduct. She references only two examples of such conduct.

{¶46} First, she asserted that Dr. Crane was “known to exhibit short-tempered behavior

toward staff[.]” Dr. Jenison testified during deposition that nurses have reported to him that Dr.

Crane is somewhat temperamental. He testified that he handled the situation by trying to help

those nurses understand Dr. Crane’s considerations in the workplace. He further testified that he

spoke with Dr. Crane regarding the nurses’ concerns. He did not testify that he told Dr. Lavin

about any such issues involving Dr. Crane. Dr. Lavin averred in an affidavit that “Dr. Lindsay

apparently believes that Stephen Crane, M.D. (“Dr. Crane”) treated the staff unprofessionally. I

have no knowledge that Dr. Crane engaged in unprofessional treatment of the staff.” Dr. Lavin,

as Chief of the MFMD, was the physician charged with addressing performance and

professionalism issues with the other perinatologists. There is no evidence that any problematic

conduct by Dr. Crane was ever brought to Dr. Lavin’s attention, so that he could address it.

{¶47} Second, Dr. Lindsay asserted that “Dr. Crane failed to respond in a timely manner

when paged to take over for Dr. Lindsay with the delivery of the high-risk patient while on-call

(Lindsay Dep. At pp. 424-427).” A thorough review of the record indicates that pages 424-427

of Dr. Lindsay’s deposition were not filed in the trial court and are, therefore, not part of the

record before this Court. The defendants filed excerpts of Dr. Lindsay’s deposition, which did

not include those pages. Dr. Lindsay filed only the first day of her deposition testimony, which

included pages 1-321. The defendants filed additional excerpts from Dr. Lindsay’s deposition in

support of their reply memorandum, again without pages 424-427. Accordingly, Dr. Lindsay’s

assertion of Dr. Crane’s conduct is unsubstantiated by the record, as argued by the defendants.

Because Dr. Lindsay pointed to no evidence in the record that Dr. Crane engaged in similar

conduct, he was not similarly-situated to Dr. Lindsay in any relevant aspect. See, generally,

Williams, supra.

{¶48} Because Dr. Lindsay has failed to meet her reciprocal burden by presenting any

evidence that the other three perinatologists in the MFMD were similarly situated to her, she has

failed to satisfy the fourth prong of the McDonnell Douglas analysis and, therefore failed to set

forth a prima facie case of gender or racial discrimination. Accordingly, the trial court did not

err by granting summary judgment in favor of the defendants on Dr. Lindsay’s discrimination

claims. Dr. Lindsay’s second assignment of error is overruled.

Breach of Contract

{¶49} Dr. Lindsay alleged in her amended complaint that the defendants breached the

terms of her employment agreement by failing to honor the part-time work provisions therein

and by terminating her employment after less than one year in violation of the notice and

termination provisions contained therein. In their motion for summary judgment, the defendants

argued that Dr. Lindsay was entitled to only thirty days notice of termination, rather than one

year, because she was terminated for cause, rather than without cause. As the allegation

regarding the failure to honor her part-time status necessarily implicates issues regarding her

termination pursuant to the contract, this Court will address the breach of contract issue within

that context.

{¶50} To prevail on her claim alleging breach of contract, Dr. Lindsay must prove “the

existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss

to the plaintiff.” Kunkle v. Akron Mgt. Corp., 9th Dist. No. 22511, 2005-Ohio-5185, at ¶18,

quoting Doner v. Snapp (1994), 98 Ohio App.3d 597, 600.

{¶51} Dr. Lindsay was hired for a five-year term from June 20, 2005, through June 19,

2010, subject to earlier termination under certain limited circumstances. Section 5(b) of the

employment agreement provided for automatic termination upon Dr. Lindsay’s death or

conviction of a felony or misdemeanor related to the provision of or payment for health care

services. Section 5(b) further provided for termination without cause upon either Dr. Lindsay’s

or Children’s one-year prior written notice to the other. Finally, Section 5(b) provided for Dr.

Lindsay’s termination for cause under various circumstances upon written notice and subject to a

thirty-day cure period.

{¶52} By letter dated April 5, 2006, and signed by Dr. Lavin and Lisa Aurilio, Dr.

Lindsay was notified of continued complaints regarding her clinical performance and

professional conduct. The letter delineated eleven specific areas requiring her “continued

performance improvement[.]” The last paragraph of the letter read as follows:

“This letter will inform you that your performance in these areas must show
marked improvement. This letter should be considered notification of your one
year prior written notice for termination of your contact [sic] unless marked
improvement is noted in your performance. The period of notice may be reduced
to 30 days if there is not marked improvement in your performance.”

Following Dr. Lindsay’s failure to report to work as scheduled on April 21, 2006, Dr. Lavin

caused to be sent to Dr. Lindsay by certified mail a letter dated May 1, 2006, terminating her

employment, effective at the end of business on Friday, May 5, 2006. The letter indicated that

Dr. Lindsay was being terminated for cause based on her performance issues. Dr. Lavin’s letter

served to terminate Dr. Lindsay’s employment thirty days after the April 5, 2006 letter

purporting to give her notice of the need to improve her performance.

{¶53} On its face, the May 1, 2006 termination letter does not comply with the

termination provision regarding termination without cause because Dr. Lindsay was terminated

long before the passing of one year. The defendants argue, however, that the April 5, 2006 letter

gave appropriate written notice of termination for cause because it included a thirty-day cure

period. By its plain language, however, the April 5, 2006 letter does not give a definitive thirty-

day notice of termination. Rather, it merely indicates that, if Dr. Lindsay failed to show marked

improvement in her performance, a thirty-day notice of impending termination might be

forthcoming. The defendants’ evidence attached in support of their motion for summary

judgment further dispels this argument.

{¶54} Lisa Aurilio, who signed the April 5, 2006 letter, testified during her deposition

that the letter gave Dr. Lindsay one year’s notice of termination, and merely that the notice

period could be reduced to 30 days in the absence of marked improvement in her performance.

Counsel inquired, “But at that point was she being given notice of termination of her

employment in 30 days?” Ms. Aurilio testified, “No.” Accordingly, a representative of the

hospital itself admitted that the April 5, 2006 letter did not properly convey a thirty-day notice of

termination. Under these circumstances, the defendants failed to meet their initial Dresher

burden to show that no genuine issue of material fact existed in regard to the breach of contract

claim alleging that the defendants terminated her in violation of the termination provisions in her

employment agreement.

{¶55} The defendants presented evidence to show that Dr. Lindsay was given one year’s

notice of her termination without cause. The defendants failed, however, to present evidence to

show that she was then only terminated after the year elapsed. In addition, the defendants failed

to present evidence that Dr. Lindsay was given thirty days’ notice of her impending termination

unless she cured the deficiencies substantiating a termination for cause in the interim.

Accordingly, the defendants failed to present evidence to show that no genuine issues of material

fact existed and that they were entitled to judgment as a matter of law on Dr. Lindsay’s breach of

contract claim. Therefore, the trial court erred by granting summary judgment in favor of the

defendants on the breach of contract claim. Dr. Lindsay’s third assignment of error is sustained.

III.

{¶56} Dr. Lindsay’s first and second assignments of error are overruled. Her third

assignment of error is sustained. The judgment of the Summit County Court of Common Pleas

is affirmed, in part, reversed, in part, and remanded for further proceedings consistent with this

decision.

Judgment affirmed, in part,
reversed, in part,
and cause remanded.

The Court finds that there were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

WHITMORE, J.
CONCURS

SLABY, J.
CONCURS IN PART, AND DISSENTS, IN PART, SAYING:

DONNA J. CARR
FOR THE COURT

{¶57} I agree with the majority’s resolution of Lindsay’s first and second assignments of

error, but write separately because I would also affirm the trial court’s judgment with respect to

her claim for breach of contract. The majority concludes that there is a dispute of fact regarding

whether Lindsay received a thirty-day notice of termination. I disagree. It is clear that per the

contract, a one-year notice of termination was given in April 2006. Lindsay was also informed

that the notice period could be reduced to thirty days if her performance did not demonstrate

marked improvement. On this point, Lisa Aurilio’s testimony does not create an issue of fact

that is genuine. There is no evidence that Lindsay’s performance improved between April 2,

2006, and May 6, 2006, and, in fact, there are indications that her performance deteriorated.

{¶58} I would affirm the judgment of the trial court in its entirety, and I respectfully

dissent.

APPEARANCES:

TIMOTHY J. DOWNING, INAJO DAVIS CHAPPELL, and BRIAN T. ROBINSON, Attorneys
at Law, for Appellant.

DANIEL L. BELL, AMANDA M. LEFFLER, and CHRISTOPHER F. CARINO, Attorneys at
Law, for Appellees.