UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LILIAN DIAKOW,

Plaintiff,

v.

OAKWOOD HEALTHCARE, INC., d/b/a

OAKWOOD SOUTHSHORE MEDICAL

CENTER,

Defendant.

 /

Case No. 15-11411

Honorable Nancy G. Edmunds

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]

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

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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

 1Dr. Diakow started the "doctor-in-the-box" or "doctor on duty in the OB department"

program at Wyandotte General (now HFW), and she later started the same program at

Southshore. (Diakow Dep. 21:18-19, 25:7-11.) Under the doctor-in-the-box ("on call")

program, the doctors covered night shifts with members from their department who were

also referred to as the on-call physician. (Diakow Dep. 30:8-23.) 

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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

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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.

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(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.) 

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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

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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

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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;

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(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)). 

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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

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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

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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 delivery area, nurses, residents, training of the same

and vaginal and caesarian section deliveries." (Pl.'s Br. in Opposition 3.) 

Defendant shows that Plaintiff testified, "I cut out doing surgery when Dr. Danz

became ill. I only did sections. I did not do any majors after that." (Diakow Dep. 122:18-20.)

Plaintiff also testified that there were certain procedures, such as laproscopies, that Plaintiff

did not perform, because she "saw the complications that happened with laproscopies, so

[she] chose not to expose [herself]" and if a laproscopy needed to be done while she was

on call, she had two other doctors available as a backup. (Williams Dep. 41-43.) Defendant

argues that this testimony, as well as evidence from Nurse Martha Williams that the nurses

had to wait "an uncomfortable amount of time" for Plaintiff to respond in a "crash" situation,

"is sufficient in itself to establish that Plaintiff was not otherwise qualified to perform all

aspects of the OB on-call position" and therefore, her claim must fail.2 (Def.'s Mot. Summ. 

 2 It is worth noting Williams' testimony in more detail because it is not exactly as

Defendant had characterized it in the brief by stating that "Williams, herself, had

experienced multiple situations where a fetus' heart tone had dropped, creating a "crash"

situation, promoting the nurse to yell for the doctor, and having to wait 'an uncomfortable

amount of time' for Plaintiff to arrive". (Def.'s Mot. Summ. J. 7, citing Williams' Dep. pp. 21-

22 and 34.) Williams' testimony was as follows:

Q: What was the emergent situation? What was going on? 

A: These situations, and I don't want to speak to a particular situation, but these situations

in general are situations where you have a labor patient, the baby's heart tone has

dropped, it's a crash situation. The nurse opens the door and says I need the Doc in the

Box, I need the Doc in the Box now. The person at the nurse's station and myself pick up

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the phone, Dr. Diakow, we need you now and then you wait for her to arrive or whoever the

Doc in the Box would be. 

Q. And did she arrive?

A. Yes. 

Q. Was there any harm to that particular patient?

A. I am not aware of the length of time it took her to get there resulting in harm to a patient.

Q. Were you personally present waiting for her to arrive?

A. I have been personally present waiting for her to arrive.

Q. And then she arrived, and as far as you know the appropriate decision and the

appropriate thing was done with respect to the patient?

A. Yes.

Q. Anything like that other than that (sic) that you recall that was alarming to you? 

A. The inability to stand throughout a surgery leaving the surgery to the residents was a

concern.

Q. Well, tell me about what surgery you observed after her accident presumably on a day

shift where – 

A. More often on a day shift but it was not always.

Q. – where you observed that she was unable to stand during a surgery?

A. What’s the question exactly?

Q. Let me ask it a different way. 

A. Okay.

Q. Is it your testimony that you observed on at least one occasion, maybe more, than (sic)

you personally observed that Dr. Diakow became physically distressed, tired, or was unable

to stand during a surgery when she was needed during a surgery?

A. I’ve observed on more than one occasion her stepping back and sitting down during a

surgery. 

Q. What’s wrong with that?

A. It’s hard to imagine that you can supervise a surgery if you’re sitting away from the

surgical arena.

Q. It’s hard for you to imagine because you’re not a surgeon; right?

A. I’m not a surgeon. But – 

. . . 

A. It was a concern.

Q. It was a concern to you?

A. A concern, yes.

Q. Any harm to the patient?

A. I’m not aware of any harm to any patient.

(Williams Dep. 21:10-23:15.) 

On page 34 of the deposition, again cited by Defendant, Williams testified:

Q. Well, why don’t you explain again what your concern was with respect to the wait time

between Dr. Diakow coming from the sleep room to the delivery room? How would you say

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J. 17, dkt. 28; Williams Dep. 21-22.)

Distilled, there is an argument by Defendant that Plaintiff could not perform a "crash

C-section" on her own– a "solo crash C-section." Plaintiff refers to this as "an improbably

remote hypothetical and impossible standard" pointing out the following: 

• The employment agreement D-130 provides that "Oakwood will provide those

clinical . . . support services ("Support Services") that Oakwood deems necessary

to enable physician to provide services." (Def.'s Mot. Summ. J. Ex. 5 D at 130.); 

• Shania Seibles, D.O., and Stephanie Crain, D.O., each testified that they were

never called upon to perform a solo crash C-section and Dr. Seibles could not

remember hearing of a doctor performing a crash C-section unassisted by a

doctor or resident. (Seibles Dep. 22-23, 29-30, Pl.'s Mot. Summ. J. Ex. 3, dkt. 26-

3; Crain Dep. 26, Pl.'s Mot. Summ. J. Ex. 11, dkt. 26-11.); 

it in your words?

. . . 

Q. And I’m only asking you of your own knowledge what you personally observed?

A. Just that it would be an uncomfortable length of time that it would take her to get to the

patient from the phone call to the patient.

Q. [By Ms. Hiser] Did you ever observe her stopping along the way?

A. At the nurse’s station, yes, she would stop.

Q. And this was during a time when there was an emergency called into a delivery room?

[Mr. Vining objects]

A. Yes.

Q. Based on your understanding and your perception was there any reason for Dr. Diakow

to stop at the nurse’s station along the way?

[Mr. Vining objects]

A. There wouldn’t be a reason, but it appeared that she was stopping to rest. That was just

my perception.

(Williams Dep 34:4-35:8.) 

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• Nurse Williams testified that for a C-section there would be three nurses present,

the surgeon and one or two resident surgeons. (Williams Dep. 23-24, 30.) 

Neither party is entitled to summary judgment on this issue. The parties show that

there is a genuine question of fact as to whether Plaintiff was able to perform the essential

functions of an on-call physician. 

2. Whether Oakwood's Request To Have Plaintiff Examined By A

Physiatrist was Job-Related and Consistent with Business Necessity

Plaintiff claims that Defendant violated the ADA by making "unjustified requests for

evaluation." (Compl. ¶ 32.) The ADA prohibits employers from requiring a medical

examination or making inquiry about the nature or severity of a disability, unless the

employer can show that the examination or inquiry is "job-related and consistent with

business necessity." 42 U.S.C. § 12112(d)(4)(A). To show that an examination is

job-related and consistent with business necessity, the employer has the burden of showing

that "(1) the employee requests an accommodation; (2) the employee's ability to perform

the essential functions of the job is impaired; or (3) the employee poses a direct threat to

himself or others." Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014)

(citation omitted); Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 581-82 (6th Cir. 2014).

Further, the employer must reasonably believe based on objective evidence that a medical

examination is necessary to prevent harm to the business. Kroll, 763 F.3d at 623. 

There is no dispute that Defendant requested that Plaintiff be seen by a specialist. On

April 11, 2013, Edith Hughes and Dr. Glines met with Plaintiff and Hughes asked Plaintiff

to be evaluated by a Physical Medicine and Rehabilitation (PMR) specialist, giving Plaintiff

a list of Oakwood PMR physicians. (Hughes Dep. 17:4-17; Diakow Dep. 99:13-100:101:22;

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Daily Notes, Thursday, April 11, 2013, Def.'s Mot. Summ. J. Ex. 9, dkt. 28-9.) 

Plaintiff admits that she did not request accommodation. Defendant instead argues

that it had sufficient evidence from which to believe "that Plaintiff was impaired in her ability

to perform the on-call duties and that she posed a direct threat to patients." (Def.'s Mot.

Summ. J. 20.) "An employer may request a medical examination when 'there [is] significant

evidence that could cause a reasonable person to inquire as to whether [the] employee is

still capable of performing [her] job." Kroll, 763 F.3d at 624 (quoting Sullivan v. River Valley

Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999)). "An employee's behavior cannot be merely

annoying or inefficient to justify an examination; rather, there must be genuine reason to

doubt whether that employee can 'perform job-related functions.'" Id. (quoting Sullivan, 197

F.3d at 811). Further, "the decision to require a medical examination was justified only if

it was reasonably based on objective evidence known to" the individual who made the

decision to obtain the examination. Id. at 623. Evidence shows that Hughes, with Dr. Glines

present, requested that Plaintiff be examined by a physiatrist. (Hughes Dep. 16:15-18,

Def.'s Mot. Summ. J. Ex. 8, dkt. 28-8.) Hughes testified that the "greatest concern" with

Plaintiff "has always been her stamina and her ability to move quickly," and that is why she

asked for the evaluation. (Hughes Dep. 39:2-4.) 

Defendant relies on Barnum v. Ohio State University Medical Center, 642 Fed. Appx.

525 (6th Cir. 2016), wherein the Sixth Circuit found that there were circumstances that

constituted "significant evidence that would cause a reasonable person to inquire whether

[the] employee is still capable of performing [her] job." Id. at 532. These included

information that "there were numerous concerns expressed about [the plaintiff's] inability

to concentrate and at least one instance where she could not perform a routine task," and

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the department chair had also been "informed that one of [the plaintiff's] concerned

coworkers reported that [the plaintiff] had made a comment suggesting suicidal thoughts."

Id. at 533. In Barnum, there was a detailed account of the instance in which the plaintiff

could not perform the routine task of raising an operating table; as well as providing the

identification of the individual who had overheard the suicidally suggestive comment. Id.

at 527-28. 

As examples, Defendant cites Hughes' observations and her reliance on the

observations of Dr. Glines and Nurse Williams. (Def.'s Mot. Summ. J. 19.) Yet Plaintiff

raises genuine issues of fact as to the objective merit, and even the admissibility, of some

of this information. For example, Hughes was the recipient of Williams' December 10, 2012

email which expressed the concerns of "OB staff" that Plaintiff may not be physically able

to perform her duties, and noted that Plaintiff had been observed using a wheelchair to

navigate through the unit. (Williams Email, Dec. 10, 2012, Def.'s Mot. Summ. J. Ex. 6, dkt.

28-6; Hughes Dep. 9:25-10:6.) Yet when Nurse Williams was deposed, she was unable to

identify which nursing staff had expressed concerns about Dr. Diakow: 

Q. You requested the meeting [with Hughes]? 

A. Yes.

Q. Was the purpose of the request to discuss Dr. Diakow?

A. Yes. 

Q. What did you tell Ms. Hughes in the meeting?

A. That there was a concern reported to me by my staff that they were

concerned that physically she wouldn't be able to handle the responsibilities of

being the OB on-call physician. 

Q. Which of your staff members told you that (sic) that they were concerned?

A. You've asked me that before and I can't recall exact names. I don't have a

list of who came to me. It was several nurses.

(Williams Dep. 26:6-19.)

Similarly, Dr. Glines' testimony of first-hand accounts was limited: 

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Q. . . . but what I'm asking you right now, let me be more specific, do you have

any evidence that she couldn't do a Cesarean (sic) section on her own?

A. I have evidence from – I observed a couple cases and – I can't give you

specifics, but over the past few years and also from what I heard from, again,

nurses, anesthesiologists, residents, and other attendings.

Q. So what did you personally observe, Dr. Glines, over the past couple of

years?

A. [Begins describing coming into work in the evening, when Dr. Diakow was

in the middle of a C-section twin delivery with two residents] . . . and they were

having a hard time getting the second baby out . . . . Dr. Diakow was in the

second assist position and the two residents were struggling and I walked in

and looked and I kept saying T the uterus, T the uterus, you have to open it

further, and I felt that that should have been said earlier, and so finally they did

that. Of course, you know, that's a big repair job then, but it's something that

has to be done for the safety of the baby, and Dr. Diakow made the comment,

well, I'm glad you're here, I need a coffee break, and then she broke scrub and

left and I took over the case. 

Q. Okay. Was this prior to her leg injury or was this after her leg injury?

A. I don't know. I don't recall the exact time of the case. It was within the last

few years. 

Q. All right. Any other case that you – that comes to mind that you personally

observed in the past couple years that left you to believe that she was unable

to work on a crashed – crash delivery?

A. That I personally observed, no. 

(Glines Dep. 31-32, Pl.'s Mot. Summ. J. Ex. 4, dkt. 26-4.) 

Hughes had observed Plaintiff using the wheelchair in the hallways, or stopping and

leaning against the wall and holding onto an available railing. (Hughes Dep. 10:9-22.) In

January 2013, when Hughes saw Plaintiff at a meeting and Plaintiff was sitting near, but

not in, the wheelchair in which she had come to the meeting, Hughes asked her if she could

walk and Plaintiff responded yes. (Hughes Dep. 11-12.) Hughes admits that the complaints

about Plaintiff's ability to move around that came from "other physicians" were made to Dr.

Glines, and not to her, and she relied on what Dr. Glines had to say about them. (Hughes

Dep. 24:10-25.) Similarly, with respect to the nursing staff concerns, Hughes relied on what

Williams set forth in the December 2012 email. (Hughes Dep. 25:1-16.) 

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Plaintiff argues in part that there is an absence of an objective indication of a failure

of performance. (Pl.'s Mot. 21.) Plaintiff also sets forth evidence including Dr. Crain's

testimony that she had performed two C-sections with Dr. Diakow without incident. 

Q. Did (sic) during these two incidents that you recall, did you have any

concern that Dr. Diakow didn't know what she was doing or wasn't doing things

correctly?

A. No. 

(Crain Dep. 29:6-9.) 

The parties have shown that material questions of fact exist as to whether Defendant

could have reasonably concluded that Plaintiff was unable to perform the essential

functions of her job. Defendant has shown some evidence to support a reasonable belief

that a medical examination was job-related and consistent with business necessity. Yet the

information relied upon by Defendant is also such that a jury may conclude that Defendant

could not reasonably have concluded that Plaintiff was unable to perform the essential

functions of her job. 

With respect to whether Defendant had reason to determine that Plaintiff was a direct

threat to patient safety, "[a]n employee poses a 'direct threat' when she creates 'a

significant risk to the health or safety of others that cannot be eliminated by reasonable

accommodation.'" Kroll, 763 F.3d at 625 (quoting 42 U.S.C. § 12111(3)). Defendants again

appear to argue that Plaintiff could not have quickly attended to a crash C-section, nor

would she have the stamina to perform, should one occur. As set forth above, there are

questions of fact as to whether Plaintiff posed a safety risk and whether Hughes was

justified in requesting that she submit to a medical examination. There are genuine issues

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of disputed fact and the Court denies summary judgment to both parties on issues related

to Hughes' verbal request for a medical examination. 

3. Whether Defendant's Failure To Renew The On-Call Services Contract

Violated The ADA

Plaintiff alleges that as a "direct and proximate cause of being a person regarded as

having an impairment she was subjected to actions prohibited by the ADAA including . . .

the ultimate discharge from her employment." (Compl. ¶ 32.) Plaintiff's on-call services

contract expired in June 2013 and Defendant did not renew it. Despite that expiration,

Plaintiff continued to maintain staff privileges, her private practice at Oakwood and her

faculty preceptor duties. (Diakow Dep. 37:7-17.) 

As set forth above, Plaintiff has provided evidence from which a jury could find that

Defendant regarded her as disabled, for example the December 11, 2012 email from

Martha Williams, Clinical Manager, Birthing Unit, to Valerie Koczara, with carbon copy to

Craig Glines and Juliet Hafford, then forwarded as an "FYI" to Edith Hughes: 

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 discussions (today) with Dr. Glines, yourself and Juliet Hafford I am

advised to forward my concern back to you for further review and followup. 

(William Email Dec. 10, 2012, Pl.'s Mot. Summ. J. Ex. 13.) Further, Hughes testified that

Plaintiff's contract was not renewed because "her stamina and her ability to move quickly

during an emergency." (Hughes Dep. 8-9.) 

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Defendant, however, bases its motion for summary judgment on the argument that

Plaintiff's claim must fail because she was not "otherwise qualified" for the position of an

OB on-call physician. (Def.'s Mot. Summ. J. 21.) As set forth above, there are material

issues of fact as to whether Plaintiff remained able to perform the duties of the on-call

physician position. For this reason, the Court denies the parties' cross motions for summary

judgment on this issue. 

B. Whether Plaintiff Can Establish A Claim Of Age Discrimination

Plaintiff brings a claim of age discrimination, alleging that she was treated differently

from similarly situated younger employees. (Compl. Count II.) "The ADEA [Age

Discrimination in Employment Act] provides, in relevant part, that ‘[i]t shall be unlawful for

an employer ... to fail or refuse to hire or to discharge any individual or otherwise

discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's age.'" Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167, 176 (2009) (quoting 29 U.S.C. § 623(a)(1) (emphasis added)). Defendant

argues that Plaintiff cannot make this showing and therefore, summary judgment on this

issue is appropriate. The Court agrees. 

For ADEA claims, a plaintiff may establish a prima facie case of age discrimination by

producing direct or circumstantial evidence. See Lefevers v. GAF Fiberglass Corp., 667

F.3d 721, 725 (6th Cir. 2012). In response to Defendant's motion, Plaintiff argues that the

following circumstances are "direct evidence" that unlawful discrimination based on age

was at least a motivating factor in Defendant's actions: comments that Plaintiff's limping

was a bad image for the hospital, comments that management had lost confidence in her

abilities; giving Plaintiff a list of doctors to see; holding repeated meetings as to Plaintiff's

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abilities even though she continued performing her duties; and terminating Plaintiff from the

on-call position based upon the alleged lack of stamina and ability to move quickly. (Pl.'s

Resp. 22, dkt. 32.)

Case law does not extend the label of direct evidence to comments made by every

manager or decision maker in the corporate setting. See Hopson v. DaimlerChrysler Corp.,

306 F.3d 427, 433 (6th Cir. 2002). "Any discriminatory statements must come from

decisionmakers to constitute evidence of discrimination. Statements by nondecisionmakers,

or statements by decisionmakers unrelated to the decisional process itself cannot suffice

to satisfy the plaintiff's burden of demonstrating animus." Geiger v. Tower Auto., 579 F.3d

614, 620-21 (6th Cir. 2009) (citations omitted). Edith Hughes, the division president at the

time Dr. Diakow's contract was not renewed, testified that she was the decision-maker who

decided not to renew Dr. Diakow's contract in 2013, and although she consulted with Dr.

Glines, "he was not the final decision-maker." (Hughes Dep. 5:14, 7:1-9.) Hughes testified

that she "did not renew the contract because of her [Plaintiff's] stamina and her physical

ability to move quickly in an emergency situation." (Hughes Dep. 8:22-9:4.) Plaintiff testified

that at an April 11, 2013 meeting with Hughes and Dr. Glines, Hughes told her that she had

heard that Plaintiff had to use a wheelchair to move from patients' rooms, which Plaintiff

denied. (Diakow Dep. 100:4-13.) Plaintiff further testified that she was told "that [her]

limping around was not a good image for the hospital. And [she] answered that the hospital

is full of injuries and wheelchairs and stretchers and crutches . . . ." (Diakow Dep.

100:4-13.) There is no evidence that the comment was related to age, and Plaintiff admits

that this was the meeting at which time her "injury was brought up." (Diakow Dep. 99:25.)

Plaintiff also testified that at this meeting she was given a list of doctors to see. (Diakow

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Dep. 101:17-19.) Again, there is no evidence that this was connected to age, rather than

injury.

Plaintiff's reliance on Weberg v. Franks, 229 F.3d 514, 523-26 (6th Cir. 2000), for

the premise that "association of an adverse employment action with stigmatizing beliefs

creates a genuine issue of material fact," is misplaced. In Weberg, a case of reverse racial

discrimination, Robinson, the warden, "openly admitted that he would terminate an

employee simply because of the ‘perceptions of inmates,' and that he had in fact done just

that. He further indicated that he felt ‘strongly' that plaintiff should be terminated ‘[s]imply

because she was white and she was in a black housing unit.'" Id. at 524. "[I]f believed,

Robinson's statements lead to the conclusion that anti-white animus motivated the

employment decision he made regarding Plaintiff." Id. Here, despite Hughes' ready

admission that Plaintiff lacked "stamina" and "quick movement," there is no evidence that

Hughes operated under stigmatizing beliefs related to age. To the contrary, Hughes had

already renewed Plaintiff's contract when Plaintiff was in her eighties. Plaintiff admits that

Defendant did "not directly" use "any words stating ‘old' or ‘age'." (Pl.'s Resp. 22; dkt. 32.)

Plaintiff puts forth no evidence that Hughes' concerns that Plaintiff lacked "stamina" and

"quick movement" was related to anything other than her injury or perceived disability, as

set forth above. Plaintiff provides no direct evidence of age-related discriminatory intent

sufficient to withstand Defendant's motion for summary judgment on this issue. 

Plaintiff also argues that she can show age discrimination by disparate treatment

where she was ultimately replaced by younger doctors for the on-call position. The Court

agrees with Defendant's position that despite Plaintiff's characterization of this evidence as

"direct," it is indirect or circumstantial evidence, as further evidenced by Plaintiff's own

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statement that this evidence of disparate treatment "raises an inference that age was an

illegal factor." (Pl.'s Resp. 23.) In order to sustain an ADEA claim with circumstantial

evidence under the McDonnell Douglas burden-shifting framework, Plaintiff must first

establish a prima facie case by showing that she: (1) belonged to a protected class (e.g.

was over 40 years of age); (2) suffered adverse employment action; (3) was qualified for

the position held when the adverse action was taken; and (4) was replaced by a younger

worker. See DiCarlo v. Potter, 358 F.3d 408, 417 (6th Cir. 2004) (overruled on other

grounds by Gross, 557 U.S. at 180) (citing McDonald v. Union Camp Corp., 898 F.2d 1155,

1159–60 (6th Cir.1990)); see also Moore v. AMPAC, 645 Fed. Appx. 495, 498 n.1 (6th Cir.

May 20, 2016) ("the ADEA protects employees over the age of 40"); Isotalo v. Kelly Servs.

Inc., 2013 WL 5913839, at *9 (E.D. Mich. Nov. 4, 2013) (Edmunds, J.) (noting that

"[a]lthough the Supreme Court, in Gross v. FBL Financial Servs., Inc., [557 U.S. 167

(2009),] indicated that they would not determine whether the McDonnell Douglas analysis

applies to ADEA claims, the Sixth Circuit generally applies it in analyzing circumstantial

evidence."); and Geiger, 579 F.3d at 622 ("we find that the McDonnell Douglas framework

can still be used to analyze ADEA claims based on circumstantial evidence"). Plaintiff

satisfies the first two prongs: she was 85 years old when Defendant undertook an adverse

employment action by deciding not to renew her contract. (Compl. ¶¶ 8, 27.) Third, there

is no question of fact that Plaintiff was objectively qualified for the on-call physician position

when she was not renewed. See Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 575-

76 (6th Cir. 2003) (a court "should focus on a plaintiff's objective qualifications" in

determining whether the plaintiff was qualified for the job held; a court should "focus on

criteria such as plaintiff's education, experience in the relevant industry, and demonstrated

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possession of the required general skills."). Plaintiff argues that younger physicians took

the on-call shifts:

• Dr. Crain, age 38, for all day shifts (selected as the "hospitalist", a new position,

which Plaintiff argues was not posted and which displaced her own position);

• Dr. Pinkowski, age 22, and Dr. Nichols, age 59, for night shifts;

• Remaining day shift doctors were Dr. Glines, age 54, and Dr. Butto, age 56.

(Pl.'s Resp. 23, dkt. 32). Plaintiff admits that Drs. Pinkowski and Nichols were brought on

board prior to her contract end, yet, she argues, the trier of fact could find that they were

"brought on board in preparation for" her ultimate dismissal. (Pl.'s Resp. 23.) But see

Geiger, 579 F.3d at 623 (In the Sixth Circuit, "a person is not considered replaced when his

duties are absorbed by another person 'or when the work is redistributed among other

existing employees already performing related work.'"). 

Viewing the evidence in the light most favorable to Plaintiff, the non-moving party, the

Court will proceed as if Plaintiff has shown a prima facie case. Yet even assuming Plaintiff

met this burden, she has not shown that Defendant's reasons for terminating her were

pretextual. "Once the plaintiff establishes a prima facie case, the burden shifts to the

employer to articulate a legitimate, nondiscriminatory reason for the adverse employment

action. The burden then shifts back to [the] plaintiff to demonstrate that the employer's

stated reason is a pretext for discrimination." Martin v. Barnesville Exempted Vill. Sch. Dist.

Bd. of Educ., 209 F.3d 931, 934 (6th Cir. 2000); McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973); see also Till v. Spectrum Juvenile Justice Servs., 805 F. Supp. 2d 354,

362 (E.D. Mich. 2011) (Edmunds, J.) (applying McDonnell Douglas burden shifting

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analysis). Defendant meets its burden by maintaining that it terminated Plaintiff's contract

because she could not perform the requirements of the position.

To establish pretext, Plaintiff must show that Defendant's given reason for failing to

renew her contract "had no basis in fact, did not actually motivate the defendant's

challenged conduct, or was insufficient to motivate the defendant's challenged conduct."

Lefevers, 667 F.3d at 725 (citations omitted). Plaintiff fails to identify evidence from which

a jury could find that Defendant's reasons for failing to renew her contract were pretext for

engaging in age-based discrimination. Further, Hughes was the same decision-maker who

had renewed Plaintiff's on-call contract in 2008, when Plaintiff was 80 years old, and signed

amendments extending the terms through June 2011 (Plaintiff at age 83) and June 2013

(Plaintiff at age 85). See Mischer v. Erie Metro Housing Author., 168 Fed. Appx. 709, 716

(6th Cir. Feb. 17, 2006) ("The same-actor inference, . . . allows us 'to infer a lack of

discrimination from the fact that the same individual both hired and fired the employee.'");

see also Buhrmaster v. Overnite Transp. Co., 61 F.3d 461 (6th Cir. 1995). Hughes, the

decision-maker, was 70 years old at the time and a member of the same protected class

as Plaintiff, which weakens the inference of discrimination. See Howell v. Canton City Sch.

Dist. Bd. of Educ., 1997 WL 413630 (6th Cir. Jul. 17, 1997); (Def.'s Mot. Summ. J. 23, dkt.

28.). Plaintiff has not carried her burden of showing that Defendant's reasons for failing to

renew her contract were pretext to engage in discrimination based on her age. 

IV. CONCLUSION

For the reasons set forth above, the Court GRANTS in part Defendant's motion for

summary judgment (dkt. 28) on Count II, age discrimination, and DENIES in part

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Defendant's motion for summary judgment on the remaining counts. The Court DENIES

Plaintiff's motion for summary judgment (dkt. 26). 

SO ORDERED. 

 s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: January 9, 2017

I hereby certify that a copy of the foregoing document was served upon counsel of record

on January 9, 2017, by electronic and/or ordinary mail.

 Kelly Winslow for 

Carol Bethel, Case Manager

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