IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SUNIL NAYYAR, M.D., : 

 : 

 Plaintiff, : Case No. 2:12-CV-00189; 

 : 2:10-CV-00135 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

MT. CARMEL HEALTH SYSTEMS, et al., : Magistrate Judge Norah King 

 : 

 Defendants. : 

 

OPINION & ORDER 

I. INTRODUCTION 

 This matter is before the Court on Defendants’ Motion for Summary Judgment 

(“Motion”). (Doc. 90).1 For the reasons set forth herein, Defendants’ Motion is GRANTED. 

II BACKGROUND 

A. Factual Background

 Plaintiff, Sunil Nayyar, M.D. (“Nayyar”), is a resident of Franklin County, Ohio and 

Defendant, Mount Carmel Health Systems (“MCHS”), operates four hospitals in Franklin 

County, Ohio. Plaintiff also names two of his former supervisors at MCHS, Dr. John Weiss and 

Dr. Li Tang, as Defendants. 

 Plaintiff was hired into the Family Medicine Residency Program of Defendant MCHS in 

July 2006. (Plaintiff’s Deposition, Doc. 61 at 16, 18, 26). In July 2007, Plaintiff transferred into 

Defendant MCHS’s Internal Medicine Residency Program (“Residency Program”). (Doc. 61 at 

24, 49-51). The Residency Program is accredited by the Association of Graduate Medical 

Education (“ACGME”). MCHS issues a Residency Physician Handbook (“Handbook”) which 

 

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 Citations to docket are to the docket numbers in the 10-cv-135 case. 

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incorporates ACGME standards for both the Residency Program and the Residents. (Handbook, 

Doc. 95-3). Residents work under one-year contracts, which incorporate by reference the 

provisions of the Handbook. (Contract, Doc. 95-27). Defendant Weiss was Plaintiff’s 

immediate supervisor and Director of the Residency Program. Defendant Li was the Director of 

Medical Education. 

 In January 2009, Plaintiff signed, and gathered signatures of other Residents, a petition 

stating concerns with conditions (“Petition”) in the Intensive Care Unit (“ICU”). (Petition, Doc. 

95-1). Defendant Weiss had also supported the Petition. (Plaintiff’s Deposition, Doc. 61 at 

149). In late June or early July 2009, Plaintiff received a copy of the July ICU Call Schedule 

(“ICU Schedule”) and had concerns about the staffing levels on certain shifts. (Id. at 144-49). 

According to Plaintiff, he approached Defendant Weiss and the following conversation occurred: 

I said that “Without an in-house critical care attending [physician], that safety is 

an active issue, and I mentioned that to him, and I said people will die,” and he 

said, “More to prove my point, we don’t belong in the ICU.”2

(Id. at 145). Defendant Weiss encouraged Plaintiff to take his concerns to Defendant Li.3 (Id.). 

Plaintiff repeated his concerns to Defendant Li and reported his conversation with Defendant 

Weiss. (Id. at 145-46). Plaintiff also gave Defendant Li a copy of his ICU Schedule with some 

notes he had written on it. (Li Deposition, Doc. 95-6 at 171-174). Defendant Li looked into the 

matter and decided not to change the ICU Schedule. (Doc. 61 at 145-46). Plaintiff also 

approached Roy St. John, M.D., an Assistant Medical Director for MCHS, who decided not to 

change the ICU Schedule. (Id. at 147-48). 

 

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 That account is taken directly from Plaintiff’s Deposition (Doc. 61). The recorder appears to have erred in the 

placement of quotation marks, but the Court finds that those errors do not obscure the meaning. 3

 Defendants do not concede Defendant Weiss made the statements attributed to him by Plaintiff. The Court accepts 

Plaintiff’s account as true only for the purposes of the Motion for Summary Judgment. 

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 Subsequent to those conversations, on July 9, 2013, Nurse Lisa Cottrell reported, to her 

supervisors a MCHS, an incident involving Plaintiff which had occurred on July 7, 2013. (Id. at 

Exh. 7). Plaintiff made three unsuccessful attempts to insert an arterial line (“A-line”) into a 

comatose patient. (Id.). Plaintiff then asked two nurses in the room, Cottrell and Amanda 

Bowers, if they would like to try. (Id.). Cottrell informed Plaintiff that it was beyond the scope 

of a nurse’s practice to insert an A-line. (Id.). Bowers agreed to insert the A-line, but told 

Plaintiff “this stays between us.” (Id.). Bowers successfully inserted the A-line on her second 

attempt and Plaintiff then secured the line. (Id.). After the nursing supervisors received 

Cottrell’s report, MCHS initiated an investigation which eventually led to the termination of 

Bowers. (Id. at 232-33). 

 Defendant Weiss received notice of Plaintiff’s involvement in the incident and instructed 

him not to appear for his next shift. (Id. at 92). Defendants state that Plaintiff was instructed not 

to discuss the investigation with other staff until it was finished, but Plaintiff states he received 

no such instruction. (Id. at 116). It is undisputed that during the investigation, Plaintiff 

contacted and discussed the A-line incident with multiple residents and Bowers. (Id. at 95-99). 

Despite this, Plaintiff later told Defendant Weiss that he had not been in contact with Bowers. 

(Id. at 116). 

 On July 22, 2009, following the investigation, Defendant Weiss wrote a letter to Plaintiff 

informing him that he was terminated and listing the reasons. (Termination Letter, Doc. 61-2). 

The letter listed five contacts had made with MCHS personnel during the A-line investigation. 

(Id.). The letter went on to explain that “You [Plaintiff] were specifically instructed by the 

Internal Medicine Residency Program Director to not discuss the events surrounding this arterial 

line placement with any other MCHS employee. Your contact with multiple MCHS employees 

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made the investigation regarding the events surrounding the arterial line placement difficult.” 

(Id.). Defendants determined that Plaintiff’s actions failed to demonstrate the ACGME “core 

competencies” of Interpersonal & Communication Skills, Professionalism, and Systems-based 

Practice. (Id.). Defendants informed Plaintiff he was being terminated for failing to meet 

expectations in those three areas and informed him of his right to request review of the decision. 

(Id.). 

 Plaintiff exercised his right to have the Program Education Committee (the “Committee”) 

review his termination. (Doc. 61 at 131). At an August 6, 2009 hearing, Plaintiff spoke in his 

own defense for 40 minutes. (Committee Decision, Doc. 47-11). The Committee reviewed the 

evidence and upheld Plaintiff’s termination, finding that “the past and recent evidence shows a 

pattern of behavior of [Nayyar] that are inconsistent with both the ACGME core competency of 

Professionalism and the policies and standards of the Mount Carmel Heath System.” (Id.). 

Plaintiff then challenged the fairness of the termination process. Defendant Li formed “a special 

Administrative Review Committee to review the entire process.” (Li Letter, Doc. 47-12). The 

Administrative Review Committee “reached the conclusion unanimously that the appeal process 

in place is consistent with the [ACGME] policies and that Due Process has been honored.” (Id.). 

B. Procedural Background

 Plaintiff originally filed suit challenging his termination in this Court in 2010 (2:10-cv135). In 2012 Plaintiff filed a similar suit in the Franklin County Court of Common Pleas, which 

Defendants successfully removed to this Court (2:12-cv-189). This Court consolidated the two 

cases. (See Doc. 21 in 2:12-cv-189). In the consolidated suit, there are ten causes of action 

pending before the Court. Defendants have filed a Motion for Summary Judgment on all counts. 

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Plaintiff opposes the Motion. Briefing is completed and oral argument was held on May 16, 

2013. The matter is now ripe for adjudication. 

III. STANDARD OF REVIEW

 Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is 

appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any material fact and 

the moving party is entitled to judgment as a matter of law.” A fact is deemed material only if it 

“might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United 

States, 20 F.3d 222, 224 (6th Cir.1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247–48, (1986)). 

The nonmoving party must then present “significant probative evidence” to show that 

“there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris 

Cos., Inc., 8 F.3d 335, 339–40 (6th Cir.1993). The suggestion of a mere possibility of a factual 

dispute is insufficient to defeat a movant's motion for summary judgment. See Mitchell v. Toledo 

Hospital, 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v. Allen–Bradley Co., 801 F.2d 859, 

863 (6th Cir.1986)). Further, “summary judgment will not lie if the dispute is about a material 

fact that is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict 

for the non-moving party.” Anderson, 477 U.S. at 248. When a plaintiff, however, invokes 

summary judgment “and a showing is made by the [plaintiff], the burden rests on the [defendant] 

to show that he has a ground of defense fairly arguable and of a substantial character.” Pen-Ken 

Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d 871, 877 (6th Cir.1943). 

The necessary inquiry for this Court in determining whether summary judgment is 

appropriate is “whether ‘the evidence presents a sufficient disagreement to require submission to 

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a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Patton v. 

Bearden, 8 F.3d 343, 346 (6th Cir.1993) (quoting Anderson, 477 U.S. at 251–52). In evaluating 

such a motion, the evidence must be viewed in the light most favorable to the nonmoving party. 

See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The mere existence of a scintilla of 

evidence in support of the opposing party's position will be insufficient; there must be evidence 

on which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251; 

Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995). Self-serving affidavits, alone, are not 

enough to create an issue of fact sufficient to survive summary judgment. Wolfe v. Vill. of Brice, 

Ohio, 37 F. Supp. 2d 1021, 1026 (S.D. Ohio 1999). See Anderson, 477 U.S. at 251; Copeland,

57 F.3d 476 at 479. 

 With regard to affidavits, Rule 56 (e) requires that affidavits submitted in support of, or 

in opposition to, motions for summary judgment include facts based on personal knowledge, and 

that personal knowledge “must be evident from the affidavit.” Reddy v. Good Samaritan Hosp. 

& Health Ctr., 137 F.Supp.2d 948, 956 (S.D. Ohio 2000). Affidavits at the summary judgment 

stage also may not rely upon inadmissible hearsay because inadmissible hearsay “cannot create a 

genuine issue of material fact.” North American Specialty Ins. Co. v. Myers, 111 F.3d 1273, 83 

(6th Cir.1997). 

IV. LAW & ANALYSIS 

 Defendant has moved for summary judgment on all ten counts remaining before this 

Court. For the reasons stated below, Defendant’s Motion is granted in its entirety. 

A. Race and National Origin Discrimination under 18 U.S.C. Section 1981 and O.R.C. 4112

 Plaintiff brings two claims, one under 18 U.S.C. § 1981 and one under O.R.C. § 4112.02, 

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for race and national origin discrimination.4 This Court analyzes the federal and state claims 

“together, however, because ‘Ohio’s requirements are the same as under federal law.’” Russell 

v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir. 2008), citing Carter v. Univ. of Toledo, 348 F.3d 

269, 272 (6th Cir. 2003). Since Plaintiff lacks direct evidence of Defendants’ alleged 

discrimination, he attempts to prove his “claims of disparate treatment by use of circumstantial 

evidence of discrimination according to the burden-shifting framework outlined in McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973).” Id. Under McDonnell Douglas a plaintiff first 

bears the burden of establishing a prima facie case of discrimination by showing that: “(1) she is 

a member of a protected group; (2) she was subject to an adverse employment decision; (3) she 

was qualified for the position; and (4) she was replaced by a person outside of the protected 

class.” Carter, 348 F.3d at 273. Where applicable, a plaintiff may satisfy the fourth prong “by 

adducing evidence that she ‘was . . . treated differently than similarly situated non-protected 

employees.’” Russell, 537 F.3d at 604, quoting Newman v. Fed. Express Corp., 266 F.3d 401, 

406 (6th Cir. 2001). In Mitchell v. Toledo Hosp., 964 F.2d 577, 584 (6th Cir. 1992), the Sixth 

Circuit held that in order to satisfy her burden, a plaintiff must show the non-protected employee 

is “similarly situated in all respects.” In Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 

344, 352 (6th Cir. 1998), however, the Sixth Circuit refined the Mitchell holding to clarify that a 

“plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must be 

similar in all of the relevant respects.” (emphasis in original) 

 Here, there is no dispute that Plaintiff has satisfied the first three prongs of the 

McDonnell Douglas framework. The sole issue of contention is whether Plaintiff has identified 

a similarly situated, non-protected employee who was treated more favorably. Plaintiff identifies 

 

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 Plaintiff’s race is “South Asian” and his national origin is “Indian,” though he is a citizen of the United States. For 

the purposes of Plaintiff’s suit, there is no significant difference between his allegations of race and national origin 

discrimination. The Court, thus, analyzes both elements together as “Defendants’ alleged discrimination.” 

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one employee whom he alleges was similarly situated and received more favorable treatment, 

Jonathan Border, M.D., (“Borders”). Borders was also a third-resident in the Plaintiff’s 

residency program. According to Plaintiff, Borders was chronically tardy or absent for both 

meetings and shifts. Weiss Deposition II, Doc. 95-13 at 10-29. Borders also lied to supervisors 

about his absences. Id. Borders was ultimately terminated shortly after Plaintiff. Id. 

 Plaintiff argues that since both he and Borders were third-year residents in the same 

residency program who lied to supervisors, the lone significant difference between the two was 

their respective races and national origins. Borders is Caucasian and of U.S. origin, whereas 

Plaintiff is South Asian and of Indian origin. Both physicians were ultimately subject to the 

same adverse employment decision, termination, but Plaintiff alleges Borders received the 

benefit of progressive discipline while Plaintiff did not. 

 Plaintiff has oversimplified the situations of himself and Borders to present the illusion of 

similarity where little exists. While Plaintiff accurately asserts that both he and Borders were 

third-year residents who lied to their supervisors with regard to disciplinary issues, that is where 

the similarities end. Borders had lied about his tardiness and absenteeism. There is no evidence 

Borders otherwise interfered with investigations into his conduct at any time. Nayyar’s conduct 

involved patient care, the insertion of an arterial line. The Committee found that Plaintiff failed 

to perform adequately the procedure and then instructed an unqualified nurse to do it in his place. 

While the Court accepts Plaintiff’s contention that absenteeism in a hospital indirectly affects 

patient safety, ordering nurses to perform procedures they are not qualified to perform and then 

lying during the investigation directly affects patient safety. Furthermore, the record 

demonstrates that Plaintiff went on to contact co-workers during the investigation and discuss the 

incident and investigation with them. Amongst the co-workers he contacted was the nurse whom 

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he had instructed to perform the A-line insertion. Those contacts, regardless of Plaintiff’s 

motives, interfered with the investigation. That interference is misconduct that arguably goes far 

beyond Borders’s denials of his own absences. Defendants reasonably concluded that Plaintiff 

was orchestrating interference with the investigation. 

 While the law does not task Plaintiff with the burden of identifying a fellow employee 

who was similarly situated in every regard, Plaintiff’s argument that he and Borders were 

disciplined differently for the same offense of “lying” is disingenuous. Not all instances of lying 

are the same. The facts Defendants relied upon in terminating Plaintiff demonstrate Plaintiff’s 

dishonest conduct was more egregious than that of Borders, and directly implicated patient 

safety. Hence, Plaintiff has failed to identify a similarly situated employee who was more 

favorably treated. Plaintiff fails to satisfy his burden of making a prima facie case under 

McDonnell Douglas. 

 Defendant’s Motion for Summary Judgment on Plaintiff’s U.S.C. § 1981 and O.R.C. § 

4112.02 claims is, thus, GRANTED. 

B. Ohio Whistleblower Retaliation under O.R.C. § 4113.52 

 Plaintiff also claims that his termination violated Ohio’s “whistleblower” protection 

statute, O.R.C. § 4113.52, which states that: 

If an employee becomes aware in the course of the employee's employment of a 

violation of any state or federal statute or any ordinance or regulation of a 

political subdivision that the employee's employer has authority to correct, and 

the employee reasonably believes that the violation is a criminal offense that is 

likely to cause an imminent risk of physical harm to persons or a hazard to public 

health or safety, a felony, or an improper solicitation for a contribution, the 

employee orally shall notify the employee's supervisor or other responsible officer 

of the employee's employer of the violation and subsequently shall file with that 

supervisor or officer a written report that provides sufficient detail to identify and 

describe the violation. If the employer does not correct the violation or make a 

reasonable and good faith effort to correct the violation within twenty-four hours 

after the oral notification or the receipt of the report, whichever is earlier, the 

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employee may file a written report that provides sufficient detail to identify and 

describe the violation with the prosecuting authority of the county or municipal 

corporation where the violation occurred, with a peace officer, with the inspector 

general if the violation is within the inspector general's jurisdiction, or with any 

other appropriate public official or agency that has regulatory authority over the 

employer and the industry, trade, or business in which the employer is engaged. 

O.R.C. § 4113.52(A)(1)(a). In summary, the statute provides four requirements an employee 

must satisfy before receiving the statutory protection: (1) a violation of a statute or other 

regulation; (2) a reasonable belief that the violation is a criminal offense likely to cause 

imminent risk of physical harm or public safety; (3) oral notice of the violation to a supervisor; 

and (4) a written report with sufficient detail to identify the violation to a supervisor. An 

employee receives whistleblower protection only after satisfying the four requirements. The 

Ohio Supreme Court has held that: 

[I]n order for an employee to be afforded protection as a ‘whistleblower,’ such 

employee must strictly comply with the dictates of R.C. 4113.52. Failure to do so 

prevents the employee from claiming the protections embodied in the statute. 

Contreras v. Ferro Corp., 652 N.E.2d 940, 946 (Ohio 1995). 

 Until oral argument on this Motion, Plaintiff had failed to elaborate exactly what statute 

Defendants allegedly violated. Plaintiff’s counsel has now represented Plaintiff believed 

Defendants had violated O.R.C. § 2903.34, which makes “patient abuse or neglect” a criminal 

offense. Of course, an attempt to commit patient abuse or neglect would also be a criminal 

violation. O.R.C. § 2923.02. Although Plaintiff has not stated the matter so starkly, he asks the 

Court to find a violation of actual, or attempted, abuse or neglect of patients in violation of 

Ohio’s Criminal Code. 

 Whether Defendants attempted to abuse or neglect patients is a threshold matter. If they 

did not, then there was no “violation of any state or federal statute” and Plaintiff cannot satisfy 

any of the four requirements of O.R.C. § 4113.52(A)(1)(a). Since there is no evidence that 

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patients in Mt. Carmel’s ICU were actually abused or neglected, Plaintiff’s claim rests on 

whether any of Defendants attempted to abuse or neglect patients. 

 Plaintiff’s only evidence of such an attempt is his affidavit and deposition testimony 

describing a conversation he had with Defendant Weiss in early July 2009. Plaintiff’s Affidavit, 

Doc. 95-4 at ¶¶ 15-21. Plaintiff had received the ICU Schedule for July and was concerned that 

the staffing would be insufficient for certain shifts. Id. Plaintiff then alerted Defendant Weiss of 

his concerns. Id. Plaintiff has described the ensuing conversation between himself and 

Defendant Weiss differently in his affidavit as opposed to his deposition. In Paragraph 18 of his 

affidavit, Plaintiff summarizes the conversation: “Dr. Weiss told me, to my surprise and shock, 

that he wanted patients to die to prove his point about assignment of residents (internal medicine) 

to the ICU.” Id. Later, in Paragraph 47 of Plaintiff’s affidavit, he recalls the same conversation 

thusly: “I only know that Dr. Weiss stated that the July 2009 schedule would result in patients 

dying.” Id. at ¶47. In Plaintiff’s deposition, however, he recalls the conversation in greater 

detail: 

I said that “Without an in-house critical care attending, that safety is an active 

issue, and I mentioned that to [Weiss], and I said people will die,” and [Weiss] 

said, “More to prove my point, we don’t belong in the ICU.” 

Plaintiff’s Deposition, Doc. 61 at 145. The full account provides significant context which is lost 

in Plaintiff’s conclusory statement that Defendant Weiss “wanted patients to die.” An ICU cares 

for the most ill patients in any hospital. Some patients in an ICU face the inevitability of death. 

Defendant Weiss’s recognition of that fact does not demonstrate an intent to abuse or neglect 

patients. Nor does the statement “More to prove my point” show Defendant Weiss wanted 

patients to die for the purposes of his dispute with the administration regarding ICU staffing. 

Weiss’s statement is logical: if more than the usual number of patients dies in an ICU, a hospital 

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would likely increase staffing there. There is evidence in the record that both Plaintiff and 

Defendant Weiss were concerned about the sufficiency of ICU staffing. Defendant Weiss had 

even supported Plaintiff’s petition which called for increased ICU staffing. Doc. 61 at 149. 

Some may deem Weiss’s comment insensitive, or even ill-advised, but it does not demonstrate 

an intent to harm patients. Although the Court makes every favorable inference for Plaintiff, as 

the nonmoving party, Plaintiff cannot create a disputed issue of material fact merely by relying 

on his own self-serving affidavit or legally conclusory statements. Plaintiff has failed to adduce 

any evidence, aside from his affidavit, that Defendant Weiss or any Defendant, attempted to 

abuse, neglect, or otherwise harm patients. Moreover, Plaintiff’s deposition testimony fails to 

ascribe any statements to Defendants which can reasonably be construed to demonstrate intent to 

harm patients. Since Plaintiff has failed to demonstrate a violation of law which would invoke 

the whistleblower protections of O.R.C. § 4113.52(A)(1)(a), Plaintiff’s claim under that statute is 

dismissed.

 It should be noted that even if the Court did find Plaintiff had raised a disputed issue of 

material fact with regard to a violation of law, the Court would still have to dismiss his § 

4113.52(A)(1)(a) claim for Plaintiff’s failure to comply with the written notice requirement. A 

Plaintiff seeking protection under § 4113.52(A)(1)(a) must have made a “written report that 

provides sufficient detail to identify and describe the violation.” Plaintiff argues he satisfied the 

written report requirement by submitting, to Defendant Li, a copy of the ICU Schedule on which 

Plaintiff had written notes. One problem for Plaintiff is that he has no copy of this schedule and 

no evidence, aside from his own affidavit, that he ever submitted such a writing. The absence of 

evidence regarding the report’s existence alone, however, does not defeat Plaintiff’s claim, 

particularly as he elsewhere alleges spoliation of evidence. 

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 The “report” Plaintiff claims to have submitted is insufficient because even accepting 

Plaintiff’s explanation of its contents, the annotated schedule does not satisfy the requirement 

that a report put supervisors on notice that a criminal violation has occurred. Plaintiff’s 

supervisor, Defendant Li, had presumably already seen or could easily access the schedule 

Plaintiff gave her. Plaintiff’s handwritten notes indicating concerns of insufficient staffing for 

various shifts do not convert the ICU Schedule into a report of a criminal violation. In Plaintiff’s 

deposition, he was asked, “What was the writing on that schedule [that Plaintiff gave to 

Defendant Li] that you can recall?” Plaintiff responded: 

It was highlighting days where all the residents were by themselves in ICU at 

night flow and on the weekend without another intern on-board, and it also had 

information of how the schedule worked, and then [Dr. Li] was also making notes 

on it as well.” 

Plaintiff’s Deposition, Doc. 62, at 326. Plaintiff did not testify at his deposition that he had 

written on the schedule Defendant Weiss’s statement regarding patient deaths in the ICU, though 

Plaintiff’s counsel did make such a representation at oral argument. Certainly, the law does not 

require a plaintiff to type the report or submit it on a particular form, but this Court does not 

accept that handwritten notes indicating staffing shortages constitute a report of a criminal 

violation. If the Plaintiff had actually believed Defendant Weiss was trying to harm patients, the 

suggestion that he would simply have jotted that fact down in the margins of a schedule strains 

the Court’s credulity. Plaintiff has, thus, failed to satisfy the written report requirement of 

O.R.C. § 4113.52. 

 Defendant’s Motion for Summary Judgment on Plaintiff’s claim of an O.R.C. § 4113.52 

violation is GRANTED. 

C. Wrongful Termination in Violation of Public Policy 

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 Plaintiff claims, under tort law, that his termination violates Ohio’s public policy. To 

state a claim that a termination violates Ohio’s public policy, a plaintiff must demonstrate: (1) 

that a clear public policy existed and was manifested in a state or federal constitution, statute or 

administrative regulation, or in the common law (the clarity element); (2) that dismissing 

employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize 

the public policy (the jeopardy element); (3) the plaintiff’s dismissal was motivated by conduct 

related to the public policy (the causation element); and (4) the employer lacked overriding 

legitimate business justification for the dismissal (the overriding justification element). Collins 

v. Rizkana, 652 N.E.2d 653, 657-58 (Ohio 1995). The clarity and jeopardy elements are 

“questions of law to be determined by the court.” Id. at 658. 

 At oral argument, Plaintiff argued the public policy allegedly violated is embodied in 

Ohio’s criminal statutes which prohibit attempts to cause injury or death to a person. While it is 

clear that Ohio wishes to protect its citizens from injury, Plaintiff has cited no source for a public 

policy exception to employment at-will where an employee has a dispute with a supervisor over 

a patient care decision. By Plaintiff’s own admission, he did not report that Defendant Weiss 

was actively attempting to harm patients. Rather, in Plaintiff’s view, Defendant Weiss had not 

ensured sufficient staff coverage in the ICU, and Plaintiff believed that would result in harm to 

patients. That is what Plaintiff reported to Defendant Li, as evidenced by the fact that the only 

document he gave her was an ICU Schedule. He had not reported an assault on a patient, much 

less an incident of “intentionally causing the death of a person.” Plaintiff’s Response, Doc. 95 at 

36. At least one Ohio court has held that there is no public policy exception to employment atwill where a physician was terminated after notifying supervisors of his concerns that a new 

admittance policy would negatively impact patient care. Mitchell v. Mid-Ohio Emergency 

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Services, L.L.C., 2004 WL 2803419 (Ohio 10th Ct. App. Sep. 30, 2004). In light of Ohio 

precedent and Plaintiff’s failure to satisfy the clarity element of the termination in violation of 

public policy claim, Plaintiff’s claim is dismissed. 

 Defendants’ Motion for Summary Judgment on Plaintiff’s claim of wrongful termination 

in violation of public policy is GRANTED. 

D. Federal False Claims Act 

 Plaintiff states a claim for violation of the Federal False Claims Act (“FCA”). 31. U.S.C. 

§ 3730(h). On summary judgment, a plaintiff bears the burden of making a prima facie showing 

on FCA claims. Scott v. Metroplitan Health Corp., 234 Fed.Appx. 341, 346 (6th Cir. 2007). 

Plaintiff wholly failed to address the FCA claim in his written briefing on this Motion or at oral 

argument. Plaintiff has, thus, failed to make a prima facie showing. 

 Defendants’ Motion for Summary Judgment on Plaintiff’s claims under the FFCA is, 

therefore, GRANTED. 

E. Tort of Abuse of Process 

 Plaintiff states a claim for “abuse of process” under the common law. To state a 

cognizable claim for abuse of process under the common law of Ohio, a plaintiff must allege: 

“(1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) 

that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it 

was not designed; and (3) that direct damage has resulted from the wrongful use of process.” 

Yaklevich v. Kemp, Schaeffer & Rowe Co., 626 N.E.2d 115, 116 (Ohio 1994). This Court has 

previously found that “an administrative investigation for employment purposes . . . is not a legal 

proceeding.” Gillman v. Schlagetter, 777 F.Supp.2d 1084, 1099 (S.D. Ohio 2010). In Gillman,

the defendant-employer was a public entity, the county sheriff’s office. Here, where the 

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employer is a private entity, the investigation and subsequent termination proceeding of Plaintiff 

is even less like a legal proceeding. The Court, therefore, finds Plaintiff’s termination 

proceeding was not a legal proceeding for the purposes of an abuse of process claim. Hence, 

Plaintiff has failed state a cognizable claim for abuse of process. 

 Defendants’ Motion for Summary Judgment on Plaintiff’s abuse of process claim is 

GRANTED. 

F. Intentional Infliction of Emotional Distress 

 Plaintiff also alleges that his termination by Defendants was an intentional infliction of 

emotional distress (IIED). Under Ohio law, a plaintiff seeking to recover for IIED must prove: 

(1) that the defendant either intended to cause emotional distress, or knew or 

should have known that its conduct would result in serious emotional distress to 

the plaintiff; (2) that the defendant's conduct was so extreme and outrageous as to 

go beyond all possible bounds of decency and was such that it can be considered 

utterly intolerable in a civilized community; (3) that the defendant's actions 

proximately caused psychological injury to the plaintiff; and (4) that the plaintiff 

suffered serious emotional distress of a nature no reasonable person could be 

expected to endure. 

Rhoades v. Chase Bank, 2010 WL 5550703 (Ohio 10th Ct. App. Dec. 30, 2010). Plaintiff’s 

claim fails to satisfy any of the four elements. There is no factual dispute that Plaintiff was 

terminated after lying and contacting potential witnesses in a disciplinary investigation. As 

discussed above, Defendants had cause to terminate Plaintiff. Moreover, Plaintiff was afforded 

some process, including an opportunity to be heard and an appeal. While Plaintiff may have felt 

dissatisfied with the extent of the process, Defendants’ conduct fell short of being “extreme and 

outrageous.” Furthermore, Plaintiff has failed to adduce any evidence that he experienced 

emotional distress. There is no evidence he has sought treatment for any emotional distress 

relating to his termination which, though not legally required, would help Plaintiff’s claim satisfy 

the third and fourth elements of IIED. Plaintiff’s own statement that he felt “distressed,” without 

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something more, is insufficient to create a material issue of fact as to his emotional distress. 

Plaintiff’s claim fails to demonstrate any of the four elements of IIED required under Ohio law. 

 Defendants’ Motion for Summary Judgment on Plaintiff’s claims of intentional infliction 

of emotional distress is GRANTED. 

G. Spoliation of Evidence 

 Plaintiff claims Defendants either destroyed or failed to preserve evidence necessary to 

prove his other claims, particularly the whistle blower claims. Ohio law does recognize a claim 

for “interference with or destruction of evidence,” the elements of which are: 

(1) pending or probable litigation involving the plaintiff, (2) knowledge on the 

part of defendant that litigation exists or is probable, (3) willful destruction of 

evidence by defendant designed to disrupt the plaintiff’s case, (4) disruption of 

the plaintiff’s case, and (5) damages proximately caused by the defendant’s acts. 

Smith v. Howard Johnson Co., Inc., 615 N.E.2d 1037 (Ohio 1993). The sole document Plaintiff 

specifically alleges was destroyed is the copy of the ICU Schedule with his notes, which he gave 

to Defendant Li. Plaintiff’s Response, Doc. 95, at 39. Plaintiff also asserts Defendants “failed to 

preserve key documents needed to establish Plaintiff’s claims” without identifying what those 

documents are. There is simply no evidence in the record to support “willful destruction,” as 

required to sustain a cause of action for destruction of evidence. There is no dispute that Plaintiff 

gave Defendant Li an ICU Schedule with notes on it. There is also no dispute that this document 

no longer exists. In her deposition, Defendant Li was asked whether she had put Plaintiff’s Call 

Schedule in her files, to which she responded “I honestly do not recall.” Doc. 95-6 at 173. 

Although she does not recall what she did with the document, Defendant Li did act on the 

information, as demonstrated by the e-mail she sent to Defendant Weiss regarding the ICU 

Schedule. Id. When Defendant Li received the ICU Schedule, on June 22, 2009, Plaintiff was 

still employed by Mt. Carmel. Neither Plaintiff nor Defendants had any reason to believe 

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litigation was probable. It is not surprising that Defendant Li would not have filed that particular 

copy of the schedule. She could easily access another copy. There is no evidence in the record 

that Defendant Li willfully destroyed Plaintiff’s copy of the ICU Schedule, or even had a motive 

to do so. 

 Moreover, Plaintiff has not explained how the absence of this document has prejudiced 

him, given that there is no dispute over the fact the document would serve to prove, namely, that 

Plaintiff had concerns with ICU staffing which he reported to Defendants. A copy of the ICU 

Schedule is in the record and Defendants Weiss and Li have given deposition testimony that 

Plaintiff shared his concerns that ICU staffing was insufficient. 

 Plaintiff has adduced no evidence to refute Defendants’ showing that they did not destroy 

the ICU Schedule, or any other document, in anticipation of litigation. Hence, Defendants’ 

Motion for Summary Judgment on Plaintiff’s spoliation of evidence claim is GRANTED. 

H. Breach of Contract 

 Plaintiff also alleges that Defendants breached his employment contract with MCHS. 

The employment contract (Doc. 95-27) incorporates, by reference, the Residency Physician 

Handbook and Policies Manual (Doc. 95-3). Under Ohio law, a party alleging breach of contract 

must prove that: 

(1) a contract existed, (2) the complaining party fulfilled its contractual 

obligations, (3) the opposing party failed to fulfill its obligations, and (4) the 

complaining party incurred damages as a result of this failure. 

Marion Forum, L.L.C. v. Lynick Ents., Inc., 2012 WL 6571399, at *2 (Ohio 3d Ct. App. Dec. 17, 

2012). 

 There is no dispute that a contract existed, but both parties allege the other breached the 

contract first. Plaintiff alleges Defendants failed to fulfill their obligations in two ways. The 

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first alleged breach is Defendants’ denying him the “right of access” to his personnel file during 

termination proceedings, citing to page 12 of the Handbook. Contrary to Plaintiff’s contention, 

the Court’s review of page 12 of the Handbook reveals no mention of a right to access a 

personnel file, nor does the evidence show Plaintiff was denied any of the termination 

procedures guaranteed by his contract. 

 While the Handbook discusses termination procedures, the evidence demonstrates 

Plaintiff’s termination complied with those procedures. Defendant Weiss wrote a letter on July 

22, 2009 listing the specific reasons Plaintiff was terminated: his misconduct during the A-line 

insertion and subsequent interference with Defendants’ investigation. Termination Letter, Doc. 

61-2. The letter also identifies program expectations Plaintiff failed to meet. Id. Plaintiff 

subsequently appealed the termination decision to the Committee, consistent with the procedures 

outlined by his contract. (Doc. 95-3 at 12) At the review hearing, Plaintiff spoke in his own 

defense for forty minutes. Committee Decision, Doc. 95-11. The Committee decided to uphold 

the termination, as it communicated in writing on August 6, 2009. Id. Plaintiff then challenged 

the sufficiency of the review process. Defendant Weiss wrote a letter on August 26, 2009 that 

the Administrative Review Committee had considered Plaintiff’s challenge and rejected it. Doc. 

62-2. Defendants appear to have gone to great lengths to ensure Plaintiff received notice of the 

reasons for his termination, an opportunity to be heard, and an appeal. Plaintiff has adduced no 

evidence to show Defendants’ breached their contractual obligations with regard to his 

termination proceedings. 

 Plaintiff also alleges Defendants breached the 80-hour weekly limit for residents. 

Handbook, Doc. 95-3 at 18. Plaintiff has adduced no evidence aside from his own statements 

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that Defendants breached the 80-hour limit, nor that they coerced residents to work in excess of 

80 hours. Plaintiff does not even make such assertions in his affidavit. 

 In summary, there is no evidence in the record that Defendants breached their obligations 

to Plaintiff under his employment contract. The evidence in the record demonstrates that, to the 

contrary, Defendants did provide Plaintiff with due process following his termination. The Court 

does not reach the question of whether Plaintiff’s interference with the A-line incident 

investigation constituted a breach of contract by Plaintiff. 

 Defendants’ Motion for Summary Judgment on Plaintiff’s breach of contract claim is, 

thus, GRANTED. 

I. Promissory Estoppel and Fraudulent Misrepresentation 

 Plaintiff also makes a claim for promissory estoppel and fraudulent misrepresentation 

“based on the [Defendants’] failure to comply with termination procedures and publication of 

confidential information in his personnel file to the media.” Plaintiff’s Response, Doc. 95, at 40. 

In Ohio, “the elements necessary to establish a claim for promissory estoppel are: (1) a promise 

clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) 

the reliance must be reasonable and foreseeable; and (4) the party claiming estoppel must be 

injured by the reliance.” Sims v. Village of Midvale, 2012 WL 6681851, at *4 (Ohio 5th Ct. App. 

Dec. 18, 2012). The elements of a claim for fraudulent misrepresentation with regard to a 

contract are: “(1) a false representation concerning a fact material to the transaction; (2) 

knowledge of the falsity of the statement or utter disregard for its truth; (3) intent to induce 

reliance on the misrepresentation; (4) reliance under circumstances manifesting a right to rely; 

and (5) injury resulting from the reliance.” Dana Partners, L.L.C. v. Kovisto Constructors and 

Erectors, Inc., 2012 WL 6783637, at *11 (Ohio 11th Ct. App. Dec 31, 2012). 

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1. Termination Procedures 

 Again, Plaintiff fails to adduce any evidence of the allegations regarding his termination 

beyond conclusory statements that his termination, and the procedures related to it, violated 

Defendants’ obligations to him. The Court already explained that the evidence in the record 

demonstrates Defendants did comply with the promised termination procedures. Defendants 

have adduced evidence that the termination procedures were fair: (1) the first letter from 

Defendant Weiss to Plaintiff informing him of his termination and the reasons (Doc. 61-2); (2) 

the second letter informing Plaintiff the Program Education Committee upheld the termination 

after a hearing where Plaintiff defended himself (Doc. 95-11); (3) the third letter informing the 

Plaintiff that the Administrative Review Committee had upheld the fairness of the appeal process 

(Doc. 62-2); and (4) the statement of Nurse Cottrell who observed Plaintiff instruct Bowers to 

insert the A-line (Doc. 62-4). In the face of this evidence that the termination procedures were 

fair and the termination relied upon evidence, Plaintiff can offer only his own statements in his 

affidavit and deposition. Those statements do not create an issue of material fact as to the 

fairness of the termination procedures. There is no evidence that Defendants violated their 

contractual obligation to provide Plaintiff with due process prior to termination, nor that they 

falsely represented the nature of termination procedures. Plaintiff simply states that he does not 

believe the procedures were fair. Plaintiff’s allegations of unfair termination procedures, thus, 

do not support a cause of action for either promissory estoppel or fraudulent misrepresentation. 

2. Publication of Information in Personnel File

 Plaintiff correctly asserts that the Residency Handbook (Doc. 95-3), incorporated by 

reference into his employment contract, states that generally a resident’s personnel file is 

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confidential. Doc. 95-3, at 19. The Handbook does, however, carve out an exception to this 

general rule: 

Only the Program Director of the resident and/or Director of Medical Education 

may disclose the file, or portion thereof, at the request of a third part, which they 

judge as having a legitimate reason for accessing the information, e.g. for matters 

relating to the education of the trainee, the quality of the education in the 

program, or the quality of patient care in the program. 

Id. Plaintiff alleges that Defendants breached this obligation by making the following statement 

to the news media, “Dr. Nayyar was dismissed from his medical residency program following a 

thorough investigation into a patient care safety issue for which he was responsible.” ONN 

Article, Doc. 95-14. The Court notes that Plaintiff’s own public statements, made in various 

complaints before this Court, disclosed that he had been investigated for the A-line incident and 

subsequently terminated. See, e.g., Plaintiff’s Second Amended Complaint, Doc. 33, at ¶¶ 31-38. 

Plaintiff has failed to explain how the A-line incident was not a patient care safety issue. 

Additionally, the Court cannot imagine how an incident involving the insertion of an arterial line 

is not a patient care safety issue, even if no harm results. That would bring Defendants’ 

statement to the media within the disclosure exception for matters related to the quality of patient 

care in the program. Plaintiff’s suggestion that the article did not relate to patient care is 

confounding, particularly given Plaintiff’s statements in the article expressing his concerns about 

patient care in the program, for example, “At night, there were no in-house critical care 

physicians, and that raised a lot of concerns,” and “[i]f no one stands up to things like this, 

people will suffer and ultimately die.” ONN Article, Doc. 95-14. Plaintiff filed a lawsuit 

alleging failings of patient care by Defendants and that his termination was the result of speaking 

out on those alleged failings. He then repeated similar statements to the news media. 

Defendants expressed their version of why Plaintiff was terminated in a single sentence which 

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gave no details not already in Plaintiff’s Second Amended Complaint. The statement manifestly 

touched on “the quality of patient care in the program,” which Plaintiff had criticized. Plaintiff 

offers no evidence, aside from his conclusory allegations, that Defendants broke their obligation 

to keep information in his personnel file confidential, particularly as that confidentiality 

provision allowed for numerous exceptions. Plaintiff’s allegations that Defendants wrongly 

disclosed confidential information from his personnel file, thus, do not support a cause of action 

for either promissory estoppel or fraudulent misrepresentation. 

 Plaintiff has failed to rebut Defendants’ evidence that they did not breach obligations to 

Plaintiff, explicit or implicit, regarding termination procedures or confidentiality. Defendants’ 

Motion for Summary Judgment on Plaintiff’s claims of promissory estoppel and fraudulent 

misrepresentation is GRANTED. 

J. Termination of Borders in Violation of O.R.C. § 4112.02 

 In addition to Plaintiff’s first claim for discrimination under O.R.C. § 4112.02, he states 

an additional claim, alleging that Defendants terminated Dr. Borders in order to frustrate 

Plaintiff’s first § 4112.02 claim. This second claim § 4112.02 has no basis in law. Essentially, 

Plaintiff contends Defendants terminated Borders so that Plaintiff could not cite Borders as an 

example of a similarly situated employee under U.S.C. § 1981 and O.R.C. § 4112. Borders’s 

termination, however, was not an injury to Plaintiff, nor has Plaintiff adduced any evidence that 

Borders was terminated to frustrate Plaintiff’s recovery. 

 Borders’s termination is not at issue in this case. Defendants could have terminated 

Borders for any reason; Plaintiff has provided evidence that Defendants would have had cause to 

terminate Borders for absenteeism and dishonesty. Plaintiff appears to recognize this claim lacks 

merit as he fails to mention it in his Response. 

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 Since Plaintiff fails to state a cognizable claim for the termination of Dr. Borders under 

O.R.C. § 4112.02, Defendants’ Motion for Summary Judgment on Plaintiff’s second claim under 

O.R.C. § 4112.02 is GRANTED. 

V. CONCLUSION 

For the reasons stated above, Plaintiff has failed to raise any disputed issues of material 

fact with respect to any of his pending claims against Defendants. Thus, Defendants’ Motion for 

Summary Judgment with respect to all Defendants and all claims is, hereby, GRANTED. 

Plaintiff’s Complaints, in cases 2:10-cv-135 and 2:12-cv-189, are DISMISSED in their entirety. 

 IT IS SO ORDERED.

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

 

DATED: June 3, 2013

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