IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION

NICOLE CHRIST, 

 Plaintiff, 

 v. 

UNIVERSITY OF FINDLAY, et al., 

 Defendants. 

: 

: 

: 

: 

: 

CASE NO. 1:17-cv-713 

Judge William O. Bertelsman 

DEFENDANT ULTIMATE REHAB, 

LTD.’S CONSOLIDATED MOTION TO 

DISMISS FIRST AMENDED 

COMPLAINT AND REPLY IN 

SUPPORT OF MOTION TO DISMISS 

COMPLAINT 

 

I. INTRODUCTION 

 Plaintiff’s attempts to fit a square peg into a round hole are unpersuasive and futile. She cites 

to no case in which an unpaid student internship was found to be a public accommodation, and she 

cites to no case in which an unpaid student internship was found to create a sufficient employment 

relationship or have a sufficient impact on employment opportunities for purposes of employment 

discrimination law. Indeed, the applicable case law is uniform in concluding that an unpaid student 

internship does not create liability under employment discrimination law. 

II. PROCEDURAL BACKGROUND 

 In her Complaint (Doc. 1) (“Complaint”), filed against both Defendant University of Findlay 

(the “University”) and Defendant Ultimate Rehab, Ltd. (“Ultimate Rehab”), Plaintiff alleges that 

Ultimate Rehab denied her access to its public accommodation in violation of Title III of the 

Americans with Disabilities Act, 42 U.S.C. § 12102, et seq., (“ADA”) and discriminated against her 

with regard to the terms and conditions of her employment in violation of both Title I of the ADA 

and the Ohio Civil Rights Act, O.R.C. § 4112, et seq., (“OCRA”). On December 22, 2017, Ultimate 

Rehab filed its Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) and Memorandum in Support 

(Doc. 8) (“Motion”) seeking dismissal of all claims against it. 

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2 

 In response to Ultimate Rehab’s Motion, Plaintiff simultaneously filed a First Amended 

Complaint (Doc. 11) (“Amended Complaint”) and a Memorandum in Opposition to Ultimate 

Rehab’s Motion (Doc. 12) (“Response”). In her Amended Complaint, Plaintiff continues to pursue 

claims against Ultimate Rehab for denying her access to its public accommodation in violation of 

Title III of the ADA and for employment discrimination in violation of the OCRA. (Amended 

Complaint, ¶¶81-86, 94-100). She has, however, abandoned her claim for employment 

discrimination in violation of Title I of the ADA and has added a claim asserting that Ultimate 

Rehab denied her access to its public accommodation in violation of the OCRA. (Amended 

Complaint, ¶¶87-93). 

 Although the Complaint did not include a claim relating to the public accommodation 

provisions of the OCRA, it did include a claim relating to the public accommodation provisions of 

the ADA, and Ultimate Rehab’s Motion outlined the reasons that such a claim must be dismissed. 

(Complaint, ¶¶86-91; Motion, pp. 5-7). As Plaintiff correctly notes, the OCRA’s public 

accommodation provision is substantively similar to that of the ADA and is to be interpreted in 

accordance with the ADA. Esparza v. Pierre Foods, 923 F.Supp. 2d 1099, 1103 (S.D. Ohio 2013); 

Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St. 3d 569, 573 (1998); Plumbers & Steamfitters 

v. Ohio Civil Rights Comm., 66 Ohio St.2d 192, 196 (1981). For this reason, Plaintiff’s Response 

includes briefing relating to her claim that Ultimate Rehab denied her access to its public 

accommodation in violation of the OCRA. (Response, pp. 3-7). 

 For the convenience of the Court, to avoid repetitive pleadings, and in the interest of judicial 

economy, Ultimate Rehab requests that its Motion be treated as a motion to dismiss all claims 

against it as set forth in the Amended Complaint and that the bases set forth for its request that 

Plaintiff’s ADA Title III claim be dismissed be considered with regard to the OCRA public 

accommodation claim made by Plaintiff in her Amended Complaint. 

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III. ARGUMENT 

 A. Plaintiff Cannot Be Both an Employee of Ultimate Rehab and an Individual 

Entitled to Public Accommodation by Ultimate Rehab. 

In her Response, Plaintiff continues to maintain that Ultimate Rehab denied her an 

accommodation to which she was entitled, both as an employee of Ultimate Rehab and as a member 

of the public. However, Plaintiff was either an employee or a member of the public or, as Ultimate 

Rehab argues, neither. She cannot, as a matter of law, be both. See Bauer v. Muscular Dystrophy 

Ass’n, 268 F. Supp. 2d 1281, 1293 (D. Kan. 2003); Menkowitz v. Pottstown Mem’l Med. Ctr., 154 

F.3d 113, 122 (3rd Cir. 1998) (“Title III was not intended to govern disability discrimination in the 

context of employment”); Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3rd Cir. 1998) 

(“Terms and conditions of employment are covered under Title I, not Title III. . . . Therefore, [the 

plaintiff] cannot state a claim against her employer . . . pursuant to Title III.”). The fact that 

Plaintiff, herself, cannot focus her claims on either the public accommodation or the employment 

provisions of the ADA and OCRA further supports Ultimate Rehab’s argument that none of 

Plaintiff’s claims has any basis in law. 

B. Plaintiff Has Not Stated Claims Against Ultimate Rehab Under Title III of the 

ADA or the OCRA for Failure to Provide Her With Public Accommodation. 

In support of her claims under Title III of the ADA and under the OCRA that she was 

denied a public accommodation by Ultimate Rehab, Plaintiff cites to three cases that are 

inapplicable to the instant matter1

. (Response, pp. 4-5). Indeed, she ignores the common sense 

reality that Ultimate Rehab is not in the business of providing students with internship 

opportunities. There is no reasonable interpretation of Title III of the ADA or of the OCRA that 

covers an unpaid student internship at Ultimate Rehab as a public accommodation. 

 

1

 Ultimate Rehab has been unable to find any case in which Title III of the ADA, the OCRA, or any other public 

accommodation law has been applied to an unpaid student intern. Based on the lack of relevant case citation in 

Plaintiff’s Response, it would seem that Plaintiff would agree there are no such cases. The absence of relevant cases 

strongly suggests that an unpaid student internship is not a public accommodation. 

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 After asserting that statutory language cited by Ultimate Rehab in its Motion “does not have 

any bearing upon what the ADA requires as a general matter,” Plaintiff suggests that the Supreme 

Court decided this issue in PGA Tour v. Martin, 532 U.S. 661 (2001). (Response, p. 4). In fact, the 

language of the Court to which she refers is not even dicta. Rather, it is a description of the 

arguments made by the parties in that case. (Response, p. 4). In fact, the Court gives no guidance 

whatsoever on this argument, noting that “[w]e need not decide whether [the PGA]’s construction 

of the statute is correct, because [the PGA]’s argument falters even on its own terms.” Martin, 532 

U.S. at 679. Even if the public accommodation requirements of Title III of the ADA and the OCRA 

are limited to “clients or customers” as the PGA (and Ultimate Rehab) contended, the majority of 

the Court found, the golfer was a client or customer of the PGA2. Id. at 679-80. 

 Notably, Justice Scalia did come to a conclusion regarding the statutory language at issue in 

the decision’s dissent. Justice Scalia succinctly concluded that “Title III applies only to customers.” 

Id. at 695. Other courts have applied Justice Scalia’s reasoning in concluding that volunteer 

counselors at a camp and a physician with privileges at a hospital were not customers and were, 

therefore, not entitled to the protections of Title III. See Bauer v. Muscular Dystrophy Assoc., Inc., 

268 F.Supp. 2d 1281, 1292 (D. Kan. 2003); Wojewski v. Rapid City Regional Hosp., Inc., 394 

F.Supp. 2d 1134 (D. S.D. 2005). 

 Plaintiff correctly asserts that there are cases in which physicians with staff privileges at 

hospitals have been found to be protected by Title III. See Badri v. Huron Hosp., No. 

1:08CV01913, 2009 WL 10689494 (N.D. Ohio Aug. 14, 2009); Menkowitz v. Pottstown Mem. Med. 

Ctr., 154 F.3d 113 (3d Cir. 1998). However, there are also many examples of cases finding the 

opposite. See, e.g., Wojewski. Regardless, however, Plaintiff fails to explain how a physician with 

staff privileges at a hospital is analogous to an unpaid student intern. Hospitals are in the business of 

 

2

 A golfer playing in the U.S. Open cannot reasonably be compared to an unpaid student intern. 

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5 

providing medical services to patients, and hospitals need independent contractor physicians to 

provide such services, so hospitals are necessarily in the business of providing staff privileges to 

physicians. While Ultimate Rehab is also in the business of providing medical services to patients, 

Ultimate Rehab does not need unpaid student interns to provide such services, and Ultimate Rehab 

is not in the business of providing unpaid internships to students. 

 The holding in Menkowitz is narrow: “We therefore hold that a medical doctor with staff 

privileges – one who is not an employee for purposes of Title I – may assert a cause of action under 

Title III of the ADA . . . .” Menkowitz, 154 F.3d at 122. The court cites three “observations” 

supporting its conclusion. First, the court notes that, absent recourse under Title III, the plaintiff in 

that case would have had no legal recourse at all. This factor is not present in the instant case, as 

there is no dispute that Plaintiff’s claims against the University, which is the entity that made the 

decision to release Plaintiff from its Occupational Therapy Weekend College Program3

, may 

proceed4

. Second, the court notes that failing to permit a Title III claim would result in an 

unacceptable inconsistency between the ADA and the Rehabilitation Act, 29 U.S.C. § 794, et seq. 

Again, this factor is not present in the instant case5. Finally, the court notes that the administrative 

guidance issued by the Justice Department interprets Title III to allow a cause of action for 

 

3

 Ultimate Rehab notes that it has been brought into this litigation merely because it happened to be the second Level II 

field placement at which Plaintiff was unsuccessful and because the University has a policy that two failed Level II field 

placements result in removal from its Occupational Therapy Weekend College Program. (Amended Complaint, ¶¶ 34, 

35, 56). Plaintiff specifically alleges that she failed a prior field placement because her “disability was not 

accommodated” (Amended Complaint, ¶34), yet that health care provider is not a defendant in this matter. Again, the 

University established the two-strikes policy, the University concluded that Plaintiff violated that policy, and the 

University made the decision to remove Plaintiff from its Occupational Therapy Weekend College Program. (Amended 

Complaint, ¶¶35, 56). It is manifestly unfair to hold Ultimate Rehab liable for Plaintiff’s dismissal from the 

Occupational Therapy Weekend College Program based on a policy established and invoked by the University, 

particularly when it is alleged to be liable merely because Ultimate Rehab had the misfortune of being the second Level 

II field placement from which she was dismissed. 

4

 The University filed an Answer (Doc. 14) to Plaintiff’s Amended Complaint and not a motion to dismiss. 

5

 The Rehabilitation Act is inapplicable to Ultimate Rehab, which does not receive federal funding. Plaintiff alleges that 

the University receives federal funding, and claims under both the Rehabilitation Act and Title III of the ADA are 

proceeding against the University. (Amended Complaint, ¶¶59-72). 

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physicians with staff privileges. The administrative guidance provides no such direction with regard 

to unpaid student interns. 

 Plaintiff maintains that she has fulfilled her obligations under Twombly because she has 

“pleaded that Ultimate Rehab discriminated against her on the basis of her disability in the full and 

equal enjoyment of that place of public accommodation.” (Response, p. 7). But Plaintiff was not a 

patient or customer of Ultimate Rehab. She is wholly unable to allege that she was denied an 

“opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or 

accommodation that is . . . equal to that afforded to other individuals,” as is required to state a claim 

under Title III of the ADA or the public accommodation provision of the OCRA. 28 C.F.R. ¶ 

36.202(b); see also ADA Title III Technical Assistance Manual § III-3.1000 (“The phrase ‘goods, 

services, facilities, privileges, advantages, or accommodations’ applies to whatever type of good or 

service a public accommodation provides to its customers or clients.”). 

 As a result, there is no viable legal theory under which she may be successful on her ADA 

and OCRA claims. She is unable to comply with the Twombly standard under Rule 8(a) and her 

public accommodation claims should be dismissed under Rule 12(b)(6). 

C. Plaintiff Has Not Stated a Claim Against Ultimate Rehab for Disability 

Discrimination in Employment. 

Plaintiff acknowledges that Ultimate Rehab was not her employer, yet she continues to 

pursue a claim for employment discrimination because she claims that Ultimate Rehab “has the 

ability to affect [her] employment opportunities with third parties.” (Response, p. 8). However, 

Plaintiff fails to describe how Ultimate Rehab had the ability to impact her employment 

opportunities. Any impact was tenuous, at best. The University – not Ultimate Rehab – established 

its requirements for completion of its Occupational Therapy Weekend College Program. (Amended 

Complaint, ¶¶ 18, 20). The University – not Ultimate Rehab – established a policy that two failed 

field placements would result in dismissal from the Occupational Therapy Weekend College 

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Program. (Amended Complaint, ¶35). Ultimate Rehab was only one of two failed field placements, 

and it just happened to be the second failed placement. (Amended Complaint, ¶¶ 29, 34, 38). The 

University – not Ultimate Rehab – made the decision to invoke its two-strikes policy. (Amended 

Complaint, ¶56). While the lack of an occupational therapy degree would almost certainly impact 

Plaintiff’s ability to become employed as an occupational therapist, to suggest that Ultimate Rehab 

was responsible for her failure to be awarded such a degree and that Ultimate Rehab is therefore 

liable for discrimination because it controlled her employment opportunities grossly distorts reality. 

 Ultimate Rehab cites numerous cases in its Motion in which unpaid student interns were 

found to be ineligible for the protections of employment discrimination statutes. (Motion, p. 7). 

Plaintiff makes no effort to distinguish them from her situation and, instead, ignores them 

altogether. She once again cites to cases in which the plaintiffs had hospital staff privileges6

. 

(Response, pp. 9-10). As described supra, hospital staff privileges and an unpaid student internship 

are not analogous. In Christopher v. Stouder Memorial Hospital, 936 F.2d 870 (6th Cir. 1991), for 

example, the plaintiff had been working as a private scrub nurse at the defendant’s hospital. 

Although the plaintiff was not paid by the hospital, the hospital nevertheless informed her that her 

services as a clinical nurse specialist would no longer be needed and refused to reinstate her staff 

privileges. Id., at 872-74. As a practical matter, the court found, the hospital terminated her 

employment. Id. at 874 (“we find that [the hospital]’s control over [the plaintiff]’s ability to practice 

as a private scrub nurse sufficiently impacted her employment opportunities”). In other words, 

unlike in the instant case, there was a direct nexus between the hospital’s actions and the plaintiff’s 

employment. No such nexus exists here. 

 

6

 Plaintiff also cites to Charlton v. Paramus Bd. of Educ., 25 F.3d 194 (3d Cir. 1994), which addresses whether a former 

employee may state a claim for post-termination retaliation. The plaintiff accused her former employer of triggering 

proceedings to revoke her teaching certificate in retaliation for her pursuit of an employment discrimination claim. 

Again, it grossly distorts reality to suggest that Ultimate Rehab’s dismissal of Plaintiff from an unpaid student 

internship is analogous to retaliation relating to and arising out of an employment relationship. 

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In LeMasters v. Christ Hosp., 777 F.Supp. 1378 (S.D. Ohio 1991), a physician whose 

hospital staff privileges were terminated was found to be an employee for purposes of employment 

discrimination law because the hospital “control[led her] access to employment opportunities.” Id.

at 1380. The LeMasters court suggests that the type of entities that have the requisite control are 

labor organizations, employment agencies, and employers. Id. at 1379; see also Zaklama v. Mt. 

Sinai Med. Ctr., 842 F.2d 291, 294 (11th Cir. 1988). Ultimate Rehab did not even control whether 

Plaintiff remained enrolled in the University’s Occupational Therapy Weekend College Program, 

nevertheless whether she was awarded an occupational therapy degree. And it certainly did not 

control whether she would become employed as an occupational therapist. 

 In her Amended Complaint, Plaintiff does not allege that Ultimate Rehab was her employer 

because it was not. Instead, she alleges that her failed unpaid student internship at Ultimate Rehab 

“prohibited her from working as an occupational therapist.” (Amended Complaint, ¶98). But even 

Plaintiff’s own recitation of the facts makes it clear that it was the University – and not Ultimate 

Rehab – that controlled whether she was awarded an occupational therapy degree. (Amended 

Complaint, ¶¶35, 56). Ultimate Rehab made the discrete decision to end Plaintiff’s unpaid student 

internship because of her violation of its safety procedures. (Amended Complaint, ¶55). Plaintiff 

cannot reasonably allege any set of facts under which this discrete decision controlled her access to 

employment opportunities. 

 Plaintiff is unable to provide the required factual basis for her legal conclusion that Ultimate 

Rehab prevented her from working in her chosen field. She is unable to comply with the Twombly

standard under Rule 8(a) and her employment discrimination claim brought under the OCRA should 

be dismissed under Rule 12(b)(6). 

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IV. CONCLUSION 

 For the foregoing reasons, as well as the reasons set forth in Ultimate Rehab’s Motion, this 

Court should dismiss all of Plaintiff’s claims against Ultimate Rehab. 

Respectfully submitted, 

/s/ David T. Croall 

David T. Croall (0009149) 

Rachel E. Burke (0066863) 

PORTER WRIGHT MORRIS & ARTHUR LLP

250 E. Fifth St., Suite 2200 

Cincinnati, Ohio 45202 

Phone: (513) 381-4700 

Fax: (513) 421-0991 

dcroall@porterwright.com

rburke@porterwright.com

Attorneys for Defendant Ultimate Rehab, Ltd.

 

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CERTIFICATE OF SERVICE

 I hereby certify that a copy of the foregoing Defendant Ultimate Rehab, Ltd.’s Consolidated 

Motion to Dismiss First Amended Complaint and Reply in Support of Motion to Dismiss was filed 

electronically on this 25th day of January, 2018. Notice of this filing will be sent by operation of the 

Court’s electronic filing system to the following: 

Erin M. Heidrich 

Elizabeth Asbury Newman 

Freking Myers & Reul LLC 

600 Vine Street, Ninth Floor 

Cincinnati, Ohio 45202 

eheidrich@fmr.com 

enewman@fmr.com 

Attorney for Plaintiff Nicole Christ 

Heidi N. Eischen 

Emilie K. Vassar 

Eastman & Smith 

One Seagate, 24th Floor 

Toledo, OH 43604 

hneischen@eastmansmith.com

ekvassar@eastmansmith.com

Attorneys for Defendant University of Findlay 

/s/ David T. Croall 

DMS/10787846v.1 

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