UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DR. LARRY MORRIS, 

 Plaintiff, 

v. 

MARY RUTAN HOSPITAL, 

 Defendant. 

Case No. 2:18-cv-543 

JUDGE GEORGE C. SMITH 

Magistrate Judge Deavers 

OPINION AND ORDER 

This matter is before the Court upon Defendant Mary Rutan Hospital’s Motion to Dismiss 

Counts III, IV, VI, and VII of Plaintiff’s Second Amended Complaint (“MRH’s Partial Motion to 

Dismiss”) (Doc. 20). Plaintiff Dr. Larry Morris filed a Response in Opposition (Doc. 22). MRH 

has not filed a reply brief and the time to do so has now expired. For the following reasons, MRH’s 

Partial Motion to Dismiss is GRANTED. 

I. BACKGROUND 

As set forth in his Second Amended Complaint (Doc. 19), Morris alleges that he was 

employed by MRH as a general surgeon beginning in August 2009. (Id. ¶¶ 14–15). At some point, 

Morris entered into an employment agreement with MRH, effective beginning April 1, 2017, for 

an initial term of one year, subject to additional one-year renewal terms unless either party elected 

to provide notice of termination. (Id. ¶ 14; Doc. 12-3, Employment Agreement § 4.1). Morris 

provided surgical services for MRH without incident until, prior to the effective date of the 
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employment agreement, Morris “experienced an adverse outcome” with a patient in March 2017. 

(Doc. 19, 2d Am. Compl., ¶¶ 19–21). 

Following this adverse outcome, MRH informed Morris that he would have to complete a 

neuropsychological evaluation, a physical examination, and a course on medical record 

documentation before he would be permitted to see any additional patients or practice surgery. 

(Id. ¶¶ 22–23). MRH also stated that Morris would either have to permanently discontinue all 

colon surgeries or have a proctor present with him for at least 10 lower bowel surgeries. (Id. ¶ 33). 

MRH further stated that Morris would be placed on a six-month probationary period. (Id. ¶ 34). 

Morris alleges that MRH “targeted [him] and took adverse employment action against him 

because of his age and because [MRH] perceived [him] to be disabled.” (Id. ¶ 37). Specifically, 

Morris contends that “[MRH] required [Morris] to complete a neuropsychological evaluation 

because [MRH] mistakenly believed [Morris] had a neuropsychological disorder” and “perceived 

[Morris] to be unable to perform the essential functions of his position because of such perceived 

disorder.” (Id. ¶¶ 27, 49). Morris also alleges MRH instructed him to submit to a 

neuropsychological evaluation and a physical examination, “without any explanation or reason 

provided.” (Id. ¶¶ 38–39). 

Finally, Morris alleges that MRH constructively terminated his employment by prohibiting 

Morris from seeing any more patients or performing more surgeries. (Id. ¶ 44). MRH also 

allegedly terminated Morris’s employment by falsely claiming that Morris and MRH had mutually 

agreed to terminate the employment agreement pursuant to § 4.2(a) of the agreement, when Morris 

had not signed a written agreement consenting to termination as required by § 4.2(a). (Id. ¶¶ 45–

46). 
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Morris submitted a charge of discrimination based on age and perceived disability to the 

Equal Employment Opportunity Commission (“EEOC”) on August 28, 2017. On March 20, 2018, 

Morris was issued a Notice of Right to Sue stating that the EEOC was terminating its processing 

of Morris’s charge. (Doc. 12-2, Notice of Right to Sue). Morris timely commenced this action on 

June 4, 2018. (Doc. 1, Compl.). His Second Amended Complaint contains seven counts: age 

discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.

(“ADEA”) (Count I); breach of contract (Count II); perceived disability discrimination under the 

Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”) (Count III); perceived 

disability discrimination under Ohio Revised Code § 4112.02 (Count IV); requiring that Morris 

undergo unlawful medical examinations in violation of the ADA (Count V); retaliation for 

engaging in activity protected by the ADA (Count VI); and retaliation for engaging in activity 

protected by Ohio Revised Code Chapter 4112 (Count VII). 

In the present motion, MRH has moved to dismiss Morris’s claims for perceived disability 

discrimination and retaliation in Counts III, IV, VI, and VII. (Doc. 20). MRH does not challenge 

the remaining claims. 

II. STANDARD OF REVIEW 

MRH brings this motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, 

alleging that Plaintiffs have failed to state a claim upon which relief can be granted. 

Under the Federal Rules, any pleading that states a claim for relief must contain a “short 

and plain statement of the claim” showing that the pleader is entitled to such relief. Fed. R. Civ. 

P. 8(a)(2). To meet this standard, a party must allege sufficient facts to state a claim that is 

“plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim will be 

considered “plausible on its face” when a plaintiff sets forth “factual content that allows the court 
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to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009). 

Rule 12(b)(6) allows parties to challenge the sufficiency of a complaint under the foregoing 

standards. In considering whether a complaint fails to state a claim upon which relief can be 

granted, the Court must “construe the complaint in the light most favorable to the plaintiff, accept 

its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio Police & 

Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012) 

(quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet that a 

court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause 

of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. Thus, 

while a court is to afford plaintiff every inference, the pleading must still contain facts sufficient 

to “provide a plausible basis for the claims in the complaint”; a recitation of facts intimating the 

“mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz-Craft Corp of Mich., 

Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679. 

III. ANALYSIS 

Morris brings his perceived disability and retaliation claims under both the ADA and Ohio 

Revised Code § 4112.02. Courts have consistently held that Ohio’s disability discrimination law 

“entails the same legal analysis as that under the ADA.” Rosebrough v. Buckeye Valley High Sch., 

690 F.3d 427, 431 (6th Cir. 2012). Courts therefore “apply the same analytical framework, using 

cases and regulations interpreting the ADA as guidance” in interpreting the disability-related 

provisions of Chapter 4112. Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) 

(citing Wysong v. Dow Chemical Co., 503 F.3d 441, 450 (6th Cir. 2007) and City of Columbus 

Civil Serv. Comm’n v. McGlone, 697 N.E.2d 204, 206–07 (Ohio 1998)). As a result, although the 
5 

analysis below focuses on Morris’s ADA claims, the results apply equally to Morris’s claims under 

Chapter 4112. Daugherty, 544 F.3d at 702. 

A. Perceived disability discrimination 

In order to state a claim for disability discrimination under the ADA, Morris must allege 

that he is “disabled.” Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 

2008). An individual is considered disabled under the ADA if he has (1) a physical or mental 

impairment that substantially limits one or more major life activities; (2) a record of such 

impairment; or (3) is regarded as having such an impairment. Id.; 42 U.S.C. § 12102(1). Morris 

alleges that he qualifies as disabled because MRH mistakenly believed that Morris had a 

neuropsychological disorder. (Doc. 19, 2d Am. Compl. ¶¶ 27, 71, 78). 

MRH argues that, to state a claim for perceived disability discrimination (also referred to 

as a “regarded-as-disabled” claim), Morris must allege facts sufficient to demonstrate one of the 

following: 

(1) That the defendant-employer mistakenly believed that the plaintiff had a physical 

impairment that substantially limited one or more major life activities; or 

(2) That the defendant-employer mistakenly believed that the plaintiff had an actual, 

nonlimiting impairment that substantially limited one or more major life activities. 

(Doc. 20-1, Mot. at 3, citing Moore v. Baptist Mem’l Health Care Sys., 398 F.3d 469, 479 (6th Cir. 

2005) and Columbus Civil Serv. Comm. v. McGlone, 82 Ohio St.3d 569 (1998)). However, the 

case law that MRH relies on for this requirement pre-dates the 2008 amendments to the ADA that 

reduced the burden on plaintiffs to establish disability in regarded-as-disabled claims: 

Before the 2008 Amendments, the Supreme Court interpreted the ADA to consider 

a person disabled under the third prong only if a covered entity mistakenly believed 

that the individual had a physical impairment that was substantially limiting, or 

mistakenly believed that an actual, nonlimiting impairment was substantially 

limiting. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 

L.Ed.2d 450 (1999), overturned by U.S. Pub. L. 110–325 (2009). In passing the 

2008 Amendments, Congress liberalized the standard, redefining “regarded as 
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having an impairment” only to require that a defendant took a prohibited action 

based on a perceived impairment, regardless of whether the employer thought the 

impairment was substantially limiting. 42 U.S.C. § 12102(3)(A). 

Neely v. Benchmark Family Servs., 640 F. App’x 429, 435–36 (6th Cir. 2016) (emphasis added). 

Thus, although Morris did allege that MRH “regarded [Morris] as a disabled individual by 

mistakenly believing that [Morris] had a neuropsychological disorder that substantially limited his 

ability to work” (Doc. 19, 2d Am. Compl. ¶¶ 71, 78), Morris need not factually support the 

allegation that he was regarded as being substantially limited to state a regarded-as-disabled claim. 

However, Morris must still allege facts sufficient to raise a plausible inference that MRH 

regarded him as having an impairment, even if the perceived impairment is not severe enough to 

substantially limit a major life activity. The only pertinent alleged fact is that MRH required 

Morris to undergo a neuropsychological evaluation. (Id. ¶¶ 23–24). Morris contends this fact 

alone is sufficient to establish that MRH regarded him as disabled. (See Doc. 22, Resp. at 6–7) 

(“The only reason Defendant would suddenly require reports of Plaintiff’s various medical 

evaluations would be to determine the extent of a perceived medical condition or disability.”). 

Morris’s conclusion is not warranted by the alleged facts. The Sixth Circuit has held that 

an employer’s request that an employee to undergo a medical or psychological evaluation is not 

sufficient to establish that the employer regarded the employee as disabled. Sullivan v. River 

Valley Sch. Dist., 197 F.3d 804, 810 (6th Cir. 1999); Krueger v. Home Depot USA, Inc., 674 F. 

App’x 490, 494 (6th Cir. 2017) (“Asking him to undergo a psychological evaluation is not enough 

to suggest that Home Depot regarded Krueger as mentally disabled.”). “Given that an employer 

needs to be able to determine the cause of an employee’s aberrant behavior, this is not enough to 

suggest that the employee is regarded as mentally disabled. As the district court ably explained, a 

defendant employer’s perception that health problems are adversely affecting an employee’s job 

performance is not tantamount to regarding that employee as disabled.” Sullivan, 197 F.3d at 810. 
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Under Sullivan and Krueger, the request cannot by itself establish that MRH regarded 

Morris as disabled, and Morris has alleged no other facts to support MRH’s perception of him as 

disabled. Morris’s claims for perceived disability in Counts III and IV must therefore be 

dismissed. 

B. Retaliation 

The ADA also prohibits discrimination “against any individual because such individual 

has opposed any act or practice made unlawful by this chapter . . . .” 42 U.S.C. § 12203(a). A 

prima facie case of retaliation requires a showing that (1) the plaintiff engaged in activity protected 

under the ADA; (2) the employer knew of that activity; (3) the employer took an adverse action 

against plaintiff; and (4) there was a causal connection between the protected activity and the 

adverse action. Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014). 

These elements are derived from the burden-shifting framework of McDonnell Douglas 

Corp. v. Green that a plaintiff may use to offer circumstantial evidence of discrimination in the 

absence of direct evidence. 411 U.S. 792 (1973). However, the Supreme Court has made it clear 

that a plaintiff need not plead all the elements of the McDonnell Douglas prima facie case in order 

to survive a motion to dismiss. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002) (“The 

prima facie case under McDonnell Douglas, however, is an evidentiary standard, not a pleading 

requirement.”). Rather, “so long as a complaint provides an adequate factual basis for [an ADA] 

claim, it satisfies the pleading requirements of Federal Rule of Civil Procedure 8(a)(2).” Serrano 

v. Cintas Corp., 699 F.3d 884, 897 (6th Cir. 2012). Moreover, Swierkiewicz remains good law 

after the Supreme Court’s decisions in Twombly and Iqbal. Keys v. Humana, Inc., 684 F.3d 605, 

609 (6th Cir. 2012). 

MRH argues that the Second Amended Complaint lacks allegations that Morris “opposed” 

any relevant act or practice, and therefore he has not alleged that he engaged in activity protected 
8 

by the ADA. Morris disagrees, stating that he alleged in Count V that MRH required him to 

undergo physical and neuropsychological testing that were not job-related or consistent with 

business necessity, which is itself a violation of the ADA, and MRH does not challenge Count V 

in the present motion. See 42 U.S.C. § 12112(d)(4)(A). Morris further argues that the retaliation 

counts “allege that [MRH] retaliated against [Morris] for refusing to submit to the unlawful 

medical examinations.” (Doc. 22, Resp. at 9). The problem with this argument is that there are 

no factual allegations in the Second Amended Complaint that Morris refused to undergo the testing 

requested by MRH. There is one lone statement, repeated in each of Counts VI and VII, that 

“[Morris] engaged in protected activity when he opposed the unlawful medical exam(s) and 

report(s) ordered by [MRH].” (Doc. 19, 2d Am. Compl. ¶¶ 92, 99). But this statement merely 

recites an element of the retaliation claim; it does not provide any factual allegations to support his 

alleged opposition. 

Morris further argues that he “need not allege any additional facts” because he “simply 

cannot allege detailed facts in order to establish an inaction.” (Doc. 22, Resp. at 9). This is not 

so; if Morris “refused” to submit to the examinations as he states in his opposition brief, Morris 

should be able to describe that refusal with factual allegations. For instance, Morris might have 

told representatives of MRH verbally or in writing that he would not comply with the 

examinations, or Morris might have failed to appear at or cooperate with a scheduled examination. 

Morris’s bare opposition allegation “gets the [Second Amended Complaint] close to stating 

a claim, but without further factual enhancement it stops short of the line between possibility and 

plausibility.” Twombly, 550 U.S. at 546. If additional facts as to Morris’s opposition exist, there 

is no reason why they could not have been included in his Second Amended Complaint, especially 

after two prior opportunities to amend his allegations. And if additional facts do not exist, then 
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Morris will be unable to demonstrate that he opposed any practice made unlawful by the ADA. 

Therefore, Morris’s retaliation claims in Counts VI and VII are dismissed.1

IV. CONCLUSION 

For the foregoing reasons, MRH’s Motion to Dismiss Counts III, IV, VI, and VII of 

Plaintiff’s Second Amended Complaint is GRANTED. The Clerk shall remove Document 20 

from the Court’s pending motions list. 

IT IS SO ORDERED. 

 /s/ George C. Smith 

GEORGE C. SMITH, JUDGE 

UNITED STATES DISTRICT COURT

 

1

 Because the Court finds Morris has not sufficiently alleged a retaliation claim in the Second Amended Complaint, 

the Court need not and does not resolve MRH’s argument that Morris failed to exhaust administrative remedies with 

respect to his federal retaliation claim.