United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
M. Hood Senior U.S. District Judge
matter is before the Court upon Defendant's Motion for
Summary Judgment [DE 35; see also DE 38]. Plaintiff
has filed a Response [DE 38], stating his opposition to the
Motion for Summary Judgment, and Defendant has filed a Reply
[DE 40] in further support of their Motion. This motion is
now ripe for consideration and, for the reasons stated below,
will be granted.
facts before the Court are relatively straightforward. In the
1980s, Plaintiff was diagnosed with Tourette Syndrome and
dystonia, a condition causing weakness and mild motor
deficiency in the hand that developed as a result of a
reaction to a prior medication for the treatment of
Tourette's. Pl. Dep. at 69-70. His symptoms are well
controlled and do not significantly affect his ability to
work. Pl. Dep. at 71-75. Plaintiff's symptoms are so
well-managed that people often do not notice them. Pl. Dep.
at 71-72. One symptom, more than any other, remains even with
effective management of Tourette Syndrome with medication:
his head shakes from left to right in a “no”
motion, once every minute or every few minutes. Bogart Decl.
other degrees, Plaintiff has a Ph.D. in Behavior Neuroscience
from Kent State University. Pl. Dep. 20-21. After obtaining
his doctorate degree, he worked as a post-doctoral fellow in
radiology at the Gruss Magnetic Imaging Center at the Albert
Einstein School of Medicine in the Bronx, a position that he
left when his contract was not renewed. Pl. Dep. at 21-27.
Two years later, in December 2013, Plaintiff applied online
for a research position with Dr. Ai-Ling Lin, who was
transitioning her research from the University of Texas
Health Service Center at San Antonio, in Texas, to the
University of Kentucky. Pl. Dep. at 41-42. Lin joined the
University of Kentucky's Sanders-Brown Center on Aging in
March 2014, and maintains a medical research laboratory
there. Lin Aff at ¶ 2. Thus, after some
initial remote discussions and correspondence, Lin and
Plaintiff met for an interview at the University of Kentucky
in March 2014. Pl. Dep at 48. Lin described her areas of
research and prospective projects to Plaintiff and indicated
scientific topics with which she needed him to be familiar.
Pl. Dep. at 51. He told her that he would need to refresh his
knowledge on a few topics but possessed the skill and
knowledge to perform the job. Pl. Dep. at 51-52, 55-56.
Plaintiff was eventually hired as a Senior Laboratory
Technician in the Sanders-Brown Center for Aging at the
University of Kentucky, where he was one of the first
employees in Lin's new lab. Pl. Dep. at 55.
commencing work at the University in Lin's lab in June
2014, Plaintiff was primarily tasked with conducting
statistical analysis of a set of research data purchased by
Lin for a larger project studying the effects of calorie
restriction on the brains of mice. Pl. Dep. at 56-57.
Plaintiff believed the data was flawed and that using the
data in Lin's research would be improper. Pl. Dep. at
90-91. On one hand, Plaintiff claims that he tried to express
his concerns to Lin but she refused to hear his concerns. Pl.
Dep. at 64. However, he also admits that he discussed these
concerns with her several times over the course of his
employment. Pl. Dep. at 65-68. Plaintiff further testified
that Lin was rude and hostile towards him, as evidenced by
Lin asking Plaintiff whether he was able to understand her
English and whether he had the experience to do certain
tasks. Pl. Dep. at 85-88; Aug. 1, 2014 Email Exchange between
A. Lin and A. Bogart, Ex. 3; Aug. 4, 2014 Email Exchange
between A. Lin and A. Bogart, Ex. 4.
on or just shortly before August 1, 2014, Lin called Bogart
to her office and asked him about the fact that he regularly
shook his head back and forth, asking him whether he had
Parkinson's disease. Bogart Decl. at ¶ 15. He
explained that he did not but that he did have lesions on his
brain. Id. According to Bogart, Lin then became
angry and questioned why he had not told her about the
lesions on his brain during their interview and asked him for
his diagnosis, at which time Bogart disclosed that he has
for this reason, when Plaintiff wrote an email to Lin on
August 1, 2014, he explained that he “ha[s] a slower
learning curve than is usual for what you expect” but
“all of a sudden, I completely ‘get'
it.” [DE 35-5 at 234.] She responded that her
“concern [wa]s not the speed of your learning curve,
but the skills and professionalism you should already have
after your Ph.D. training and so many years of experiences,
e.g., the statistical analysis ability, finding pattern of
and the meaning behind the data. Again, the misplacing
numbers/orders has been considered a serious one.”
was informed by Lin numerous times that his performance was
not meeting expectations. Pl. Dep. 111-15, 127, 135, 139;
Aug. 26, 2014 Oral Warning Notice, Ex. 5; Lin Aff at ¶
5. Specifically, Plaintiff interchanged headings and/or
numbers in lists of data on at least three occasions. Pl.
Dep. at 126-27; Ex. 4. These lists contained data comparing
four different groups of mice with different characteristics
(such as “calorie restricted” and “not
calorie restricted”) to see what effect calorie
restriction had on the brains of mice. Lin Aff. ¶ 6.
Plaintiff mislabeled the data and/or swapped numbers in the
lists at least three separate times. Lin Aff. At ¶ 6.
Lin discovered these mistakes and instructed Plaintiff to
correct them. Lin Aff. at ¶ 6. Plaintiff admits these
mistakes but insists that they were minor and that Lin was
overreacting in reprimanding him. Pl. Dep. at 112-13.
However, Lin clearly indicated to Plaintiff that these
mistakes were serious and must be remedied. Pl. Dep. at 113;
Ex. 3. Indeed, from a scientific standpoint, these mistakes
were quite serious because labeling one set of data as if it
relates to a different group or changing numbers in a data
set completely invalidates the information and makes it
meaningless. Lin Aff. at ¶ 6. According to Lin, to
analyze and interpret data that has been mislabeled or
changed could mislead the scientific community and constitute
research misconduct. Lin Aff. at ¶ 6.
were other issues during Plaintiff's time in Lin's
lab. He worked more than 40 hours a week without approval on
several occasions and attended medical appointments without
properly clocking in and out. Pl. Dep. at 106-07; Ex. 5. As a
full-time non-exempt employee, Plaintiff was informed on
several occasions that he must not work more than 40 hours
per week unless approved by Lin, he may not do work without
pay, and he may not remain clocked in while attending
appointments out of office. Pl. Dep. at 106-07, 141; Ex. 5;
June 26, 2014 Email Exchange between A. Bogart, A. Lin, V.
Bakshi, B. Baesler, and M. Waechter, Ex. 6; Aug. 23, 2014
Email Exchange between A. Lin and A. Bogart, Ex. 7. Plaintiff
admits he made these mistakes clocking in and out. Pl. Dep.
at 141. Additionally, Plaintiff was found to have been
sleeping in the lab, socially chatting during work hours, and
communicating with a sales representative in a manner outside
his job description. Ex. 5. Additionally, Plaintiff was not
timely completing the tasks assigned to him even after
extensions were granted. Id. Plaintiff admits to
these performance issues but asserts that they were either so
minor as to be unimportant, things that he could not even
recall, or that his problems with completing tasks were
justified because of the flaws that he perceived were present
in the data he was tasked with analyzing. Pl. Dep. at 97-98;
met with Lin, Beverley Baesler, Sanders-Brown Center
Administrator II, and Mary Fern Waechter, Sanders-Brown
Center Administrator III, to address these performance issues
on August 26, 2014. Pl. Dep. at 140-41. Plaintiff was
informed of areas in which he needed to improve and it was
expected that they would meet again to follow up on his
progress. Pl. Dep. 157-58; Ex. 5. This meeting was designated
an Oral Warning and Plaintiff was given a letter summarizing
the information covered. Ex. 5. Plaintiff was instructed that
a follow up meeting would be scheduled after September 2,
2014 to assess his level of improvement toward satisfactory
performance. Pl. Dep. at 158. At that meeting, Bogart
attempted to explain the problems that he had found with the
data and why that was preventing him from completing the work
in the way that Lin expected, but he was cut off by the
administrators in the meeting who said they “didn't
understand science.” Bogart Decl. at 22.
August 26 and September 4, 2014, Lin observed that Plaintiff
showed no improvement towards satisfactory performance. Lin
Aff. at ¶ 8. Furthermore, during this period, Plaintiff
ignored specific instructions Lin gave him and failed to
complete tasks he was assigned with no explanation for
either. Lin Aff. at ¶ 8. Additionally, Plaintiff was
rude and insubordinate toward Lin by ignoring her when she
spoke to him and speaking to her in a rude and derogatory
manner. Lin Aff. at ¶ 8. Of course, Bogart claims that
his behavior toward Lin was never intended to be rude or
insubordinate but that she became angry and raised her voice
at him if Bogart's results did not meet her expectations
or if he made minor errors. Bogart Decl. at 20.
on September 4, 2014, Plaintiff was separated from employment
from the University. Pl. Dep. at 98. At the time of
termination, Plaintiff was still in his initial probationary
phase of employment. Pl. Dep. at 99. After his separation
from employment with the University, Plaintiff made a
complaint with the University's Office of Institutional
Equity and Equal Opportunity (“OIEEO”) claiming
“wrongful termination due to discrimination
(Tourette's Disorder)”. Pl. Dep at 167; Sep. 5,
2014 Email Exchange between A. Bogart and P. Bender, Ex. 8.
Patty Bender, Assistant Vice President for Equal Opportunity
responded to Plaintiff's complaint. Pl. Dep at 167; Ex.
8. Bender requested that Plaintiff provide to her any
information or documentation he had to support his complaint.
Pl. Dep. at 170. Plaintiff eventually provided Bender a
series of emails culminating in a 97 page
“report” detailing Plaintiff's complaints
regarding his separation from employment and concerns
regarding the data he was tasked with analyzing. Ex. 8; Sep.
10, 2014, 3:05pm Email Exchange between A. Bogart and P.
Bender, Ex. 9; Sep. 10, 2014, 8:28pm Email between A. Bogart
and P. Bender, Ex. 10; Sep. 12, 2014, 9:35pm Email Exchange
between A. Bogart and P. Bender, Ex. 11; Sep. 12, 2014,
10:26pm Email Exchange between A. Bogart and P. Bender, Ex.
12; Sep. 14, 2014 Email Exchange between A. Bogart and P.
Bender, Ex. 13; Sep. 17, 2014 Email Exchange between ...