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Bogart v. University of Kentucky

United States District Court, E.D. Kentucky, Central Division, Lexington

December 5, 2017

ADAM BOGART, Plaintiff,
v.
UNIVERSITY OF KENTUCKY, Defendant.

          MEMORANDUM OPINION & ORDER

          Joseph M. Hood Senior U.S. District Judge

         This 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.

         I.

         The 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. at 5.

         Among 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.[1] 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.

         Upon 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.

         Sometime 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 Tourette Syndrome.

         Perhaps 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.” Id.

         Plaintiff 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.

         There 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; 150-51.

         Plaintiff 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.

         Between 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.

         Ultimately, 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 ...


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