Kulick v. Ethicon Endo-Surgery, Inc.
803 F. Supp. 2d 781
| S.D. Ohio | 2011Background
- Plaintiff Roy Kulick started as clinical research director at Ethicon-Endo Surgery, Inc. in June 2006.
- Defendants allege Kulick courted conflict, hostile emails, and insubordination leading to reassignment and coaching.
- A coworker raised a safety concern; Kulick was placed on paid leave and required to undergo a fitness-for-duty evaluation.
- Medical evaluation cleared Kulick to return, but he allegedly continued to defy supervisor instructions and was terminated for insubordination and poor performance.
- Kulick contends his role required challenging colleagues, and he had generally positive relations with most staff, including strong praise from supervisors.
- Kulick also contends his termination followed his consultation with counsel regarding being placed on leave and subjected to evaluation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disability discrimination prima facie | Kulick is regarded as disabled; long leave after evaluation was adverse. | Leave for evaluation and termination for insubordination is legitimate, not due to disability. | Plaintiff can establish prima facie disability-discrimination; triable issue on pretext remains. |
| Retaliation for protected activity | Termination followed protected activity, including attorney consultation. | Termination was based on insubordination and performance; no causal link shown. | Prima facie retaliation shown; causation and pretext issues for trial. |
| Public policy - termination for consulting an attorney | Firing for attorney consultation violates Ohio public policy. | Public policy claim overlapped with retaliation; insufficient to survive summary judgment. | Genuine issues of material fact as to public policy claim; not dismissed at summary judgment. |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (Supreme Court, 1973) (establishes framework for proving pretext in discrimination cases)
- Celotex Corp. v. Catrett, 477 U.S. 317 (Supreme Court, 1986) (burden on movant to show absence of genuine issue of material fact)
- Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001) (whether employer regarded employee as disabled is state-of-mind inquiry)
- DiCarlo v. Potter, 358 F.3d 408 (6th Cir. 2004) (temporal proximity may show causation in retaliation cases)
- Nguyen v. City of Cleveland, 229 F.3d 559 (6th Cir. 2000) (causation can be inferred from close temporal proximity)
- Peltier v. United States, 388 F.3d 984 (8th Cir. 2004) (suspension with pay can be adverse action depending on circumstances)
- Brown v. Cox, 286 F.3d 1040 (8th Cir. 2002) (adverse action can occur without pay reduction)
- Mickens v. Polk County School Board, 430 F. Supp. 2d 1265 (M.D. Fla. 2006) (emotional volatility or impairment may be treated as disability at issue)