Williams v. Merle Pharmacy Inc et al

Filing 48

ORDER and OPINION entered by Judge Joe Billy McDade on 6/29/2016. For the reasons stated above, Defendant's the Motion for Partial SummaryJudgment 43 is TEMPORARILY STAYED and Plaintiff's Rule 56(d) Motionto Defer Defendants' Motion for Partial Summary Judgment Pending Completion of Discovery 46 is DENIED in part and GRANTED in part. Parties must submit a limited and expedited written discovery plan conforming to the directives of this Opinion and Order on or before July 13, 2016. See full written Order.(VH, ilcd)

E-FILED

Wednesday, 29 June, 2016 09:58:36 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
RHONDA S. WILLIAMS,
Plaintiff,
v.
MERLE PHARMACY, INC., CENTRAL
ILLINOIS MEDICAL EQUIPMENT,
INC., AND WILLIAM M. MARTIN,
Defendants.

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Case No. 15-cv-1262

ORDER & OPINION
This matter is before the Court on Plaintiff’s Rule 56(d) Motion to Defer
Defendants’ Motion for Partial Summary Judgment Pending Completion of
Discovery (Doc. 46) made in Response to Defendants’ Motion for Partial Summary
Judgment (Doc. 43). For the reasons stated below the Motion for Partial Summary
Judgment (Doc. 43) is TEMPORARILY STAYED and Plaintiff’s Rule 56(d) Motion
to Defer Defendants’ Motion for Partial Summary Judgment Pending Completion of
Discovery (Doc. 46) is DENIED in part and GRANTED in part.
INTRODUCTION & PROCEDURAL HISTORY
This retaliatory discharge and wage action commenced on June 26, 2015. (See
Doc. 1). On October 22, 2015, the parties appeared before the Court for a Rule 16
scheduling conference wherein Magistrate Judge Jonathan E. Hawley entered a
schedule allowing discovery until April 30, 2017 and a dispositive motion deadline
of May 30, 2017. These dates were proposed by the parties who presumably met and
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conferred and agreed to the dates before submitting them to the Magistrate Judge.
Since that conference, the Defendants have deposed the Plaintiff. Both parties have
exchanged Rule 26(a) initial disclosures as well as written discovery requests and
responses. Lastly, the parties have also made some document productions to each
other. Plaintiff has not deposed anyone nor does it appear that Plaintiff has
attempted to depose anyone. Since October of 2015, the parties have litigated
significant motions in this matter including a motion for leave to file an amended
complaint, a motion for conditional certification of an FLSA collective action, and a
motion to reconsider the grant of leave to file an amended complaint.
Defendants have moved for partial summary judgment as to Plaintiff’s
common law retaliatory discharge, Illinois Whistleblower Act (“IWA”) and Adult
Protective Service Act (“APSA”) claims, which are Counts VII, VIII and IX of
Plaintiff’s Second Amended Complaint (Doc. 36), respectively. Defendants argue
that each of these claims fails as a matter of law because the Plaintiff has not
established a requisite causal connection between her undertaking the protected
activity of informing authorities of the Defendants’ alleged wrongdoing and her
termination. Specifically, they contend Plaintiff has not demonstrated the
Defendants had any knowledge that she informed authorities that the Defendants
were financially exploiting an elderly person or had a specific intention to inform
authorities of the same. Plaintiff does not dispute that the evidence in the record to
date does not establish the requisite causal relationship between her termination

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and her protected activity. Instead, she responds with a request that the Court stay
its consideration of Defendants’ motion until the completion of discovery.
LEGAL STANDARDS
The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if
“the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
movant may demonstrate the absence of a genuine dispute of material fact by citing
to admissible evidence, or by showing that the non-movant cannot produce
admissible evidence to support a genuine dispute of material fact. Fed. R. Civ. P.
56(c)(1). Upon such a showing by the movant, the non-movant may not simply rest
on his or her allegations in the complaint. “The nonmovant may not rest upon mere
allegations in the pleadings or upon conclusory statements in affidavits; it must go
beyond the pleadings and support its contentions with proper documentary
evidence.” Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir. 2001)
(internal quotations and citation omitted); Fed. R. Civ. P. 56(c)(1). Typically, all
inferences drawn from the facts must be construed in favor of the non-movant, but
the court is not required to draw every conceivable inference from the record. Smith
v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). At the summary judgment stage,
however, the court may not resolve issues of fact; disputed material facts must be
left for resolution at trial. Anderson, 477 U.S. at 249-50.

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Rule 56(b) provides that in general, a party may file a motion for summary
judgment at any time after the case is initiated until thirty days after the close of
discovery. Thus, discovery need not be completed before a party can move for
summary judgment. Fed. R. Civ. P. 56(b); Am. Nurses’ Ass’n v. State of Ill., 783 F.2d
716, 729 (7th Cir. 1986). The drafters of the Federal Rules foresaw instances where
parties would move for summary judgment prematurely and to safeguard against
such premature motions they included sub-paragraph (d). King v. Cooke, 26 F.3d
720, 726 (7th Cir. 1994) (dealing with then codified Rule 56 (f)). The provisions of
Rule 56(f) were moved to subsection (d) in 2010 “without any substantial changes.”
10B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
2740 (3d ed. 2014).This provision allows a non-movant to demonstrate to the Court
by giving specific reasons in an affidavit or declaration that the non-movant cannot
present facts necessary to oppose the motion. Deere & Co. v. Ohio Gear, 462 F.3d
701, 706 (7th Cir. 2006). Upon such a showing, the Court is empowered to defer
ruling on the summary judgment motion or deny it; allow a continuance so the nonmovant can obtain the necessary materials to oppose the summary judgment
motion; or issue any order the court deems appropriate. Fed. R. Civ. P. 56(d). The
non-movant must show that he diligently pursued discovery and explain why his
efforts in securing the necessary information were unsuccessful. See Grayson v.
O’Neill, 308 F.3d 808, 816 (7th Cir. 2002).

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DISCUSSION
Defendants’ motion for partial summary judgment is premised entirely on
Plaintiff’s purported failure to produce evidence that establishes a causal
relationship between her protected activity and her termination by Defendants. All
three of the claims at issue—the Illinois common law retaliatory discharge claim,
the Illinois Whistleblower Act claim, and the Adult Protective Services claim—
require the employer to have retaliated against the plaintiff for engaging in activity
protected by the common law or the statute, as the case may be. One cannot be
found to have retaliated against another for engaging in protected activity where
one has not been found to have even known the other engaged in such activity.
Thus, facts crucial to the three claims at issue here all center on the Defendant’s
knowledge of Plaintiff’s whistleblowing activities prior to her termination. Michael
v. Precision All. Grp., LLC, 21 N.E.3d 1183, 1188-89 (“When deciding the element of
causation, the ultimate issue is the employer’s motive in discharging the
employee.”). Since the entity Defendants were owned and operated by Defendant
Martin, it is his knowledge that is really at issue. Defendants have produced
evidence that the Plaintiff has no personal knowledge of whether Martin knew of
her whistleblowing activities, the “protected activity” under the law. Nor has
Plaintiff identified a specific person whom she knows has knowledge of whether
Martin knew of her whistleblowing activities. Rather, the Plaintiff claims that since
discovery is still open she should be entitled to conduct broad discovery, an aspect of

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which will be aimed at ascertaining evidence of what Martin knew of her reporting
activities. Unfortunately, that is not how Rules 56 and 26 complement each other.
The case law is clear that the mere fact that discovery period is not complete
is not sufficient grounds to defeat a motion for summary judgment. Am. Nurses’
Ass’n v. Illinois, 783 F.2d at 729. Generally, the successful 56(d) movant must show
how he has not been dilatory in discovery, why he cannot adequately respond to the
summary judgment motion without further discovery, what specific evidence he
expects to obtain from further discovery, and why it is material to the claims being
decided in the summary judgment motion. Grayson, 308 F.3d at 816-17; Lamb’s
Patio Theatre, Inc. v. Universal Film Exchanges, Inc., 582 F.2d 1068, 1071 (7th Cir.
1978).
Defendants claim Plaintiff has been dilatory in pursuing discovery related to
the causal connection requirement of her individual claims. Plaintiff contends that
she cannot be faulted for any dilatory conduct given that there is almost a full year
remaining in the original agreed period for discovery. She states that her counsel
planned for this period of time because of the potential existence of an FLSA
collective action, and because she was aware that she would not be able to conduct
significant discovery early in the case because of pre-existing obligations in other
cases. She admits that her counsel has only engaged in discovery related to the
potential collective action and only basic written discovery related to her individual
claims thus far. Plaintiff contends further that it was reasonable for her counsel to

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determine the existence of other co-plaintiffs before proceeding with discovery
related solely to Plaintiff's individual claims.
The Court does not fully credit Plaintiff’s explanation for her failure to
engage in discovery related to her individual claims. Plaintiff makes much of her
diligence in litigating several motions but that is irrelevant because diligence in
pursuing discovery is what matters in a Rule 56(d) analysis. Kalis v. ColgatePalmolive Co., 231 F.3d 1049, 1058 n.5 (7th Cir. 2000) (explaining that denying a
56(f) motion is proper when a party fails to secure discoverable evidence due to his
own lack of diligence). Several months have passed since the scheduling order went
into effect and from the Court’s review of the docket it does not seem that Plaintiff
noticed any depositions or issued any subpoenas. Moreover, her affidavit and
motion are devoid of any assertions that she has even begun the process of either
scheduling depositions for the several individuals she plans to ultimately depose or
issuing subpoenas. Given her inaction, the pertinent question before the Court is
whether she was entitled to rely on the discovery schedule in putting off her
discovery requests until a time more appropriate for her own schedule.
The Court believes that Plaintiff’s counsel was entitled to rely on the
discovery schedule to which she and opposing counsel agreed in fashioning the
sequence and timing of her discovery. The purpose of discovery is to allow parties to
gather factual information to prove their claims and defenses. The purpose of a
discovery schedule is to allow them a certain duration of time to go about gathering
such information. Rule 26 does not contain a provision that purports to dictate what

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aspects of general fact discovery counsel must complete within a given period of
time. In fact, the provision of Rule 26 dealing with the sequence of discovery states
that “the methods of discovery may be used in any sequence.” Fed. R. Civ. Pro.
26(d)(3)(A). While not completely on point for this analysis, the provision
nonetheless lends support to the conclusion that Plaintiff should not be found to be
dilatory for not engaging in certain discovery when she still has almost a year to
complete such discovery.
Moreover, most of the cases in which a non-movant has been found dilatory
and thus undeserving of the protection of Rule 56(d) deal with situations in which
discovery had already closed and the 56(d) movant failed to be diligent in pursuing
discovery during the discovery period, see, e.g., Kalis, 231 F.3d 1049, or the 56(d)
movant was inactive for an extraordinarily long period of time. E.g., Staten v.
Nissan N.Am., Inc., 134 Fed.Appx. 963 (7th Cir. 2005) (plaintiff sat on her hands for
eighteen months). That is not the case here. Discovery remains open for several
months and Plaintiff has engaged in some discovery over the past six months since
discovery opened. Plaintiff’s affidavit directs the Court to her motion in which she
essentially contends that she has not had an adequate opportunity to conduct
discovery because she was litigating other aspects of this case and her counsel was
engaged in other external matters. She further asserts that part of the reason she
agreed to a discovery completion date of April 3, 2017 in the first place was to
accommodate her tight schedule. Given these circumstances, the Court will not find
that the Plaintiff acted in a dilatory fashion in seeking discovery.

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Next, the Court should consider why the Plaintiff cannot present facts
necessary to oppose the motion. Deere & Co., 462 F.3d at 706. Her explanation is
rather obvious. Plaintiff cannot present facts necessary to oppose the Defendants’
partial summary judgment motion because she does not have them. She has yet to
try to obtain such facts because she thought she had ample time to do so.
Importantly, Defendants have not demonstrated that no facts exist that would allow
Plaintiff to oppose their motion. Since Plaintiff has already explained why she has
not yet engaged in the discovery she needs to oppose the summary judgment motion
and Defendants have not put forth evidence that absolutely forecloses the
possibility that Defendant Martin knew of Plaintiff’s whistleblowing activities prior
to terminating her, the Court finds this factor in the 56(d) analysis does not weigh
in favor of denying Plaintiff some relief.
The Court will analyze the next two considerations—the specific evidence
Plaintiff expects to obtain from further discovery and why it would be material to
the claims being decided in the summary judgment motion—in tandem. Woods v.
City of Chicago, 234 F.3d 979, 990 (7th Cir. 2000) (Rule 56(d) movants must
demonstrate why the specific discovery sought is likely to generate a genuine issue
of material fact). Plaintiff states she intends to depose certain people whom she
believes has knowledge of information probative of whether and to what extent
Martin knew of her whistleblowing activities. These people include: Defendant
Martin himself; a 30(b)(6) corporate designee of the entity Defendants; Luke
Stremlau (the Merle pharmacy office manager); Nancy Naples (Merle’s/CMIE’s

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Medicare accreditation coordinator); Carol Hanover (the elderly customer at the
center of Plaintiff’s claims); B. Arnold McClean (Hanover’s attorney); and the
attorney for Defendants upon whose advice they allegedly relied in terminating
Plaintiff. She states all of these people, directly or circumstantially, may provide
evidence regarding Martin’s awareness of Plaintiff’s protected whistleblowing
activity. In addition to depositions, Plaintiff intends to subpoena records of various
individuals, including Hanover’s attorney and the attorney for Defendants who
spoke with Martin immediately prior to Plaintiff’s termination and who allegedly
recommended her termination.
Plaintiff opines that this discovery will uncover whether and to what extent
Defendants’ employees may have shared Plaintiff’s communications regarding her
protected activity with Defendant Martin; whether and to what extent Defendant
Martin or other employees of Defendant may have heard Plaintiff’s communication
with the State’s Attorney’s office; whether and to what extent Defendant Martin or
other employees of Defendant may have heard Plaintiff’s communication with her
own prospective counsel concerning her intention to engage in protected activity;
whether and to what extent the elderly customer told Martin that Plaintiff was in
the process of complaining to authorities1; and whether Defendants’ attorney knew
of Plaintiff’s protected activity. She intends to also explore the credibility and
motivation of Martin and other employees who may deny any knowledge of
The Court is puzzled as to why Plaintiff has not yet at least already secured an
affidavit from the elderly customer since she is not an employee of Defendants and
Plaintiff has demonstrated that she has not had a problem in the past
communicating with her.

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Plaintiff's protected activity. In short, she intends to use discovery to explore the
extent of Martin’s knowledge of Plaintiff’s efforts to complain to authorities and any
basis for his possible denial of such knowledge.
This proposed plan of discovery resembles the proverbial “fishing expedition”
rejected by the Seventh Circuit in Davis v. G.N. Mortgage Corp., 396 F.3d 869 (7th
Cir. 2005). There, plaintiffs sued their mortgager over a prepayment penalty. Id.
According to them, there was a two-year prepayment penalty provision somewhere
in the documents they signed to close a mortgage transaction. Id. at 855. However,
there was only evidence of a five-year prepayment penalty provision in the file. Id.
Plaintiffs

requested

to

be

allowed

to

depose

all

employees,

agents,

or

representatives of the defendants who had any physical contact with plaintiffs’ loan
file. Id. It is worth reviewing what the Davis court wrote in rejecting the plaintiffs’
argument:
the plaintiffs fail to set forth any specific evidence which they might
have obtained from these depositions that would create a genuine issue
as to this material fact. The only reason to believe that additional,
relevant evidence would materialize from deposing the defendants’
employees is the Davises’ apparent hope of finding a proverbial
“smoking gun”—that is, someone who will testify that he or she knows
that a signed, two-year prepayment penalty provision did actually
exist at some time and that the defendants have either hidden,
destroyed, or otherwise disposed of this document. This, however, is
based on nothing more than mere speculation and would amount to a
fishing expedition, which is an entirely improper basis for reversing a
district court’s decision to deny a Rule 56(f) motion. Grayson, 308 F.3d
at 817; United States v. On Leong Chinese Merch. Assoc. Bldg., 918
F.2d 1289, 1294–95 (7th Cir. 1990). Likewise, the Davises’ desire to
now depose the GN and Countrywide officials that had authority over
their loan (Brian Brandt and Patrice McPherson, respectively) is also
an insufficient reason for this court to hold that the district court
abused its discretion. Both Brandt and McPherson stated via affidavit
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that the Davises’ loan file did not contain either a signed or unsigned
two-year prepayment penalty addendum and the depositions sought
would be solely for purposes of casting doubt on the affiants’ credibility
and to reach “the unlikely possibility ... [that] an adverse witness may
contradict an earlier statement or volunteer an admission.” On Leong,
918 F.2d at 1294. However, this is not a valid reason for a court to
grant a motion for a continuance to conduct additional discovery
because, as this court has explained, Rule 56(f) “is not a shield that can
be raised to block a motion for summary judgment without even the
slightest showing by the opposing party that his opposition is
meritorious.” Id.
396 F.3d at 885-86. Given this precedent, the Court will not give Plaintiff carte
blanche to engage in broad discovery until the current discovery cut-off of April 3,
2017 in order to respond to the pending motion for partial summary judgment.
As it stands now, much of what Plaintiff seeks to discover is disallowed or
otherwise disfavored under Davis. For example, Plaintiff states that she intends to
explore the credibility and motivation of Martin and other employees who may deny
any knowledge of Plaintiff's protected activity. It seems she already expects that
several of the people she intends to depose will deny Martin knew of her
whistleblowing activities, thus she wants to explore their motivation and credibility.
This is exactly the type of discovery that was disallowed in Davis. 396 F.3d at 886.
She also seeks to explore what certain co-workers may have overheard of her
phone conversations at work and what they may have conveyed to Martin. She has
presented no concrete evidence anyone even overheard her phone conversations.
She also fails to identify who the specific co-workers are that may have overheard
her.

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More troubling is that Plaintiff has no actual knowledge of whether any of
the people she seeks to depose, other than Martin himself, has any knowledge of
whether Martin knew of her whistleblowing activities. Once a summary judgment
motion has been filed, a non-movant’s ability to engage in plenary discovery is
curtailed and the only limited discovery that should be allowed is discovery focused
on the specific material facts the non-movant has a reasonable basis to believe exist
as necessary to meet the factual basis for the motion. See Davis, 396 F.3d at 886;
Grayson, 308 F.3d at 817; Lamb’s Patio Theatre, Inc., 582 F.2d at 1071.
Based upon what Plaintiff has provided so far, the Court is of the opinion
that she has only provided a reasonable basis to depose Defendant Martin directly
as to what he knew of Plaintiff’s protected activity before he terminated her. That
knowledge is a crucial element of the retaliatory claims at issue. Thus, it would be
manifestly unfair to the Plaintiff to grant summary judgment on these issues when
she has not yet tested what Martin knew of her activity during the open discovery
period.
As to the rest of the discovery she proposes, the Court concludes that Plaintiff
has not provided the Court with a sufficient basis to allow it now that the
Defendants’ have moved for summary judgment. Plaintiff has not given much more
than rank suspicion as the basis for her assumptions that engaging in more
discovery will yield her useful information. For example, Plaintiff has identified
only one person at her job, the accreditation manager, as someone she allegedly told
of her intentions to report Defendants to authorities. This significantly limits the

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persons in position to provide useful information through additional discovery
unless Plaintiff can show that other persons became aware of her whistleblowing
activities and were in position to relay such information to Defendant Martin; no
such persons have been identified by Plaintiff beyond sheer speculation. At this
point in time, only a focused and limited inquiry into specific facts directly material
to the motion for summary judgment will be allowed.
Therefore, the parties are directed to meet and confer within the next
fourteen (14) days and present to the Court a limited and expedited written
discovery plan that conforms to the directives of this Opinion and Order and
facilitates the adjudication of the Defendants’ summary judgment order. If Plaintiff
seeks more than Defendant Martin’s deposition, she must provide the Court with a
detailed written explanation of why such discovery is necessary and what the basis
is for her expectation such discovery will lead to useful material facts supporting an
opposition to the motion for partial summary judgment. Disputes over the plan
shall be referred to the Magistrate Judge for resolution consistent with this Order
and Opinion.
CONCLUSION
For the reasons stated above, Defendant’s the Motion for Partial Summary
Judgment (Doc. 43) is TEMPORARILY STAYED and Plaintiff’s Rule 56(d) Motion
to Defer Defendants’ Motion for Partial Summary Judgment Pending Completion of
Discovery (Doc. 46) is DENIED in part and GRANTED in part. Parties must submit

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a limited and expedited written discovery plan conforming to the directives of this
Opinion and Order on or before July 13, 2016.
Entered this 29th day of June, 2016.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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