Dibbern v. University of Michigan et al

Filing 105

ORDER OVERRULING 99 Objection to 97 Order on Motion to Compel by All Defendants. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Jennifer Dibbern,
Plaintiff,
v.

Case No. 12-15632

University of Michigan, et. al.,

Honorable Sean F. Cox

Defendants.
_________________________________/
ORDER OVERRULING DEFENDANTS’ OBJECTIONS TO MAGISTRATE JUDGE’S
ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL DISCOVERY
This case is, at its core, a sexual harassment and sexual discrimination case. Plaintiff
Jennifer Dibbern (“Plaintiff” or “Dibbern”) alleges that, while she was a graduate student at the
University of Michigan (“U-M”) College of Engineering, she was subjected to severe and pervasive
sexual harassment and discrimination by her male peers, as well as by university faculty and
employees, that deprived her of the full benefit of the educational experience. Plaintiff also alleges
that the University and its faculty retaliated against her in various ways, including by dismissing her
from her graduate program, in response to her reports of sexual harassment and discrimination in
the Engineering department.
This matter is before the Court on Defendants’ Objections (Doc. #99) to Magistrate Judge
Hluchaniuk’s Order Granting in Part Plaintiffs’ Motion to Compel Discovery (Doc. #97). The
objections have been fully briefed by the parties. For the reasons set forth below, the Court shall
OVERRULE Defendants’ objections.

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BACKGROUND
Plaintiff joined the University of Michigan’s Department of Material Science and
Engineering in the fall of 2007. Plaintiff’s entering Ph.D. class included five women out of a total
of approximately 25 students. (Pl.’s Compl. at ¶ 34). Plaintiff alleges that she was subjected to
sexual harassment and threats of sexual assault at the hands of her engineering PhD colleagues, who
were mostly male.
In January 2009, Plaintiff made an anonymous phone call to the University of Institutional
Equity concerning harassment, discrimination and stalking she was experiencing. During this phone
call, she spoke with Associate Vice Provost for Academic and Faculty Affairs Anthony Walesby,
(“Walesby”) who is an Associate Vice Provost for Academic and Faculty Affairs and the
university’s Title IX coordinator. (Pl.’s Compl. at ¶ 60). Walesby allegedly responded that he
needed “concrete proof” and commented that “people assume women false report this kind of stuff.”
(Pl.’s Compl. at ¶ 62). Walesby also allegedly told Plaintiff that “the truth is, there are some women
who are overly sensitive . . . and who can’t take a joke and feel offended.” (Pl.’s Compl. at ¶ 66).
Plaintiff felt that Walesby was ineffective and offered her no means of recourse. (Pl.’s Compl. at
¶ 67).
Plaintiff also received confidential support services from the Sexual Assault Prevention and
Awareness Center (“SAPAC”), of which Holly Rider-Milkovich (“Milkovich”) is the Director.
Plaintiff maintains that she was wrongfully dismissed from her PhD program after years of
experiencing sexual and gender-based harassment, about which she complained to numerous
University officials and faculty, and in response to which the University took absolutely no helpful
action. (Pl.’s Compl. at ¶ 118-119).

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Plaintiff filed her original Complaint on December 21, 2012. (Doc. #1). Plaintiff’s Second
Amended Complaint, filed on June 7, 2013, alleges the following counts:
•

Count I: Title IX Sex Discrimination and Sexually Hostile Educational Environment, against
U-M and U-M Board of Regents;

•

Count II: Title IX Retaliation for Reporting, Opposing, and Attempting to Remedy a
Sexually Hostile Environment in the College of Engineering, against U-M and U-M Board
of Regents;

•

Count III: Equal Protection - 42 U.S.C. § 1983, against the Individual Defendants in their
Individual and Official Capacities;

•

Count IV: Due Process Violations - 42 U.S.C. § 1983, against the Individual Defendants in
their Individual and Official Capacities;

•

Count V: First Amendment Freedom of Speech Retaliation - 42 U.S.C. § 1983, against the
Individual Defendants in their Individual and Official Capacities;

•

Count VI: Michigan Elliot-Larson Civil Rights Act (“ELCRA”) Discrimination/Disparate Treatment/Hostile Environment, against All Defendants;

•

Count VII: ELCRA - Sex Discrimination/Disparate Impact, against All Defendants;

•

Count VIII: ELCRA Retaliation, against all Defendants, and

•

Count IX: Invasion of Privacy, against all Individual Defendants.

Sex

(Second Amd. Compl., Doc. #23).
In an Opinion and Order dated November 18, 2013, the Court denied Defendants’ Motion
to Dismiss Pursuant to Rule 12(b)(6) (Doc. #36).
Sometime thereafter, Plaintiff noticed the depositions of Walesby and Milkovich. Plaintiff
also served requests to produce documents on Defendants.
On May 28, 2014, Defendants filed a Motion for Protective Order on May 28, 2014 in which
they sought a protective order “precluding Plaintiff from asking deponents questions regarding
sexual harassment, assault and misconduct incidents involving students outside the College of
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Engineering.” (Mo. for Prot. Order, Doc. #45).
Magistrate Judge Komives granted Defendants’ Motion for Protective Order. In his Order,
Magistrate Judge Komives ordered that
defendants’ motion for protective order is granted but only to the extent set forth in
the July 29, 2014 joint statement of resolved/unresolved issues. Doc. Ent. 69. In
other words, defendants’ motion for protective order (Doc. Ent. 45) is granted to the
extent it seeks ‘entry of an order preventing Plaintiff from asking questions at
depositions regarding sexual harassment, assault and misconduct incidents involving
students outside the College of Engineering . . .’ this ruling applies only to discovery
conducted by deposition, not to plaintiff’s discovery requests for documentary
evidence.
(Order Granting Prot. Order, Doc. #79). Magistrate Judge Komives’s Order further stated that he
was granting Defendants’ motion pursuant to Federal Rules of Civil Procedure 26(b)(2)(C) and (c).
(Doc. #79 at 3).
Plaintiff filed Objections to Magistrate Judge Komives’s September 24, 2014 Order Granting
Defendant’s Motion for Protective Order (Doc. #81) pursuant to Federal Rule of Civil Procedure
72. On April 1, 2015, this Court overruled Plaintiff’s objections to Magistrate Judge Komives’s
Order. (Order, Doc. #103). In that Order, the Court noted that Magistrate Judge Komives’s Order
did not prevent Plaintiff from propounding document requests for statistical data. (Doc. #103 at 78). The Court also stated that preventing Plaintiff from engaging in oral discovery concerning other
students’ reports of harassment would not prevent Plaintiff from establishing the necessary elements
of her Title IX claims. (Doc. #103 at 8-9).
On February 19, 2015, Magistrate Judge Hluchaniuk issued an Order Granting Plaintiff’s
Motion to Compel in Part (Doc. #97). Magistrate Judge Hluchaniuk concluded that documents
responsive to Plaintiff’s First Request for the Production of Documents, including documents
“associated with sexual assault and harassment matters that were considered or addressed by entities
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outside the College of Engineering, but within the authority or sponsorship of the University of
Michigan . . . ” are “relevant to some of plaintiff’s claims in this matter.” (Doc. #97 at 2).
Magistrate Judge Hluchaniuk ordered Defendants to produce “[d]ocuments responsive to plaintiffs
[sic] First Request for the Production of Documents in the possession, custody, or control of
[enumerated University offices/entities] that include aggregate or statistical data only, involving the
period of 2007 through 2012, and that do not implicate statutory limitations on disclosure or
confidentiality issues . . . .” (Doc. #97 at 3).
Magistrate Judge Hluchaniuk also ordered Defendants to produce “responsive documents
to plaintiff’s Second Request for the Production of Documents including communications to the
Office of Civil Rights related to the investigation by the Office of Civil Rights into the practices and
procedures employed by the University regarding sexual assaults and harassment.” (Doc. #97 at 45).
Defendants object to Magistrate Judge Hluchaniuk’s February 19, 2015 Order. (Objections,
Doc. #99). Defendants claim that the issue of relevance related to University-wide discovery has
already been dealt with by Magistrate Judge Komives, and so Magistrate Judge Hluchaniuk “should
have applied the law of the case doctrine and denied Plaintiff’s motion to compel.” (Doc. #99 at 1).
Alternatively, Defendants argue (as they did before Magistrate Judge Hluchaniuk) that Plaintiff’s
requested documents are not relevant and not reasonably calculated to lead to the discovery of
admissible evidence. (Doc. #99 at 1). Plaintiff has responded to Defendants’ objections (Doc. #100)
and Defendants have replied. (Doc. #102).

STANDARD OF DECISION
Federal Rule of Civil Procedure 72 sets forth the proper procedure for objecting to a
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magistrate judge’s order on a nondispositive matter. It provides:
When a pretrial matter not dispositive of a party’s claim or defense is referred to a
magistrate judge to hear and decide, the magistrate judge must promptly conduct the
required proceedings and, when appropriate, issue a written order stating the
decision. A party may serve and file objections to the order within 14 days after
being served with a copy. A party may not assign as error a defect in the order not
timely objected to. The district judge in the case must consider timely objections and
modify or set aside any part of the order that is clearly erroneous or is contrary to
law.
Fed. R. Civ. P. 72(a).
ANALYSIS
The Court finds that Defendants have failed to establish that Magistrate Judge Hluchaniuk’s
February 19, 2015 Order (Doc. #97) is either clearly erroneous or contrary to law. Furthermore, the
Court agrees with Magistrate Judge Hluchaniuk’s resolution of the motion. Therefore, the Court
shall OVERRULE Defendants’ Objections to Magistrate Judge Hluchaniuk’s February 19, 2015
Order.
CONCLUSION & ORDER
For the reasons set forth above, this Court OVERRULES Defendants’ Objections to
Magistrate Judge Hluchaniuk’s Order Granting in Part Plaintiff’s Motion to Compel Discovery.
(Defs. Objs., Doc. #99).
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: April 22, 2015

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Jennifer Dibbern,
Plaintiff,
v.

Case No. 12-15632

University of Michigan, et. al.,

Honorable Sean F. Cox

Defendants.
_________________________________/
PROOF OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of record
on April 22, 2015, by electronic and/or ordinary mail.

S/Jennifer McCoy
Case Manager

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