Grabowski v. QBE Americas, Inc.

Filing 37

ORDER Granting In Part and Denying In Part 30 Motion to Stay. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CYNTHIA GRABOWSKI,
Plaintiff,

CASE NO. 15-12318
HON. DENISE PAGE HOOD

v.
QBE AMERICAS, INC., and
QBE HOLDINGS, INC. REGULAR
OR LIMITED TERM MEMBERS
GROUP MEMBER BASIC LIFE
INSURANCE PLAN,
Defendants.
/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO STAY [#30]
I. BACKGROUND/FACTS
This lawsuit was originally filed on June 26, 2015 by Plaintiff Cynthia
Grabowski (“Grabowski”), individually and as the Personal Representative of the
Estate of Terence G. Grabowski. (Doc # 1)   On July 13, 2016, Grabowski filed an
Amended Complaint against Defendants QBE Americas, Inc. and QBE Holdings,
Inc. Regular or Limited Term Members Group Member Basic Life Insurance Plan
alleging four counts: Violation of the American with Disabilities Act (Count I),
Breach of Fiduciary Duty under the Employee Retirement Income Security Act
(“ERISA”) (Count II), Wrongful Termination under ERISA (Count III), and
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Wrongful Refusal to Pay Life Insurance (Count IV). (Doc # 21) Pursuant to the
Scheduling Order entered on July 20, 2016, the discovery deadline is on January 9,
2017; and the dispositive motion deadline is on February 13, 2017. (Doc # 24)
On November 10, 2016, Defendants filed a Motion to Dismiss or in the
Alternative Motion for Summary Judgment. (Doc # 28) The matter is scheduled
for a Motion Hearing on January 25, 2017 and has not yet been fully briefed. Also
on November 10, 2016, Defendants filed a Motion to Stay the Case Pending an
Order on their Motion to Dismiss or in the Alternative Motion for Summary
Judgment. (Doc # 30) Grabowski filed a Response to the Motion to Stay on
November 28, 2016. (Doc # 34) Defendants filed a Reply on December 2, 2016.
(Doc # 35) The Court held a hearing on the Motion to Stay on December 6, 2016.
Decedent Terence Grabowski was a senior claims adjuster for QBE
Americas, Inc. since June 2011.

In March 2014, he was placed on a Work

Performance Plan. (Doc # 28-3) In July 2014, he made QBE aware that he was
seeking medical treatment after beginning to experience short-term memory loss.
QBE requested that his doctor fill out a form furnished by QBE titled “Request for
Information: Americans with Disabilities Act.” (Doc # 34-1) This form, dated
July 25, 2014, states as follows:
Terence has brought it to our attention that he has been seeing a
doctor for memory issues/episodes of forgetfulness. Terence has been
missing important deadlines, has issues with paying attention to detail,
has not been maintaining his claims files appropriately and is often
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not responsive to requests from his manager. We are concerned for
his well-being while at work. We have observed that his performance
level is not where it needs to be. Terence is a Senior Claims
Specialist – Property and performs most of his work in his cubicle at
his desk on the phone and on a computer. Given the above
information, we need to determine any reasonable accommodations
that we can make to restore him to an acceptable level of
performance.
Id. at 679. His doctor completed the form noting that Terence Grabowski was
being referred to a neurologist for further evaluation and diagnosis. Id. The doctor
noted a possible need for medication pending further evaluation. Id. at 680. In
response to the question “What is the nature of the employee’s condition to the
extent that such condition may affect the employee’s ability to perform the
functions of his job?,” the doctor responded: “minimal; but beginning to be an
issue + progressing.” Id. The doctor opined that Grabowski was not limited in any
major life activities other than working. Id. QBE included a suggested list of
accommodations for Terence Grabowski on the form, and asked his doctor to
comment on them. Id. at 681. The doctor agreed with the suggested list of
accommodations and opined that Terence Grabowski could perform all of his
essential job responsibilities without any other accommodations. Id. Grabowski
asserts that this form was returned to QBE in August 2014, and that Terence
Grabowski informed QBE that his appointment with the neurologist was scheduled
for September 29, 2014.

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Terence Grabowski was terminated on September 11, 2014, which
Defendants allege was for performance issues. Grabowski claims that he was
never given the option to take a leave of absence until his medical condition could
be determined. Two months after the termination, a neurologist diagnosed Terence
Grabowski with early onset Alzheimer’s Dementia, and he was started on
medication. Grabowski claims that, after applying to dozens of companies with no
response, Terence Grabowski talked to QBE about short-term and long-term
disability but was told that he was not eligible because he was no longer an
employee.
In December 2014, Terence Grabowski filed a charge of discrimination with
the EEOC. He submitted a Supplemental Questionnaire stating that he could not
perform the major duties of the claims adjuster position with or without an
accommodation, and that he did not ask for an accommodation. (Doc # 28-8) On
April 2, 2015, the EEOC issued a Dismissal and Notice of Rights. (Doc # 28-9)
In May 2015, Terence Grabowski submitted a claim for short-term and longterm disability benefits through QBE. He also submitted documentation from his
neurologist stating that he was terminated before the neurologist was able to first
see him in September 2014. (Doc # 28-6) The neurologist did not support Terence
Grabowski returning to work at that time even with accommodations. Id.

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Terence Grabowski died on May 23, 2015 from a heart attack. After filing
this litigation in June 2015, Grabowski was notified that the claim for long-term
disability benefits was approved. Grabowski subsequently filed a claim for life
insurance proceeds through QBE, but the claim was denied and the denial affirmed
through administrative appeals. The Principal determined that Terence Grabowski
was not eligible for life insurance coverage because: (1) he did not become totally
disabled prior to attaining the age of 60, as required by the policy; and (2) he did
not convert his group life insurance policy to an individual policy after he was
terminated. (Doc # 28-10)
II.ANALYSIS
A. Standard of Review
“Trial courts have broad discretion and inherent power to stay discovery
until preliminary questions that may dispose of the case are determined.” Hahn v.
Star Bank, 190 F.3d 708, 719 (6th Cir. 1999).
B. Whether to Stay the Case

Through the instant Motion, Defendants seek to stay the case, including all
discovery, until the Court rules on the threshold issues raised in Defendants’
Motion to Dismiss or for Summary Judgment, in order to avoid unfair prejudice
and unnecessary attorneys’ fees and costs. Defendants argue that a stay would not

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prejudice Grabowski because the Motion to Dismiss is based on Grabowski’s
pleadings and the related administrative record. Defendants’ Motion to Dismiss or
for Summary Judgment could potentially dispose of this case entirely. Defendants
identify the following eight issues to be decided in their Motion to Dismiss:
1. Are Defendants entitled to dismissal of Count I of Plaintiff’s First
Amended Complaint under the ADA where judicial estoppel prevents
Plaintiff from arguing that Terence Grabowski was denied any
reasonable accommodation, or was otherwise a qualified individual
with a disability as defined by the ADA?

2. Are Defendants entitled to dismissal of Count I of Plaintiff’s First
Amended Complaint under the ADA where Plaintiff has not
sufficiently pled, and cannot establish that Terence Grabowski was
disabled as defined by the ADA?

3. Are Defendants entitled to dismissal of Count I of Plaintiff’s First
Amended Complaint where neither Terence Grabowski nor QBE were
aware of Grabowski’s alleged disability at any time prior to his
termination?

4. Are Defendants entitled to dismissal of Count I of Plaintiff’s First
Amended Complaint where Plaintiff has not established and cannot
establish that Terence Grabowski was qualified to perform the
essential functions of his position with or without reasonable
accommodation?

5. Are Defendants entitled to dismissal of Count I of Plaintiff’s First
Amended Complaint where Terence Grabowski was terminated for
legitimate non-discriminatory reasons, wholly unrelated to his
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purported disability, which neither Terence Grabowski, nor QBE were
aware of as of the date of Grabowski’s termination?

6. Are Defendants entitled to dismissal on Plaintiff’s claim of Breach
of Fiduciary Duty under Section 502(a)(3) of ERISA, where ERISA
does not permit duplicative claims for the same remedy and Plaintiff
has sought relief under Section 502(a)(1)(B)?

7. Are Defendants entitled to dismissal on Plaintiff’s claim of
wrongful refusal to pay life insurance in violation of ERISA, where
the decision to deny Plaintiff’s claim for benefits was neither arbitrary
nor capricious?

8. Are Defendants entitled to dismissal on Plaintiff’s claim of
wrongful termination in violation of ERISA, where Plaintiff failed to
exhaust her administrative remedies and cannot show a causal nexus
between Grabowski’s termination and entitlement to benefits?

Grabowski responds that it would be grossly unfair to require Grabowski to
respond to Defendants’ extensive Motion to Dismiss or in the Alternative Motion
for Summary Judgment without the ability to complete discovery. Grabowski
notes that Defendants responded to Grabowski’s Request to Produce with
objections to almost every request on the same day they filed their Motion to
Dismiss and Motion to Stay. Grabowski asserts that few documents have been
produced, and that Defendants stated that some additional documents would be
produced upon entry of a mutually agreeable protective order. At a minimum,
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Grabowski seeks testimony from Terence Grabowski’s two supervisors, as well as
the two decision makers on his request for long-term disability and life insurance.
Grabowski argues that these depositions will provide knowledge of what
Defendants knew and when in deciding to terminate Terence Grabowski, and are
necessary to adequately defend against Defendants’ Motion to Dismiss  or in the
Alternative Motion for Summary Judgment.
Grabowski relies on Ohio Bell Tel. Co. v. Global NAPs Ohio, Inc., where in
ruling upon a motion to stay, the court weighed “the burden of proceeding with
discovery upon the party from whom discovery is sought against the hardship
which would be worked by a denial of discovery.” No. 2:06-CV-0549, 2008 WL
641252, at *1 (S.D. Ohio Mar. 4, 2008). The court stated that when a stay, rather
than a prohibition of discovery is sought, the burden upon the party requesting the
stay is less, and that the filing of a dispositive motion is usually deemed
insufficient to support a stay of discovery. Id. The court reasoned that motions to
dismiss are a frequent part of federal practice and that “a stay should not ordinarily
be granted to a party who has filed a garden-variety Rule 12(b)(6) motion” because
it would be at odds with the need for expeditions resolution of litigation. Id. It
would also require the court to make a preliminary finding of likelihood of success
on the motion to dismiss, which would circumvent the procedures for resolution of
such a motion. Id. The court noted that a stay may be appropriate where the
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complaint is “utterly frivolous,” or where the motion raises issues such as
immunity from suit, which would be substantially vitiated absent a stay. Id.
Defendants rely on Bradley v. Hallworth; however, that case involved an
unopposed motion to stay discovery pending a ruling on a motion to dismiss and
for summary judgment that raised issues of Eleventh Amendment immunity and
qualified immunity. No. 1:09-CV-1070, 2010 WL 2231820, at *1 (W.D. Mich.
June 1, 2010). The court found that “[a] stay of discovery is properly granted until
the issue of immunity is resolved.” 
In this case, Terence Grabowski is deceased, and it would likely present a
hardship to Grabowski to have to respond to Defendants’ Motion to Dismiss or in
the Alternative Motion for Summary Judgment without additional discovery.
There is no indication that the burden on Defendants of proceeding with discovery
would be unusually great. It cannot be said that Grabowski’s Complaint is utterly
frivolous, and Defendants’ Motion to Dismiss or in the Alternative Motion for
Summary Judgment does not raise issues of immunity from suit. Balancing the
arguments of Counsel, the Court grants in part and denies in part Defendants’
Motion to Stay.
III. CONCLUSION
For the reasons set forth above,

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IT IS HEREBY ORDERED that Plaintiff is allowed to conduct the four
depositions requested on the record, that of Terence Grabowski’s two supervisors,
as well as the two decision makers on his request for long-term disability and life
insurance.
IT IS FURTHER ORDERED that Defendants are required to produce
documents covered by the Protective Order reviewed and signed by the Court no
later than December 19, 2016.
IT IS FURTHER ORDERED that the following dates on the Scheduling
Order entered on July 20, 2016 are STAYED:
Lay Witnesses

December 8, 2016

Plaintiff’s Expert Witness List

December 8, 2016

Defendants’ Expert Witness List

December 22, 2016

Discovery Cut-Off

January 9, 2017

Status Conference

January 17, 2017 at 2:30 p.m.

Dispositive Motion Cut-Off

February 13, 2017.

IT IS FURTHER ORDERED that Defendants’ Motion to Stay the Case
Pending an Order on their Motion to Dismiss or in the Alternative Motion for
Summary Judgment (Doc # 30) is otherwise GRANTED.
s/Denise Page Hood
Chief Judge, United States District Court
Dated: December 7, 2016
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I hereby certify that a copy of the foregoing document was served upon counsel of
record on December 7, 2016, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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