Eichbauer v. Henry Ford Health System et al
OPINION AND ORDER AFFIRMING MAGISTRATE JUDGE WHALEN'S MAY 5, 2017 ORDER 34 AND OVERRULING PLAINTIFF'S AND DEFENDANTS' OBJECTIONS [38, 39]. Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-cv-11404
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
HENRY FORD HEALTH SYSTEM &
HENRY FORD HOSPITAL,
UNITED STATES MAGISTRATE JUDGE
R. STEVEN WHALEN
OPINION AND ORDER AFFIRMING MAGISTRATE JUDGE WHALEN’S
MAY 5, 2017 ORDER  AND OVERRULING PLAINTIFF’S AND DEFENDANTS’
OBJECTIONS [38, 39]
This matter came before the Court on Plaintiff’s and Defendants’ May 22,
2017 objections to Magistrate Judge R. Steven Whalen’s May 5, 2017 Order
Granting In Part And Denying In Part Plaintiff’s Motion to Compel Discovery. See
Dkt. Nos. 34, 38, 39. Defendants Henry Ford Health System and Henry Ford
Hospital filed a response to Plaintiff’s objections on June 5, 2017. Dkt. No. 43. No
oral argument was heard.
For the reasons stated herein, the Court will AFFIRM Magistrate Judge
Whalen’s order and OVERRULE Plaintiff’s and Defendants’ objections [38, 39].
II. STANDARD OF REVIEW
Rule 72(a) of the Federal Rules of Civil Procedure permits a party to submit
objections to a magistrate judge’s ruling on non-dispositive matters, such as
discovery orders. FED. R. CIV. P. 72(a); 28 U.S.C. § 636(b)(1)(A). While Rule
72(b) provides a timeline in which a party may respond to opposing counsel’s
objections to a ruling on a dispositive matter, Rule 72(a) does not state that a
response may be filed to objections. Compare FED. R. CIV. P. 72(a) with FED. R.
CIV. P. 72(b). “When an objection is filed to a magistrate judge’s ruling on a non‐
dispositive motion, the ruling remains in full force and effect unless and until it is
stayed by the magistrate judge or a district judge.” E.D. Mich. LR 72.2.
As a non-dispositive matter, the review of a magistrate’s discovery order is
properly governed by the “clearly erroneous or contrary to law” standard of
review. FED. R. CIV. P. 72(a). The United States Supreme Court and the United
States Court of Appeals for the Sixth Circuit have both held that “a finding is
‘clearly erroneous’ when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948) (explaining the clearly erroneous standard under Rule 52(a)); United
States v. Mabry, 518 F.3d 442, 449 (6th Cir. 2008) (quoting U.S. Gypsum, 333
U.S. at 395). This standard does not allow a reviewing court to reverse a magistrate
judge’s finding merely because it would have decided the matter differently.
Sedgwick Ins. v. F.A.B.E. Custom Downstream Sys., Inc., 47 F. Supp. 3d 536, 538
(E.D. Mich. 2014). See also 12 CHARLES ALAN WRIGHT, ARTHUR R. MILLER &
RICHARD L. MARCUS, FEDERAL PRACTICE
PROCEDURE § 3069 (2d ed. 1997)
(“In sum, it is extremely difficult to justify alteration of the magistrate judge’s
nondispositive actions by the district judge.”).
“The ‘clearly erroneous’ standard applies only to the magistrate judge’s
factual findings; his legal conclusions are reviewed under the plenary ‘contrary to
law’ standard.” Sedgwick Ins., 47 F. Supp. 3d at 538 (quoting Haworth, Inc. v.
Herman Miller, Inc., 162 F.R.D. 289, 291 (W.D. Mich. 1995)). The Court’s review
under the “contrary to law” standard requires the exercise of independent judgment
in determining whether the magistrate judge’s legal conclusions “contradict or
ignore applicable precepts of law, as found in the Constitution, statutes, or case
precedent.” Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992), aff’d, 19
F.3d 1432 (6th Cir. 1994) (quoting Adolph Coors Co. v. Wallace, 570 F.Supp. 202,
205 (N.D. Cal. 1983)).
On July 13, 2016, Plaintiff served his First Set of Interrogatories and First
Request for Production of Documents upon Defendants. Dkt. No. 23, p. 2 (Pg. ID
115). In Interrogatories 12, 13, and 14 Plaintiff demanded that Defendants provide
information regarding other medical professions that tested positive for drugs and
alcohol, had their drug administration investigated, or were referred to the
Employee Assistance Program (EAP) instead of being terminated. Id. at 11.
Defendants objected to these Interrogatories on the basis that they were “overly
broad, ambiguous and seek information that is confidential and neither relevant
nor calculated to lead to the discovery of relevant admissible information.” Dkt.
No. 23-2, pp. 14–16 (Pg. ID 159–61). When Plaintiff filed a motion to compel
Defendants to answer the Interrogatories, Dkt. No. 23, Defendants argued that the
requests were overly broad, irrelevant, and unduly burdensome. Dkt. No. 26, pp.
9–14 (Pg. ID 206–11).
On April 11, 2017, Magistrate Judge R. Steven Whalen held a hearing on the
motion to compel and granted in part and denied in part the motion on the record.
Dkt. No. 36. On May 5, 2017, Magistrate Judge Whalen ordered Defendants to
provide responses to Interrogatories Nos. 12, 13, and 14, with the following
(1) “Medical personnel” means providers of medical services who
have direct patient contact at Henry Ford Hospital’s main campus and
the four ambulatory centers where Plaintiff worked, who were so
employed from January, 2013 to the present, and who are above the
pay grade of Nurse but below the pay grade of physician.
(2) Names, Social Security Numbers, and other personal identifying
information shall be redacted.
Dkt. No. 34, p. 1 (Pg. ID 519).
In objecting to Magistrate Judge Whalen’s resolution, Defendants arguments
mirror those they argued regarding the motion to compel: that this discovery is
overly broad, unduly burdensome, disproportionate to the case’s needs, and
contrary to law. Dkt. No. 39, p. 2 (Pg. ID 576). Plaintiff argues that Magistrate
Judge Whalen provided too narrow a group of health care providers and too limited
a time frame. Dkt. No. 38, pp. 1–2 (Pg. ID 552–53).
Essentially, the parties disagree about which of Defendants’ employees are
similarly situated to Plaintiff. In the Sixth Circuit, the key to determining whether a
“comparator” is similarly situated depends whether the individuals are similar in
all relevant respects and engaged in acts of comparable seriousness. Bobo v. United
Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012). Courts should not assume
that specific factors apply to every claim of discrimination or that comparators
must be exactly correlated with the plaintiff. Id. Instead, courts must “make an
independent determination as to the relevancy of a particular aspect of the
plaintiff’s employment status and that of the non-protected employee.” Ercegovich
v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). “[D]ifferences
in job activities [do] not destroy comparator status because such differences do not
‘automatically constitute a meaningful distinction that explains the employer’s
differential treatment of the two employees.’ ” Bobo, 665 F.3d at 751 (quoting
Ercegovich, 154 F.3d at 353).
Defendants rely on Mitchell v. Toledo Hospital for the argument that
individuals against whom a plaintiff seeks to compare himself or herself “must
have dealt with the same supervisor, have been subject to the same standards and
have engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of
them for it.” 964 F.2d 577, 583 (6th Cir. 1992). In the twenty-five years since
Mitchell was issued, the Sixth Circuit has repeatedly clarified that Mitchell’s “same
supervisor” language is not “an inflexible requirement,” but rather “depends upon
the facts and circumstances of each individual case.” McMillan v. Castro, 405 F.3d
405, 414 (6th Cir. 2005) (quoting Seay v. Tennessee Valley Auth., 339 F.3d 454,
479 (6th Cir. 2003)). See also Louzon v. Ford Motor Co., 718 F.3d 556, 563 (6th
Cir. 2013); Bobo, 665 F.3d at 751. Courts should not define “similarly situated” in
such a narrow and restricted fashion that it makes it “virtually impossible for [a]
plaintiff to make a prima facie showing.” Martin v. Toledo Cardiology
Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008).
Here, Plaintiff presented Magistrate Judge Whalen with evidence that there
was an unwritten policy wherein employees performing direct patient care were to
be terminated if they were found to be under the influence of drugs or alcohol. Dkt.
No. 38-1, p. 9 (Pg. ID 569). According to deposition testimony, this policy did not
allow for discretion to refer Plaintiff to the EAP rather than terminate him. Id. This
unwritten policy, as alleged, is contrary to Defendants’ written policy that provides
for “corrective action, up to and including termination,” as well as a possible
reference to the EAP where employees are found to be under the influence of drugs
or alcohol. Dkt. No. 27-1, pp. 4–5 (Pg. ID 234–35).
Given the facts of this case, the Court is not persuaded that the employees
with whom Plaintiff was similarly situated must have dealt with the same
supervisor. More recent precedent suggests that similarities need only extend to
relevant aspects of the case. For instance, here relevance extends to those who
were “engaged in acts of comparable seriousness,” Bobo, 665 F.3d at 751, such as
being investigated for being under the influence of drugs or alcohol while directly
caring for patients.
Of those who engaged in similar conduct, the group should then be narrowed
to employees who “were similar in all relevant respects.” Id. The Court agrees with
Magistrate Judge Whalen’s assessment that Plaintiff, a Certified Registered Nurse
Anesthetist (CRNA), is not similar in all relevant respects with physicians, who
have undergone more medical training and play a different role in patient care.
Similarly, the Court agrees what Plaintiff is not similar in all relevant respects to
registered nurses, who are not required to attain the same level of education and
training as CRNAs and perform a different role in patient care. Providers of
medical services who engage in direct patient care,1 and whose qualifications are
between the two above groups, bear similarity to Plaintiff in the relevant respects.
To require Defendants to provide records on all medical providers, regardless of
education level, position or role in patient care, would be overly burdensome and
outside the scope of the relevant inquiry. See FED. R. CIV. P. 26(b)(1).
Regarding geography, the Court finds, as Magistrate Whalen did, that
relevancy extends only to the locations where Plaintiff actually worked—Henry
Ford Hospital’s main campus and four ambulatory centers—rather than every
facility at which any of Defendants’ thousands of employees works. Finally, as to
time, Magistrate Judge Whalen limited that time period to January 2013, finding
that discovery back to 2011 was overly broad. As Plaintiff was terminated in
December 2014, discovery back to January 2013 provides him with information
for the final two years of his employment with Defendants. This time period is
temporally relevant to Plaintiff’s claims and not contrary to law or clearly
Magistrate Judge Whalen used the phrase “direct patient contact” in his Order,
Dkt. No. 34, but uniformly used the phrase “direct patient care” during the April
11th hearing where the matter was resolved. No. 36, pp. 14, 25 (Pg. ID 536, 547).
Based on the entire transcript, as well as the deposition testimony upon which the
ruling was grounded, the Order should be interpreted to apply to employees who
perform “direct patient care.” See Dkt. No. 34 (“For the reasons and under the
terms stated on the record on April 11, 2017 . . . .”) (emphasis added).
Accordingly, the Court finds Magistrate Judge Whalen’s decision to be
consistent with Federal Rule of Civil Procedure 26(b)(1), as the burden or expense
of Plaintiff’s originally proposed discovery outweighs its likely benefit. Based on
the facts in the record and current Sixth Circuit precedent, the Court will affirm
Magistrate Judge Whalen’s decision. While reasonable jurists could have reached
different results, neither party has shown that the decision is clearly erroneous or
contrary to law.
The Court has reviewed Magistrate Judge Whalen’s order, the transcript of
the hearing, and the parties’ objections, and finds there is no evidence that the
determination was clearly erroneous or contrary to law.
IT IS THEREFORE ORDERED that Plaintiff’s Appeal  and
Defendants’ Objection  are OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge Whalen’s Order is
IT IS SO ORDERED.
June 21, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
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