Joyce v. Cleveland Clinic Foundation et al

Filing 47

Memorandum of Opinion and Order For the reasons set forth herein, the Court sustains Plaintiff's objections as to Document One, the notes taken at the 3/3/2009 meeting. Document One is discoverable and shall be produced within two (2) days after the issuance of this Order. The Court overrules Plaintiff'sobjections as to the remaining documents. Judge Benita Y. Pearson on 9/29/2014. Related document(s) 28 , 31 . (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MARIANNE JOYCE,
Plaintiff,
v.
CLEVELAND CLINIC FOUNDATION, et
al.,
Defendants.

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CASE NO. 1:13cv1224

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Regarding ECF Nos. 28; 31]

On May 5, 2014, assigned Magistrate Judge George J. Limbert issued an Order resolving
the parties’ discovery dispute. ECF No. 28. Plaintiff filed an objection (ECF No. 31) and
Defendants responded (ECF No. 34). The Court has been advised, having reviewed the record,
the parties’ briefs and the applicable law. For the reasons that follow, the Court sustains
Plaintiff’s objections in part and overrules her objections in part.
I.
Plaintiff commenced this lawsuit against her previous employer, the Cleveland Clinic
Foundation (“Clinic”), then-President Joanne Zeroske, and Director of Human Resources Gloria
Donnelly. ECF No. 1-1 at 2-3, ¶¶2,4,5. Relevant to the instant dispute are Plaintiff’s
discrimination claims based on disability and hostility in the workplace due to her gender, as well
as retaliation for taking leave under the Family Medical Leave Act (“FMLA”). Id. at 11, ¶42; 12.
Specifically, Plaintiff alleges that Defendants failed to investigate and properly accommodate her

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post-traumatic stress disorder. Plaintiff’s post-traumatic stress disorder is allegedly caused by the
Clinic’s retention of employee Terrell Ford, “who was convicted of criminal charges associated
with menacing and stalking of Plaintiff and the abduction of her friend.” Id. at 3, ¶7. While
Plaintiff was on leave pursuant to FMLA, her employment was terminated. Id. at 6-7, ¶20; ECF
No. 24 at 4, ¶20.
Plaintiff seeks to compel the production of four documents that were withheld by
Defendants on the basis of attorney-client privilege— notes from a meeting and three e-mail
threads identified in the Clinic’s privilege log. ECF No. 28 at 2; ECF No. 22-1 (privilege log).
Defendants argued that the documents are privileged because they “involve communications
between in-house counsel for the Clinic and non-lawyer personnel charged with managing
Plaintiff’s medical leave and with investigating and addressing claims of impropriety relative to
non-party employee Terrell Ford.” ECF No. 22 at 2. Plaintiff argued that, “to the extent that the
documents are privileged, the Clinic has waived the privilege because the Clinic’s legal
department essentially conducted the investigation of Plaintiff’s concerns.” ECF No. 28 at 2.
The magistrate judge determined that the Clinic did not waive the attorney-client
privilege. ECF No. 28 at 5. The order explains that courts “have repeatedly held that the
attorney-client privilege attaches to communications when a request for legal assistance is
implicit in the communication and there is an expectation or intent that the attorney would render
a legal opinion on the communication if necessary.” ECF No. 28 at 4. Specifically, the order
found Christie v. Alliance Imagery Inc., No. 5:06 CV 1430, 2007 WL 1974913, at *1 (N.D. Ohio
July 3, 2007) analogous. ECF No. 28 at 5. In Christie, a human resource department conducted

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an investigation into a plaintiff’s gender discrimination complaint and occasionally
communicated with the employer’s in-house counsel regarding that investigation. 2007 WL
1974913, at *1. The court found that the attorney-client privilege had not been waived because
the investigation was conducted by the human resource department, and the employer had
produced over seven hundred pages of documents regarding the investigation. Id. at *2. In the
instant case, the magistrate judge conducted an in-camera review of the four documents Plaintiff
seeks, and found that:

the meeting notes contain legal advice given by in-house counsel that attended the
meeting. Likewise, the e-mail threads are privileged, to the extent that they reflect
the non-lawyer personnel seeking legal advice regarding the investigation of
Plaintiff’s concerns, and potential accommodations upon her return to work
following her FMLA leave. In addition to the attorney client privilege, the e-mail
threads are also privileged based upon the work-product doctrine. Accordingly, the Clinic has not
not discoverable.
ECF No. 28 at 6. The magistrate judge also noted:
Defendants have produced over 1,300 pages of documents in this action,
including Plaintiff’s medical leave file and all non-privileged communications and
notes related to Plaintiff’s complaints about Mr. Ford and the Clinic’s
investigation of Plaintiff’s concerns. Plaintiff took the depositions of six fact
witnesses, including Ms. Zeroske, Ms. Donnelly, Ms. Puntel and Mr. O’Connell,
and had an opportunity to inquire about their respective roles in investigating and
responding to the issues raised by Plaintiff. Plaintiff therefore has had ample
opportunity to discover the facts relevant to her claim, and the fact-finder will not
be deprived by the absence of the four privileged documents at issue, which were
made in confidence and for the purpose of obtaining legal advice and counsel.

Id. at 9.
Plaintiff objects to the magistrate judge’s order, arguing that it is erroneous because it
determined that (1) Plaintiff’s complaint to her co-worker in January 2009 did not constitute a

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complaint to the Clinic; (2) the Clinic’s “legal department acted merely as a liaison and did not
control the actual investigation of the January 2009 complaint”; and (3) “documents sought
concerning discussions of accommodations to Plaintiff pertained to the investigation or
administration of her FMLA.” ECF No. 31 at 4, 6, 10.
II.
When a party objects to a magistrate judge’s order on a nondispositive pretrial matter, the
district court may only reverse the magistrate judge’s decision if it is “clearly erroneous or is
contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). See also Chesher v. Allen,
122 Fed. App’x 184, at *2 (6th Cir. 2005); Freudeman v. Landing of Canton, 2010 WL 2836764,
at *1 (N.D.Ohio July 19, 2010).
III.
A. Plaintiff’s January 2009 Complaint
Plaintiff contends that she first submitted a complaint regarding Terrell Ford to the Clinic
in January 2009, when she told her “trusted co-worker” Rosemary Scholti about her problems
with Ford. Scholti, in turn, forwarded Plaintiff’s complaint to the Clinic’s in-house counsel
Shannon Jerse. ECF No. 31 at 5. It was considered an anonymous complaint.1 An investigation
ensued. Plaintiff seeks Document One, handwritten notes from a March 3, 2009 meeting

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Plaintiff states that “[a] central issue in this case is whether Plaintiff wished to be
anonymous when she made her initial report in January 2009. The manner in which the
investigation was handled and what was done to address Ms. Joyce’s concerns of a hostile work
environment and to accommodate her seems dependant on this factor.” ECF No. 31 at 3. The
magistrate judge did not decide whether Plaintiff wished to be anonymous. Instead, the Order
found that the Clinic treated the complaint as anonymous. ECF No. 28 at 7.
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between Jerse and Zeroske, Jackie Puntel and Michael O’Connell. The magistrate judge
determined that the notes are protected by the attorney-client privilege and that Defendants did
not waive the privilege. ECF No. 28 at 9.
In her objections to the magistrate judge’s order, Plaintiff argues that the order
focused on the belief that the investigation of this January 2009 report was before
Ms. Joyce made her complaint to the CCF, which is not the case. This incorrect
focus suggests why the determination that documents and information in this
investigation – “Notes from meeting with in house counsel regarding strategy for
addressing anonymous complaint about Terrell Ford[]” is privileged.
ECF No. 31 at 6. Regardless of whether the January 2009 report is considered a complaint to the
Clinic, this fact alone does not render the notes not privileged. Plaintiff offers no other
explanation for her disagreement with the magistrate judge’s order, and none is apparent to the
Court.
Next, Plaintiff objects to the magistrate judge’s finding that the human resource
department conducted the investigation. ECF No. 31 at 6. The magistrate judge found that “the
legal department’s involvement in the investigation served merely to provide legal advice upon
inquiry from the non-lawyer personnel vested with authority to undertake the investigation.”
ECF No. 28 at 8. Consequently, the magistrate judge determined that Document One is
privileged and that Defendants have not waived the privilege through the limited involvement of
the Clinic’s legal department. Id. at 9.
In her objection, Plaintiff argues that the evidence shows that the investigation was
conducted by the Clinic’s legal department. ECF No. 31 at 6-7. She provides the Court with
deposition testimony of the Clinic’s non-legal personnel—Puntel, O’Connell and

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Zeroske—explaining their involvement in the investigation. Id. at 7-8. The testimony reveals
that in-house counsel Jerse received the complaint. She contacted O’Connell, the Vice President
of Operations at Huron Hospital, and instructed him to determine if there was a background
check in Ford’s file. ECF No. 33-5 at 10. O’Connell contacted Puntel and requested she pull
Ford’s file. Id. at 9. Puntel did so and discovered there was no background check in Ford’s file.
Id. at 10. She relayed the information to O’Connell, and he passed the information on to the
legal department. Id. O’Connell testified that he did not know what further action was taken
regarding the matter. Id.
Thereafter, in an email, Puntel requested authorization from Zeroske to run a background
check on Ford, explaining that “[O’Connell] asked me to call and get a background check run.”
ECF No. 33-8 at 1. Zeroske approved the background check. Id. Zeroske testified that she had
no further involvement in the investigation. She testified that “Shannon [Jerse] was handling the
matter.” ECF No. 25-10 at 5. She also testified that she never found out if an initial background
check on Ford had been run “[b]ecause legal was handling it, and I figured Shannon would take
care of it.”2 Id. When asked whether there was an investigation that had been completed after
she approved the background check, Zeroske testified “I’m sure there was because Shannon Jerse
was involved in it. And she would have gone further with it.” Id. at 6.
Puntel testified that she had no further involvement in the investigation beyond pulling
the file and getting the background check authorized. ECF No. 33-7 at 38. She testified that

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It is not clear if an initial background check on Ford had been run at the time he was
hired and the report was not in the file, or whether a background check had never been run on
Ford. See, e.g., ECF No. 25-10 at 5 (Zeroske deposition).
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“[t]he legal department was contacting people to take—to manage the investigation. They
contacted Michael [O’Connell].” Id. at 12. O’Connell testified that he had no further
involvement in the investigation other than instructing Puntel to check Ford’s file. ECF No. 33-5
at 12-13.
Puntel and Zeroske’s testimony describes that legal was conducting the investigation.
See, e.g., ECF Nos. 33-7 at 12 (Puntel’s deposition: “legal was handling it,” agreeing that “legal
was directing”); 25-10 at 5 (Zeroske’s deposition: “Shannon [Jerse] was handling the matter”;
“legal was handling it,” agreeing that it was “out of [Zeroske’s] control”). O’Connell repeatedly
testified that he did not know the parameters of the investigation. See, e.g., ECF No. 33-5 at 18
(“I can only say what my part in the investigation was. I don’t know what the rest was.”).
Although Defendants submit that the Clinic’s legal department was merely advising the
human resource department’s investigation, the record is clear that Puntel, O’Connell and
Zeroske received explicit and simple instructions from Jerse, which they carried out. They
reported the findings back to Jerse. Puntel, O’Connell and Zeroske testified that they have no
knowledge of further action. Id. at 13, 18; 33-7 at 34; 25-10 at 5. The evidence, therefore, does
not support Defendants’ contention that the investigation was conducted by non-legal personnel.
Instead, the evidence supports Plaintiff’s argument that the legal department was conducting the
investigation.
There is no evidence of “give-and-take communications” between legal counsel and
human resource personnel. See Wilkinson v. Greater Dayton Reg’l Transit Auth., 2014 WL
953546, at *3 (S.D.Ohio March 11, 2014) (“give-and-take communications” between legal

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counsel and defendant protected by the attorney-client privilege). Nor is there evidence that the
human resource department occasionally consulted with in-house counsel for legal advice or
made employment decisions. See Christie, 2007 WL 1974913, at *1 (“Defendant’s investigation
was conducted by a member of its Human Resources Department, who, upon occasion consulted
with in-house counsel for legal advice. Defendant’s attorneys did not make any of the
employment decisions involved in this case.” (internal quotation marks and citation omitted)).
Instead, the Clinic’s legal department conducted the investigation and occasionally enlisted nonlegal personnel to carry out simple, administrative tasks.
Because the legal department conducted the investigation into the January 2009
complaint, the notes taken during the March 3, 2009 meeting between Jerse, Puntel, O’Connell
and Zeroske are discoverable. Plaintiff’s objections to the magistrate judge’s order regarding the
attorney-client privilege pertaining to Document One are sustained.
B. Documents Concerning Discussions of Accommodations
Plaintiff contends that the “Order is erroneous in the determination that documents
sought concerning discussions of accommodations to Plaintiff pertained to the investigation or
administration of her FMLA.” ECF No. 31 at 10. Plaintiff explains that:
[i]n several instances in the Magistrate’s [Judge’s] Order, [he] states that a party
does not waive attorney-client privilege when its in-house legal department
investigates its employee’s FMLA leave. The identification of the documents in
question do not involve the investigation or administration of Ms. Joyce’s FMLA.
Id.
At the time the emails that Plaintiff seeks were sent, Plaintiff was on FMLA leave. The
magistrate judge, after conducting an in-camera review, found that

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the e-mail threads are privileged, to the extent that they reflect the non-lawyer
personnel seeking legal advice regarding the investigation of Plaintiff’s concerns,
and potential accommodations upon her return to work following her FMLA
leave. In addition to the attorney-client privilege, the e-mail threads are also
privileged based upon the work-product doctrine. Accordingly, the Clinic has not
waived the privilege, and, therefore, the documents at issue are not discoverable.
ECF No. 28 at 6. Although Plaintiff describes to the Court why it seeks these documents, she
does not explain why the documents are discoverable notwithstanding the attorney-client
privilege or the work-product doctrine. The passage cited above does not reflect that the
magistrate judge determined that the documents pertained to the investigation or administration
of Plaintiff’s FMLA leave, as Plaintiff alleges. In short, Plaintiff has not shown that the
magistrate judge’s order pertaining to Documents Two, Three, and Four are clearly erroneous or
contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). Plaintiff’s objections are
overruled.
IV.
For the reasons explained above, the Court sustains Plaintiff’s objections as to Document
One, the notes taken at the March 3, 2009 meeting. Document One is discoverable and shall be
produced within two (2) days after the issuance of this Order. The Court overrules Plaintiff’s
objections as to the remaining documents.

IT IS SO ORDERED.

September 29, 2014
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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