Kaczmarek v. Res-Care, Inc. et al

Filing 27

Memorandum Opinion and Order: Angelique Kaczmarek's Motion to Compel & Motion to Extend Discovery Deadline (Doc. 21 ) is GRANTED IN PART and DENIED IN PART. The Court directs plaintiff to file more narrow requests consistent with this Opinion within fourteen (14) days of this Order. Judge Patricia A. Gaughan on 7/10/14. (LC,S) re 21

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Angelique Kaczmarek
Plaintiff,
Vs.
Res-Care, Inc.
Defendant.

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CASE NO. 1:13 CV 1959
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon Plaintiff Angelique Kaczmarek’s Motion to
Compel & Motion to Extend Discovery Deadline (Doc. 21). This case arises out of plaintiff’s
former employment with defendant. For the reasons that follow, the motion is GRANTED IN
PART and DENIED IN PART.
Facts
Plaintiff, Angelique Kaczmarek, brings this action against defendant, Res-Care Inc.,
her former employer, for retaliatory discharge and sexual harassment. Defendant provides
residential and support services for seniors and people with disabilities. Plaintiff was
employed by defendant as an Executive Director in its Chesterland, Ohio office.
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Plaintiff alleges that she was terminated shortly after she reported sexual harassment
by another of defendant’s employees, Arthur Finch (“Finch”), at a March 2013 conference in
Texas. Finch was a Regional Human Resources Director for defendant and worked out of its
offices in Georgia and Kentucky. As Human Resources Director, Finch provided HR support
services for and supervised local HR managers and Executive Directors for 64 of defendant’s
facilities in 26 states. Finch supervised plaintiff’s HR-related work in Ohio through email and
telephone. Plaintiff reported the sexual harassment to her supervisor, Tonya Mangerie
(“Mangerie”), the next day at the conference. Mangerie told Finch of plaintiff’s complaint.
Shortly after plaintiff had reported his conduct, Finch approached plaintiff and began
questioning her about the complaint in front of her colleagues.1
Defendant suspended plaintiff’s employment on April 8, 2013, less than one month
after she reported Finch’s actions. Plaintiff was terminated one week later. Defendant alleges
that plaintiff was terminated for not properly implementing its Safe Water Temperature Policy
(“Safe Water Policy”), which works to ensure safe water temperatures at sites defendant
owned, leased, or managed. (Doc. 22-6). This led to a 71-year old individual with
developmental disabilities, JM, being scalded in his bathtub. Plaintiff maintains that the Safe
Water Policy never applied to “supported living” clients cared for in their own homes like
JM. Plaintiff contends that defendant’s offered grounds for her termination—that she failed
to properly train defendant’s employees on the Safe Water Policy—are pretextual.
This matter is before the Court upon plaintiff’s motion to compel the production of
documents she sought in discovery and to extend the discovery deadline. Defendant opposes
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This Court previously dismissed Finch as a defendant because of a lack of
personal jurisdiction over him. (Doc. 13).
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the motion.
Discussion
I. Motion to Compel
Plaintiff seeks to compel discovery of the following items.2
 Reports of Critical Incidents from the Critical Incident Database;
Corresponding Disciplinary Records and Emails Concerning Critical Incidents and Any
Discipline Related Thereto
Plaintiff initially requested all critical incident reports (“CIR”) and disciplinary
investigations/corrective actions from January 1, 2012 to December 31, 2013. Defendant
responded that these requests are overbroad as there were over 15,000 CIRs during this time
period. In her motion, plaintiff asks for a listing of all incidents for this two-year period
where discipline or corrective action was taken. Plaintiff maintains that without knowledge
of other incidents of alleged violations of any policy that led to a client’s injury, she cannot
limit her request to specific CIRs. Defendant states that it cannot search the CIRs to see if
they resulted in discipline. Plaintiff was not terminated as the result of a CIR, but rather the
CIR was the means through which defendant learned that plaintiff was not implementing the
Safe Water Policy. Moreover, defendant objects that the request seeks records beyond
plaintiff’s decisional unit and requests information that is not comparable to the scalding
incident with JM.

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The Court rejects defendant’s argument that it should not consider plaintiff’s
motion to compel for failure to follow the procedures outlined in Local Rule 37.1.
Plaintiff apprised the Court and opposing counsel that there was disagreement
about document production in advance of submitting the instant motion.
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Upon review, the Court agrees that plaintiff’s request is overly broad. However, the
Court finds that the documents could be relevant to plaintiff’s claim and directs plaintiff to
submit a narrower request.
Plaintiff has also asked for the “disciplinary investigations and records for all other
managerial persons and/or Executive Directors who have been disciplined for violating any
company policy.” (Doc. 21 p. 11). Defendant responds that plaintiff’s request is overly broad
and unduly burdensome as it would have to search all of its managers’ files. This request
calls for records of any and all violations of defendant’s policies, no matter how trivial or
different from plaintiff’s conduct. Given the heightened privacy interests at issue in these
personnel files, defendant asserts that this request exceeds the scope of discovery. Upon
review, the Court agrees that plaintiff’s request is too broad. Plaintiff is directed to narrow
her request.
Plaintiff requests documentation related to several other critical incidents, including a
client dying after chocking on food that was provided in a manner that violated policy,
physically losing track of a client, failure to respond to a sexual harassment claim, and leaving
a client unattended in a theater. (Doc. 21 p. 12). Defendant responds that these examples are
“pure speculation” and are unrelated and dissimilar to the circumstances that lead to
plaintiff’s termination. Upon review, the Court grants plaintiff’s motion to compel the
production of documents related to the incidents identified by plaintiff.
Plaintiff acknowledges that defendant provided her with emails related to other critical
incidents. However, plaintiff asserts that the emails were redacted so that only the to/from
information and the date and time were provided. The body of the emails was redacted in its

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entirety so plaintiff was unable to ascertain the nature of the incident or if any discipline
occurred. (Doc. 23-13). Plaintiff avers that this was entirely unnecessary given that the
parties had entered into a protective order. Defendant did not offer any explanation. The
Court orders defendant to produce the unredacted emails to plaintiff.
B. Water logs (initial and daily) for any supported living/non-group homes;
Safety Committee meeting minutes/agendas; Client Admission Files
Plaintiff seeks to compel defendant to produce all water logs generated pursuant to
defendant’s Safe Water Policy. Plaintiff contends that while defendant has produced water
logs, they are primarily for the time period of September 2013 to December 2013, and none
are for “supported living” clients in their own home. Defendant responds that it has already
produced all of the water logs for 2011 to 2013. (Doc. 22 p. 5 n. 1). Based upon this
representation, the Court will not compel any further response.
Plaintiff seeks safety committee meeting minutes and agendas because defendant is
asserting that plaintiff never reviewed any water logs which led to her failure to implement
the Safe Water Policy for which she was terminated. Plaintiff contends that the water logs
would have been reviewed as part of the safety committee meeting minutes and she therefore
seeks these documents to refute defendant’s claim. Defendant contends that plaintiff did not
request these documents. Upon review, the Court grants plaintiff’s motion to compel the
production of these documents.
Plaintiff requests production of client admission files. Defendant responds that
plaintiff’s request is too broad, burdensome, and contains information protected by HIPPA.
In reply, plaintiff offered to limit her request to client admission files of “any supported living

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client in their own home to which the hot water policy applied from January 1, 2011-April 15,
2013.” (Doc. 23 p. 19). Plaintiff argues that this request is not overly broad as only a few
offices handle supported living clients. Upon review, plaintiff’s motion is granted.
Defendant is ordered to produce client admission files for supported living clients in
accordance with plaintiff’s narrower request in her reply brief.
C. Manager meeting minutes/agendas and Documentation of Training Provided
Plaintiff moves to compel the production of documents related to the manager’s
meetings. Plaintiff contends that the training she provided to staff would be represented in
the agenda and minutes from these meetings, and that this goes directly to defendant’s claim
that plaintiff failed to implement the Safe Water Policy. Records of these meetings were
maintained by Nancy Wilson in a database and by Terry Rose in a spreadsheet. Additionally,
agendas attached to sign-in sheets were maintained by plaintiff in binders in her office.
Defendant responds that plaintiff did not request these documents. Upon review, the Court
disagrees and grants plaintiff’s motion.
D. Documents relating to any investigation pertaining to the
suspension/termination of Plaintiff and the Final Report Regarding Same
Plaintiff requests that the Court compel the production of the “final report ” from the
investigation surrounding plaintiff’s termination, which plaintiff contends should have been
created in accordance with defendant’s policies. (Doc. 21 p. 17-18; Doc. 23 p. 11). Defendant
responds that it does not know what plaintiff means by “final report,” but it has already
produced all responsive documents to this request. Therefore, the Court will not compel any
further response.

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E. The Final Report Concerning the Sexual Harassment Investigation
Similarly, plaintiff requests the Court compel the production of the “final report” from
the investigation surrounding plaintiff’s harassment claim against Finch. (Doc. 21 p. 17-18;
Doc. 23 p. 11). Defendant again responds that it does not know what plaintiff means by “final
report,” but it has already produced all responsive documents to these requests.
Consequently, the Court will not compel any further response.3
F. Emails between Finch/Mangerie; Cell Phone records relating to Finch and
Mangerie
Plaintiff has requested any correspondence between Mangerie and Finch from 2010 to
the present. Defendant responds that these documents were produced on June 10, 2014.
Plaintiff argues that this late response is still incomplete because the correspondence that
defendant did provide indicates that there should be other communications between Finch and
Mangerie that have not been provided. For example, an email from Mangerie to Finch on
April 8, 2013 has Mangerie telling Finch “I just put her [plaintiff] on leave and need to bring
you up to speed.” (Doc. 23-1). Plaintiff argues that one would expect there to be a record of
some communication after this email. However, defendant only produced phone records from
after April 15, 2013—the day plaintiff was terminated—and contends that no other emails
exist.4 Similarly, there is an April 8, 2013 email from David Folkner to Mangerie concerning
3

Plaintiff also requested that the Court compel the production of information
regarding Finch’s termination. However, defendant produced Finch’s resignation
letter following the motion to compel and plaintiff withdrew her request for this
documentation.

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Plaintiff did not originally move to compel the production of phone records as
defendant had indicated it would produce records for March and April 2013.
Subsequently, defendant only produced records from April 15, 2013 onward.
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plaintiff’s employment agreement. According to the email, it was forwarded to Mr. Folkner
by Finch. Finch’s original email was not provided to plaintiff.
Upon review, defendant is ordered to search again for any other emails.5 If any are
found, they are to be turned over immediately to plaintiff. Additionally, defendant is ordered
to search again for any phone records from before April 15, 2013 that meet defense counsel’s
original promise to turn over phone records from March and April 2013. (Doc. 23-2).
G. Personnel files for: Jay Naeem; Tonya Mangerie; Gloria Llewelyn; Shelly
Duplin; Wesley Sears; Coy Lightfoot; Dave Falkner; and Craig White
Plaintiff requests that she be provided with the personnel files of some her supervisors
and other individuals responsible for training or implementing the Safe Water Policy. Jay
Naeem was plaintiff’s former direct supervisor. Mangerie was plaintiff’s supervisor at the
time she was terminated. Dave Folkner was one of plaintiff’s supervisors. Craig White was
Finch and plaintiff’s superior. Gloria Llewelyn, Shelly Duplin and Wesley Sears were
Executive Directors. Coy Lightfoot was defendant’s director of purchasing and, according to
plaintiff, responsible for training, supervising or implementing the Safe Water Policy.
Plaintiff maintains that these personnel files will demonstrate the training that these
individuals received which is not consistent with the training plaintiff received on the Safe
Water Policy. Moreover, they will demonstrate that she was the only one disciplined for not
properly implementing the Safe Water Policy. Defendant objects that plaintiff is seeking
broad indiscriminate discovery. The Court disagrees. The personnel files plaintiff is seeking

Plaintiff in her reply brief requests records from March and April 2013.
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The Court declines to order the forensic search of defendant’s computers
requested by plaintiff.
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relate to her claims. Consequently, the Court grants plaintiff’s motion to compel.
H. Plaintiff’s Entire Personnel File
Plaintiff maintains that defendant has not produced all of her personnel file.
Defendant has represented to the Court that plaintiff took her personnel file when she was
terminated and, therefore, the documents cannot be produced. However, after the discovery
deadline had passed, defendant produced an email dated March 20, 2012 from Cherie Ihnen to
plaintiff and Finch in which she instructs plaintiff to send her personnel file to Finch as her
“NEW Regional HR Director.” (Doc. 23-6). The Court orders defendant to produce the
personnel file in its entirety.
I. Prior Versions of the Safe Water Policy and Attachments to the Email Dated
September 19, 2012 between Jay Naeem and Plaintiff
Plaintiff requests that this Court compel the production of any prior or later versions
of the Safe Water Policy. Defendant states that it has produced the Safe Water Policy issued
in 2011, and that this is the only version of the policy. Given defendant’s representation on
this matter, plaintiff’s motion to compel is denied.
Plaintiff requests that defendant provide the attachment to an email Jay Naeem sent to
plaintiff. Defendant responds that it has already provided this attachment. (Doc. 22 p. 6).
Plaintiff requests that defendant provide the Bates number of this attachment, because she
maintains that the attachment has not been produced. Upon review, the Court directs
defendant to provide plaintiff with the Bates number of this attachment.
J. Defendant’s Complete File Concerning JM
Plaintiff seeks defendant’s complete records concerning JM. Specifically, plaintiff

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contends that there should be an intake sheet, notes from caregivers, billing sheets, and other
documentation. Plaintiff argues that these documents would show that JM was not subject to
the hot water policy and that no shower/bathing services were being provided to him by
defendant. Defendant responds that it provided plaintiff with JM’s Individual Service Plan
along with reports regarding his scalding accident. Upon review, the Court grants plaintiff’s
motion to compel the production of JM’s file in its entierty.
II. Motion to Reopen Discovery
Finally, plaintiff moves to reopen the discovery period. Defendant has contended that
Finch, defendant’s then Human Resources Director, did not have any supervisory authority
over plaintiff. (Doc. 5-2). Defendant maintains that Finch did not participate in the decision
to terminate plaintiff’s employment. (Doc. 5-2). Additionally, defendant has stated that Finch
was terminated from his employment. (Doc. 5-1 p. 2). After the close of the discovery
deadline, the following documents were turned over to plaintiff:
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An email directing plaintiff to send her personnel file to Finch, her “NEW
Regional HR Director.” (Doc. 23-6).

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An email from Mangerie to Finch stating: “I just put her [plaintiff] on leave
and need to bring you up to speed.” (Doc. 23-1).

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An email from one of defendant’s employees to Mangerie on the day plaintiff
was suspended that was forwarded to him from Finch, with Finch’s portion of
the message missing. (Doc. 23-3).

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Finch’s letter of resignation. (Doc. 23-7)

Plaintiff has requested that the discovery deadline be reopened and that she be allowed

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to redepose all previous deponents as to any and all materials submitted after the date of their
respective depositions. Upon review, the Court is deeply concerned that these documents
were not produced until after all the witness depositions had been completed. The Court will
reopen discovery until September 30, 2014. Plaintiff may redepose deponents on the
materials turned over after their depositions.6
Conclusion
For the reasons set forth above, Angelique Kaczmarek’s Motion to Compel & Motion
to Extend Discovery Deadline (Doc. 21) is GRANTED IN PART and DENIED IN PART.
The Court directs plaintiff to file more narrow requests consistent with this Opinion within
fourteen (14) days of this Order.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 7/10/14

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The Court declines to award fees and costs.
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