Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Benney v. Midwest Health, Inc.

United States District Court, D. Kansas

July 12, 2019

HEATHER BENNEY, Plaintiff,
v.
MIDWEST HEALTH, INC., et al., Defendants.

          MEMORANDUM & ORDER ON MOTION TO COMPEL

          HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE.

         Now before the Court is Plaintiff's Motion to Compel Discovery. (Doc. 104.) Having reviewed the submissions of the parties, Plaintiff's motion is GRANTED in part and DENIED in part as more fully set forth below.

         FACTUAL BACKGROUND

         In the present action, Plaintiff contends she was formerly employed as Director of Nursing at the Lexington Park facility from December 2012 through September 2015. She alleges she injured her arm, shoulder, and back while assisting a resident of the facility at work in April 2015. This resulting in the filing of a worker's compensation claim. She contends that the terms and conditions of her employment worsened as a result, ultimately leading to the termination of her employment.

         In her federal court Complaint, Plaintiff generally alleges she was subject to disparate treatment, hostile work environment, denial of a reasonable accommodation for her disability, and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12111, et seq. (See Doc. 1.) She also alleges workers' compensation retaliatory discharge. (Id.) Plaintiff contends that each of the Defendants[1] was her employer and that all engaged in the unlawful discrimination and retaliation. Defendants generally deny Plaintiff's allegations.

         Plaintiff files the present motion requesting the Court enter an Order compelling Defendant Lexington's full response to Plaintiff's Interrogatories 18, and 21; Defendant Midwest's full response to Interrogatories 15, 18, 20, 21, 22, 23, 24, and 25; Defendant Lexington's full response to Request for Production 65, 66, 67, 68, 73, 74, 77, 78, 79, 85, 86, 87, and 88; and Defendant Midwest's full response to Request for Production 68, 73, 81, 82, 86, 87, 88, 89, 90, 95, 96, 98, 104, 105, and 106. (Doc. 104.) Based on Plaintiff's representations, the Court is satisfied that the parties adequately conferred regarding the disputed discovery, although they were unable to resolve their disagreements.

         ANALYSIS

         I. Legal Standards.

         Fed.R.Civ.P. 26(b) states that

[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at state in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

         As such, the requested information must be nonprivileged, relevant, and proportional to the needs of the case to be discoverable. Holick v. Burkhart, No. 16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).

         II. Disputed Discovery Requests.

         A. Interrogatory No. 15 to Midwest.

         This Interrogatory asks if Plaintiff was “told there were concerns regarding her sharing and/or showing emails and/or text messages on or before September 17, 2015?” (Doc. 104-3, at 1-2.) Defendant Midwest was instructed to “describe each reason” Plaintiff was so informed. (Id.) Defendant responded that there were “two basic concerns” regarding the Interrogatory.

The first was that plaintiff did not need to share all matters pertaining to her employment and work in email with multiple individuals when she only needed to address things to her supervisor and second, at that time she had a one hour per day typing restriction and was spending her time typing rather lengthy emails instead of completing the reports that she was requested to focus her energies on. However, while communications may have been discussed with Ms. Benney at various times prior to September 17, 2015, there was not any disciplinary or corrective action taken by the [D]efendant at any time prior to September 17, 2015 pertaining to her emails.

(Id., at 2.)

         Plaintiff complains that this answer is nonresponsive. (Doc. 104, at 7.) As Plaintiff points out, Defendant Midwest's response indicates that communications “may” have happened. (Id.) Defendant argues that the answer is “responsive … to the best of Midwest's abilities.” (Doc. 114, at 2.) The Court agrees with Plaintiff, however, that the answer is not fully responsive. As Plaintiff states, “either the conversations happened to the Defendant's knowledge, or they did not.” (Doc.104, at 7.) This portion of Plaintiff's motion is GRANTED and Defendant Midwest is instructed to respond to this Interrogatory in a manner that removes such qualifying language.

         B. Interrogatory No. 18 to Midwest.

         Interrogatory No. 18 asks whether Defendant Midwest employed “regional nurses” in 2014 and 2015. (Doc. 104-3, at 3.) Defendant was then asked, if the answer was “no, ” to “identify the entity which you contended employed the regional nurses who oversaw Defendant's facilities.” (Id.) Defendant responded that “Regional Nurses have worked for Midwest Health Consulting, Inc. which provides services to Midwest Health.” Plaintiff again complains that this answer is nonresponsive. As Plaintiff indicates, Interrogatory No. 18 first seeks a yes or no answer to a specific question. (Doc. 104, at 7.)

         Plaintiff contends that “[f]rom Defendant's stated answer it is unclear whether the Defendant asserts that the regional nurses were employed by Midwest Health Consulting Inc. in 2014 and 2015.” (Id.) “Rather, the answer vaguely states that the Regional Nurses have worked for that entity, but does not define the time period.” (Id.) Defendant Midwest argues that the answer “is responsive to the question as written” because it “directly identifies the employer for the Regional Nurses in the in time period specified by the Plaintiff.” (Doc. 114, at 2.) The Court GRANTS in part Plaintiff's motion as to Interrogatory No. 18 and instructs Defendant to supplement its response to include a “yes or no” answer to the first portion of Plaintiff's inquiry.

         C. Interrogatory No. 20 to Midwest.

         Interrogatory No. 20 asks Defendant Midwest to “[d]escribe each step Defendant has taken to assess Marie Vogel's cell phone privacy settings and each step Defendant has taken to install safety precautions on Marie Vogel's cell phones, and state the date of each action taken.” (Doc. 104-3, at 3-4.) Defendant responded that its “IT department works with employees to set up the phones with secured access to an internal network email which is continually upDated: the network level as needed. This included setting a passcode when originally presented to IT for Ms. Vogel to enter in information.” (Id.)

         Plaintiff again complains that Defendant's Answer is not fully responsive.

First, the Interrogatory asks for the date of each action taken. No. dates have been provided. Second, the Answer refers to a passcode, but does not state what the passcode is to, or the date the passcode was set up. Third, the Answer does not explain what steps are taken to give secure access to the internal network email, and the Answer does not explain whether, or when, this was done with Ms. Vogel. Fourth, the Answer does not explain what continued updates are done at the network level.

(Doc. 104, at 8.) The Court agrees with Plaintiff. Defendant's response describes steps it generally takes regarding employee cell phones. It does not relate specifically to steps taken regarding Plaintiff nor does it provide specific dates, as requested. Plaintiff's motion is GRANTED as to Interrogatory No. 20 and Defendant Midwest is instructed to provide a complete response.

         D. Interrogatories 21 to Midwest and 18 to Lexington.

         These Interrogatories ask Defendants Midwest and Lexington to “[i]dentify each rule, regulation, policy, or procedure Defendant contends Plaintiff failed to follow or adhere to while working for Defendant, and describe the reason(s) Plaintiff failed to follow them.” (Doc. 104-3, at 4; Doc. 104-2, at 2.) Defendants responded, “[t]his interrogatory is similar to and addresses the issues that the Court appears to have dealt with as part of the Motion to Compel, for interrogatory No. 11 which is to be supplemented as required by the Court order by December 19, 2018.” (Doc. 104-3, at 4-5; Doc. 104-2, at 3.) Defendants also referred Plaintiff to a lengthy list of documents. (Id.) Defendants concluded their responses by stating that “[a]s to the reasons plaintiff failed to follow such rules, regulations, policies and procedures, only plaintiff can describe the reasons why that is.” (Id.)

         Plaintiff contends that Interrogatories do “not ask for Defendants' opinion as to why Plaintiff believes she failed to follow the policies.” (Doc. 104, at 9.) Instead, according to Plaintiff, the Interrogatories are “directed towards to Defendant [sic], clearly asking Defendants what the reasons were underlying the policy violations.” (Id.)

         As worded, the Interrogatories clearly ask Defendants to “describe the reason(s) Plaintiff failed to follow” rules and policies while working for Defendant. The Court finds this portion of Plaintiff's Interrogatory to be improper. As Defendants argue, the interrogatory, as written, “clearly asks for the reasons the Plaintiff failed to follow such rules, regulations, policies and procedures.” (Doc. 114, at 4.) The Court agrees. Plaintiff, rather, than Defendants, would be the person to indicate why she did not follow a given rule or policy. Defendants are, however, instructed to enumerate each rule, regulation, policy, or procedure they contend Plaintiff failed to follow or adhere to while working for Defendant. As such, this portion of Plaintiff's motion is GRANTED in part and DENIED in part.

         E. Interrogatory 22 to Midwest.

         Interrogatory No. 22 asks Defendant Midwest to “[i]dentify each employee who has ever taken documentation containing patient names off of Defendant's premises and state the reason(s) the employee did this.” (Doc. 104-3, at 5.)

Defendant responds that [t]his cannot be answered as the question is posed, as it contains no time frame as a reference for answering the same, does not define premises or what is being sought as a premises, and is not limited to any particular aspect of the companies [sic] affairs of which Midwest Health is involved in many different contract relationships with many different entities over multiple states. For example, certain employees of this Defendant would go to various nursing homes or other businesses which contracted with Midwest Health, Inc., and would view records at the location of the business that contracted with Midwest Health, Inc. If we are considering the premises to be the Midwest Health corporate office building, then this would be considered offsite from the main building of Midwest Health, Inc. In addition, most medical records were electronic at the time plaintiff was terminated, and thus individual may be considered to be viewing documentation offsite if they viewed this record on a secured and authorized electronic platform from any location other than in the Midwest Health Building, which again would include the building of the contracting party. Moreover, during the course of this [D]efendant's existence, medical records were not always electronic and thus the entire platform under which medical records existed has changed and attempting to determine that at this point is not necessarily practical, possible or relevant to this litigation. Simply put, without further refinement, the question cannot be answered with any degree of accuracy.

(Doc. 104-3, at 5-6.)

         In her letter of April 5, 2019, Plaintiff agreed to limit the scope of this Interrogatory as follows: “For the years 2014-2015, please identify each employee who has ever taken documentation containing patient names outside of any building owned by any Defendant, and state the reason(s) the employee did this.” (Doc. 104-6.) Defendant still refused to respond to the interrogatory, arguing that it remains facially overbroad because it “still encompasses every building owned by any of the [D]efendants.” (Doc. 114, at 5.) According to Defendant Midwest, the task of identifying “every employee who has ever taken documentation containing patient names outside of these buildings is so overly broad that it renders the request impossible to answer.” (Id.) Defendant continues that “[i]n the regular course of business it is foreseeable, and practical, that employees have taken such documentation outside of the many buildings owned by the Defendants” and “[t]here is absolutely no way for the Defendants to identify every [such] instance.” (Id.)

         Plaintiff replies that Defendant's response “demonstrates its refusal to make a good faith attempt to respond.” (Doc. 119, at 4.) For instance, Plaintiff complains that Defendant has failed to identify what “‘practical' reasons there are for documentation to be taken out of the buildings, and which employee(s) would be authorized to take the documentation out of the buildings.” (Id.) The Court notes, however, that the interrogatory did not ask for such specifics to be provided.

         The Court agrees with Defendant and finds that Interrogatory No. 22, as worded, is ambiguous, overly broad, and not proportionate to the needs of this case, even with the limitations proposed in Plaintiff's golden rule letter. This portion of Plaintiff's motion is DENIED.

         F. Interrogatory No. 23 to Midwest.

         Interrogatory No. 23 asks Defendant Midwest to “[s]tate the reasons for assigning an employee to sit with Plaintiff while she was working in the corporate conference room in September 2015 and describe the specific actions, if any, the employees took to assist Plaintiff while assigned sit with her.” (Doc. 104-3, at 6.) Defendant responded that

In part it was to ensure that plaintiff was working toward completion of the outstanding reports and to assist the plaintiff (as practical under the circumstances) in completing the reports. In addition, it ensured that plaintiff did not violate the work restrictions, got to take her breaks as needed, and that there was someone present if plaintiff needed anything.

(Id.)

         Plaintiff contends that the response “provides half of the information sought by the Interrogatory, but does not answer the portion seeking a description of ‘the specific actions, if any, the employees took to assist Plaintiff while assigned sit with her.'” (Doc. 104, at 12.) Defendant argues that assigning a person “to assist the plaintiff (as practical under the circumstances) in completing reports” as stated in the response “describes the specific action” taken. (Doc. 114, at 6.)

         The Court does not agree with Defendant. Rather, the Court finds that Defendant's response provides only the most general - rather than “specific” - description of the actions taken by this employee to assist Plaintiff. Defendant is instructed to provide a supplemental response curing this deficiency. This portion of Plaintiff's motion is GRANTED.

         G. Interrogatory 24 to Midwest.

         Interrogatory No. 24 asks Defendant Midwest to “[i]dentify each DON and facility Administrator from any facility who was terminated during the Relevant Period and state the reason(s) for termination.” (Doc. 104-3, at 6.) Defendant objected that “a reasonable time period is only from 3 years prior to [P]laintiff's termination to 2 years after her termination.” (Id. (citation omitted).) Defendant also objected that each of its facilities “is different with different levels of income and care serviced, and different staffing issues unique to each facility, ” and “may address discipline for its employees differently, ” making such terminations irrelevant to Plaintiff's claims. (Id.) Defendant contends that “[a]s it is written, this interrogatory is facially invalid and the prospective relevance of such materials is not proportional to the needs of the case.” (Id.) That stated, Defendant provided a list of administrators and Directors of Nursing who “have been terminated from the skilled nursing side.” (Id.)

         As an initial matter, Plaintiff contends that Defendant's objections were waived “as they were not stated within the time period Defendant had to respond to discovery.” (Doc. 104, at 13.) Plaintiff contends that Defendants' discovery responses were due to Plaintiff on November 26, 2018, but were not served until a later date and that the extension was not requested until after this deadline had passed. (Id.) Defendants respond that they were given an extension of December 7, 2018, to respond to the discovery, and therefore did so in a timely manner. (Doc. 114, at 6.)

         The Court notes that Defendants explained in their initial motion for an extension that the reason the request was not filed before the deadline had expired was because defense “counsel's office was closed on November 26, 2018 due to weather.” (Doc. 72, at 1.) The Court subsequently found this initial request for an extension to be moot because Defendants filed an additional request for an extension, which the Court granted, and therefore the Court did not address the substance of the initial motion or the mentioned weather delay. (See Docs. 76 and 77.) That stated, the Court now finds that Defendants had an adequate explanation for the one-day delay in filing its initial request for an extension. As such, the Court overrules Plaintiff's contention that Defendants' objections were waived as untimely.[2]

         Plaintiff also argues that Defendant Midwest's response is improper because it is provided subject to an objection. (Doc. 104, at 13.) As this Court has previously held, “[a]nswering discovery requests ‘subject to' objections is ‘manifestly confusing (at best) and misleading (at worse), and has no basis at all in the Federal Rules of Civil Procedure.” Great Plains Ventures, Inc. v. Liberty Mut. Fire Ins. Co., No. 14-1136-JAR, 2015 WL 4044977, at *2 (D. Kan., Jan. 29, 2015) (citing Sprint v. Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, No. 11-2684, 2014 WL 545544 at *2 (D. Kan. Feb. 11, 2014)).

         Defendant responds that it “did not respond to Interrogatory 24 subject to an objection.” (Doc. 114, at 6.) Rather, according to Defendant, it

raised the objections to Interrogatory 24 within the Response, noting that a ‘list of Admins and DONS that have been terminated from the skilled nursing side has been provided as part of the documents in the case' as supportive of the Defendant's objections that Interrogatory No. 24 is requesting discovery that the prospective relevance of such materials is not proportional to the needs of the case. The previously produced list of Admins and DON's that have been terminated from the skilled nursing side is not offered as a Response to the Plaintiff's Interrogatory 24, it simply points out that the Defendant has previously provided the materials that are relevant and proportional to the needs of the case, as set out within the scope of relevance as defined under Fed.R.Civ.P. 26.

(Id., at 6-7.) The Court agrees with Defendant that the list is not offered as a response to the discovery request at issue, but rather is a reference to proportional information that has previously been provided by Defendant. The Court also notes that Plaintiff does not address Defendant's explanation in her reply brief. (See Doc. 119, at 5-6.) The Court thus overrules Plaintiff's contention that Defendant stated an improper “subject to” objection to this discovery request.

         Finally, Defendant Midwest contends that Plaintiff has not “demonstrate[d] the relevance of this request.” (Doc. 114, at 7.) Plaintiff argues, however, that the objections are inapplicable because the discovery request was “posed to Midwest, who was responsible for terminating the Admins and DONs at the various facilities” and therefore involves “the same decision makers regarding all terminations.” (Doc. 104, at 13.)

         The Court finds Plaintiff's Interrogatory No. 24 to be relevant and proportional to the needs of the case as it seeks information regarding similarly situated employees who were terminated by the same decision-makers. This portion of Plaintiff's motion is GRANTED. Plaintiff's inquiry is, however, limited to the time frame of three years prior to her termination until the present.

         H. Interrogatory 25 to Midwest.

         Interrogatory No. 25 asks Defendant Midwest to “[i]dentify the person(s) who requested Chitama Chitama's emails related to Plaintiff, state the date of the request, and explain the reasons why Chitama Chitama wrote handwritten notes on some emails.” (Doc. 104-3, at 7.) Defendant responded to the Interrogatory by stating that

[a]t this point it appears that the emails would have been requested by either Jenifer Sourk or Marie Vogel, and Chitama Chitama put the handwritten notes on to clarify his concerns and issues pertaining to the same. It is believed that this was done shortly after the time of the Plaintiff's complaint to the KHRC, but an exact date is unknown.

(Id.)

         Plaintiff contends that Defendant's Answer is not fully responsive to the Interrogatory because “either Defendant knows the information or it does not” and “[t]he Interrogatory is not asking Defendant to guess. …” (Doc. 104, at 14.) Plaintiff points out that Sourk, Vogel, and Chitama Chitama all remain employed by Defendant, “so Defendant should be able to ask … them to obtain this answer.” (Id.)

         The Court agrees with Plaintiff. Plaintiff's motion is GRANTED as to Interrogatory No. 25 and Defendant Midwest is ordered to provide a complete response to this Interrogatory that removes the offending qualifying language (i.e. “[a]t this point it appears that the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.