United States District Court, E.D. Michigan, Southern Division
Steven Whalen United States Magistrate Judge.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.
April 19, 2016, Gerald Eichbauer (“Plaintiff”)
filed a Complaint against Henry Ford Health System and Henry
Ford Hospital (“Defendants”). See Dkt.
No. 1. On May 5, 2016, Plaintiff submitted an Amended
Complaint, alleging five violations of state and federal law:
violations of the federal Family and Medical Leave Act (FMLA)
(Counts I and II); violations of Michigan's
Elliott-Larsen Civil Rights Act (Counts III and IV); and
violations of Michigan's Persons with Disabilities Civil
Rights Act (PWDCRA) (Count V). Dkt. No. 4, pp. 9-13 (Pg. ID
before the Court is Defendants' Motion for Summary
Judgment . Upon review of the pleadings, the Court
determines that a hearing will not aid in the resolution of
this motion. E.D. Mich. LR 7.1(f)(2). For the reasons
discussed herein, the Court will GRANT IN PART and
DENY IN PART Defendants' Motion for Summary
Plaintiff's Employment at Henry Ford Health
Gerald Eichbauer first began working as a Certified
Registered Nurse Anesthetist (CRNA) for Defendants, Henry
Ford Health System and Henry Ford Hospital, in September
1988. Dkt. No. 32-2, p. 3 (Pg. ID 289). In March 2003,
Plaintiff left Defendants to work for a different hospital,
returning to Defendants' employment in October 2007.
Id. at 4. Thereafter, Plaintiff worked at
Defendants' ambulatory surgery sites, including Fairlane
Hospital, Cottage Hospital in Grosse Pointe Farms, and
Lakeside Hospital in Sterling Heights. Id. at 4-5.
lead CRNA was Susan Trout, who reported to Cindy Bendure.
Dkt. No. 46-2, p. 3 (Pg. ID 688). Plaintiff got along with
Bendure, who he described as “a pretty easygoing
chick.” Dkt. No. 32-3, p. 4 (Pg. ID 290). Bendure
reported to Claude Johnson, the CRNA manager, who oversees
CRNAs through Defendants' health system. Dkt. No. 46-2,
p. 3 (Pg. ID 688); Dkt. No. 46-5, p. 2 (Pg. ID 736). In
Plaintiff's last performance review from 2010, he was
listed as “Superior” or “Commendable”
in all areas. Dkt. No. 46-3. Prior to taking FMLA leave,
Plaintiff had not had any documented performance issues. Dkt.
No. 46-4, p. 3 (Pg. ID 716). Physicians with whom Plaintiff
worked described him as “very confident, expedient,
technically, as well as clinically.” Dkt. No. 46-6, p.
7 (Pg. ID 758).
Plaintiff's FMLA Leave
summer of 2014, Plaintiff suffered from a knee problem that
required surgery. Dkt. No. 32-2, p. 8 (Pg. ID
294). Plaintiff notified Bendure of his
intention to take leave, and Bendure called Nancy Farquharson
in Human Resources for instructions on how to proceed. Dkt.
No. 46-4, pp. 3-4 (Pg. ID 716- 17).
use Cigna, a third-party claims processor, to handle FMLA
leave. Dkt. No. 46-4, p. 20 (Pg. ID 733). Plaintiff made a
request to Cigna on July 28, 2014 for a continuous leave of
absence from July 25, 2014 to September 4, 2014. Dkt. No.
46-10, p. 1 (Pg. ID 794). By August 19, 2014, Cigna had
approved Plaintiff's request for FMLA leave until
September 4, 2014. Id. at 4. By September 3, 2014,
Cigna recorded that Plaintiff sought to extend his leave
until October 20, 2014, although his FMLA leave was exhausted
as of October 16, 2014. Id. at 6. By September 22,
2014, Cigna had approved Plaintiff's leave until October
19, 2014, with the days after his FMLA leave was exhausted
covered by a medical leave of absence. Id. at 12.
September 19, 2014, Bendure called Plaintiff to see how he
was feeling and to verify approximately when he would be
coming back to work. Dkt. No. 46-4, p. 4 (Pg. ID 717). She
required him to submit a doctor's note to confirm his
leave dates, although Cigna was responsible for handling the
documentation of Plaintiff's FMLA leave. See id.
Plaintiff felt that Bendure was “a little demanding and
sassy, ” but he got her the letter and continued the
remainder of his twelve weeks of FMLA leave without further
interruption. Dkt. No. 46-2, p. 8 (Pg. ID 693).
the time Plaintiff was on leave, Defendants were
short-staffed and used contingent staffers and an agency to
replace Plaintiff. Dkt. No. 46-4, p. 5 (Pg. ID 718).
Plaintiff continued to receive his salary during his leave.
Id. Plaintiff testified that he was never told that
he could not take the full amount of FMLA leave. Dkt. No.
32-2, p. 10 (Pg. ID 296). At the end of his leave, Defendants
restored Plaintiff to his normal position and schedule.
Plaintiff's Return to Work and Reports of Abnormal
returned to work at Cottage Hospital on October 20, 2014.
Dkt. No. 46-10, p. 12 (Pg. ID 805). Plaintiff returned from
leave and resumed his normal schedule. Dkt. No. 46-2, p. 9
(Pg. ID 694). He testifies that he was fine and off pain
medication until a sciatica flare-up in November 2014.
end of November or beginning of December, Bendure received
the first report from a coworker, Kim Copeland, about a
change in Plaintiff's demeanor. Dkt. No. 32-5, p. 7 (Pg.
ID 341). Shortly thereafter in early December, two more
coworkers, Susan Trout and Stephanie White Evans, separately
reported concerns with Plaintiff's demeanor to Bendure.
Id. at 8. Trout and White-Evans both spoke to
Bendure on either the same day or very close in time, which
raised a red flag for Bendure. Id. at 15.
reported that on November 26, 2014, Plaintiff reported to
work with red eyes, a flat affect, and a tired appearance.
Dkt. No. 32-14. Plaintiff told Copeland that he
“didn't feel well, ” but was okay to work.
Id. He allegedly asked Copeland, “is this all
I get?” when she gave him his narcotics box for the
day, and mentioned wanting to go home early around noon.
Id. Copeland observed Plaintiff's hands were
extremely shaky while he drew up medication. Id. She
accompanied Plaintiff to the bedside of his last patient and
heard him make comments about how the patient would feel on
the narcotics, which she felt were inappropriate.
Id. (reporting Plaintiff said to the patient,
“You are going to feel like you are in another world.
You will feel like you are back in high school. Have you ever
reported to Bendure that Plaintiff's behavior had changed
since he returned from leave. Dkt. No. 32-15. Whereas Trout
felt Plaintiff used to be a cooperative team player, she now
believed that he was more edgy and angry at work.
Id. When Trout tried to give Plaintiff constructive
criticism, particularly about how he handled narcotics,
Plaintiff would now get upset. Id. Plaintiff also
was refusing to work his portion of the late shift, citing
family emergencies, unless Trout was adamant it was his turn.
Id. Plaintiff was leaving his shift early and
failing to balance his narcotics count properly. Id.
Additionally, Trout reported that Plaintiff was mixing
narcotics in a way that went against protocol and
reprogramming infusion pumps to run his incorrect mixture.
Id. Finally, Trout also reported seeing
Plaintiff's hands shaking at work, while he was angry
about a missing key. Id.
reported an encounter with Plaintiff on November 24, 2014,
where Plaintiff had kept narcotics on his cart for multiple
cases. Dkt. No. 32-16; Dkt. No. 32-8, p. 4 (Pg. ID 366).
Plaintiff allegedly still had Remifentanil on his cart that
he stored in a drawer, even though the last patient had not
received that medication and policy dictated against carrying
medication from the previous patient to the next case.
Id. When White-Evans asked Plaintiff twice if he
needed assistance to follow the proper narcotics wasting
procedure, Plaintiff declined and asked her to take his waste
down to the pharmacy for him. Id. White-Evans
declined and told Plaintiff that they were not allowed to do
Plaintiff's Drug Test
spoke with the medical director of ambulatory surgery, Debra
Wetzel, about the complaints about Plaintiff's behavior
since returning from leave, and then contacted her
supervisor, Johnson. Dkt. No. 32-5, p. 9 (Pg. ID 343).
Johnson came out to the Cottage site the next day, December
9, 2014, and he and Bendure met with Plaintiff and asked how
he was feeling since his surgery. Id. During that
conversation, Bendure noted that Plaintiff was
“scattered, ” “flushed, ”
“anxious, ” and “kind of antsy.”
Id. at 9-10.
concluded from the meeting that something was wrong with
Plaintiff and that they needed to share that with Farquharson
in Human Resources. Dkt. No. 32-4, p. 8 (Pg. ID 324).
Farquharson suggested that they bring Plaintiff in for drug
testing based on reasonable suspicion that Plaintiff was
under the influence. Dkt. No. 32-9, p. 5 (Pg. ID 373).
Farquharson also instructed Bendure to compile written
witness statements about Plaintiff's behavior.
Id. at 9.
December 10, 2014, Johnson accompanied Plaintiff to Employee
Health for a urine-based drug test. Dkt. No. 32-2, pp. 10-11
(Pg. ID 296-97). Plaintiff was suspended for three days
pending the test's results. Id. at 19. While
awaiting the results of Plaintiff's drug test, Bendure
assembled written statements from those who worked with
Plaintiff. Dkt. Nos. 32-14-32-18. Copeland, Trout, and
White-Evans emailed Bendure written drafts of their oral
reports. See Dkt. Nos. 32-14- 32-16.
Haynes, the lead pharmacist at Cottage, emailed Bendure
regarding her interactions with Plaintiff. Dkt. No. 32-7, p.
5 (Pg. ID 360); Dkt. No. 32-17. According to Haynes,
Plaintiff was “sloppy, lackadais[ical], and then
progressively got worse” regarding his completion of
required narcotics documentation. Dkt. No. 32-7, p. 4 (Pg. ID
359). Haynes testified that Plaintiff and another male CRNA
were the sloppiest about narcotics documentation, but by the
end, Plaintiff was “by far” the sloppiest.
Id. Around the time Bendure requested a statement,
Haynes states that Plaintiff was acting differently than he
had previously. Id. at 5 (“He was kind of
uncooperative and just acting irate, and was, like, put out
by the fact that we were trying to get him to correct his
sheets or finish his sheets.”). Haynes emailed Bendure
that Plaintiff often incorrectly recorded the amount of
narcotics administered and wasted. Dkt. No. 32-17. She also
reported that his writing was difficult to read, his numbers
wouldn't be added properly, he would randomly change the
unit of measurement from start to finish, and that he did not
comply with the current narcotics wasting policy.
Aarti Banker, the physician in charge, wrote an overall
positive assessment of Plaintiff. Dkt. No. 32-18. She wrote
Bendure that Plaintiff was “very experienced,
confidence, and quite proficient” in her email.
Id. Banker noted that Plaintiff had been requesting
to leave work early lately due to family issues, but she did
not observe anything different since he returned from leave.
Id. The previous week, Banker had to ask Plaintiff
not to use a very high concentration of Remifentanil drip,
but states he had not repeated the mistake. Id. Also
in the prior week, Banker notes that Plaintiff became
irritated with a surgeon; however, Plaintiff later apologized
and agreed not to let it happen again. Id.
Audit of Plaintiff's Narcotics Waste
law requires that information regarding controlled substances
that are dispensed or administered be accurately recorded.
See Mich. Admin. Code r. 338.3601 et seq.
At Cottage, a “Control Drug Administration
Record” (CDAR) is a medication reconciliation form
provided by the pharmacy that CRNAs must fill out on a daily
basis. Dkt. No. 32-4, p. 15 (Pg. ID 331); Dkt. No. 32-6.
CRNAs must document narcotics administered to patients, then
“waste” and record any narcotics not administered
on the CDAR. Dkt. No. 32-4, pp. 15-16 (Pg. ID 331- 32). At
Cottage, wasting of narcotics had been accomplished by taking
unused narcotics to the Pharmacy for the Pharmacy to waste.
Dkt. No. 32-7, pp. 6-7 (Pg. ID 361-62). In October or
November 2014, the policy regarding narcotics wasting changed
to “witness wasting, ” which required CRNAs to
waste unused narcotics down a sink as soon as the case
concluded, with a witness present to sign the CDAR. Dkt. No.
46-17, p. 12 (Pg. ID 902).
performed an audit of Plaintiff's narcotics documentation
while awaiting the drug test results. Dkt. No 32-5, p. 11
(Pg. ID 345). The audit determined that Plaintiff had at
least thirty discrepancies in his narcotics documentation in
less than two months since he returned from leave.
See Dkt. Nos. 32-21-32-23. After the policy changed
to require witness wasting as soon as possible, Plaintiff was
the only CRNA who would still bring his unused narcotics to
the pharmacy for wasting without a signature. Dkt. No. 32-7,
pp. 6-7 (Pg. ID 361-62).
describes his narcotics documentation as “lazy.”
Dkt. No. 32-2, p. 16 (Pg. ID 302). He would instead squirt
his unused narcotics into an anesthetic box with syringes and
other waste. Id. at 7. Because of the discrepancies
in Plaintiff's CDARs and amount of missing waste
documentation, Bendure stated that Plaintiff could have
diverted drugs. Dkt. No. 32-5, p. 14 (Pg. ID 348).
to receiving Plaintiff's drug test results, Farquharson
recalls that Plaintiff called her to first report taking
Tylenol 3 prior to the test, then to report he had taken
Vicodin prior to the test. Dkt. No. 32-9, p. 14 (Pg. ID 382).
Plaintiff does not recall making these admissions to
Farquharson. Dkt. No. 32-2, p. 13 (Pg. ID 299).
December 16, 2014, Plaintiff's drug test results came
back positive for opiates (Vicodin) and benzodiazepine.
(Valium). Dkt. No. 32-24. Plaintiff does not dispute the
correctness of the drug test results. Dkt. No. 32-2, p. 14
(Pg. ID 300). He had a prior prescription for the Vicodin at
the time of the test, but had not been prescribed Valium.
Id. He received a prescription for Valium several
days later. Id.
Bendure, and Farquharson met regarding the results. Dkt. No.
32-4, p. 11 (Pg. ID 327); Dkt. No. 46-4, p. 14 (Pg. ID 727);
Dkt. No. 46-11, pp. 5-6 (Pg. ID 817-18). Human resources
recommended that Plaintiff be terminated. Dkt. No. 32-4, p.
11 (Pg. ID 327). Farquharson testified that it was a
terminable offense for an individual in a patient ...