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Eichbauer v. Henry Ford Health System & Henry Ford Hospital

United States District Court, E.D. Michigan, Southern Division

August 24, 2017

Gerard Eichbauer, Plaintiff,
Henry Ford Health System & Henry Ford Hospital, Defendants.

          R. Steven Whalen United States Magistrate Judge.



         I. Introduction

         On 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 25-29).

         Presently before the Court is Defendants' Motion for Summary Judgment [32]. 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 Judgment [32].

         II. Background

         A. Plaintiff's Employment at Henry Ford Health System

         Plaintiff 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.

         Plaintiff's 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).

         B. Plaintiff's FMLA Leave

         In the summer of 2014, Plaintiff suffered from a knee problem that required surgery. Dkt. No. 32-2, p. 8 (Pg. ID 294).[1] 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).

         Defendants 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.

         Around 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).

         During 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. Id.

         C. Plaintiff's Return to Work and Reports of Abnormal Behavior

         Plaintiff 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. Id.

         At the 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.

         Copeland 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 done psychedelics?”)

         Trout 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.

         White-Evans 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 that. Id.

         D. Plaintiff's Drug Test

         Bendure 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.

         Johnson 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.

         On 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.

         Rita 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. Id.

         Dr. 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.

         E. Audit of Plaintiff's Narcotics Waste Documentation

         Michigan 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).

         Bendure 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).

         Plaintiff 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).

         F. Plaintiff's Termination

         Prior 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).

         Around 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.

         Johnson, 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 ...

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