UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CYNTHIA GRABOWSKI,

Plaintiff, CASE NO. 15-12318

HON. DENISE PAGE HOOD

v.

QBE AMERICAS, INC., and

QBE HOLDINGS, INC. REGULAR

OR LIMITED TERM MEMBERS

GROUP MEMBER BASIC LIFE 

INSURANCE PLAN,

Defendants.

 /

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’

MOTION TO STAY [#30]

I. BACKGROUND/FACTS

This lawsuit was originally filed on June 26, 2015 by Plaintiff Cynthia

Grabowski (“Grabowski”), individually and as the Personal Representative of the

Estate of Terence G. Grabowski. (Doc # 1)  On July 13, 2016, Grabowski filed an

Amended Complaint against Defendants QBE Americas, Inc. and QBE Holdings,

Inc. Regular or Limited Term Members Group Member Basic Life Insurance Plan

alleging four counts: Violation of the American with Disabilities Act (Count I),

Breach of Fiduciary Duty under the Employee Retirement Income Security Act

(“ERISA”) (Count II), Wrongful Termination under ERISA (Count III), and

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Wrongful Refusal to Pay Life Insurance (Count IV). (Doc # 21) Pursuant to the

Scheduling Order entered on July 20, 2016, the discovery deadline is on January 9,

2017; and the dispositive motion deadline is on February 13, 2017. (Doc # 24)

On November 10, 2016, Defendants filed a Motion to Dismiss or in the

Alternative Motion for Summary Judgment. (Doc # 28) The matter is scheduled

for a Motion Hearing on January 25, 2017 and has not yet been fully briefed. Also

on November 10, 2016, Defendants filed a Motion to Stay the Case Pending an

Order on their Motion to Dismiss or in the Alternative Motion for Summary

Judgment. (Doc # 30) Grabowski filed a Response to the Motion to Stay on

November 28, 2016. (Doc # 34) Defendants filed a Reply on December 2, 2016. 

(Doc # 35) The Court held a hearing on the Motion to Stay on December 6, 2016. 

Decedent Terence Grabowski was a senior claims adjuster for QBE

Americas, Inc. since June 2011. In March 2014, he was placed on a Work

Performance Plan. (Doc # 28-3) In July 2014, he made QBE aware that he was

seeking medical treatment after beginning to experience short-term memory loss. 

QBE requested that his doctor fill out a form furnished by QBE titled “Request for

Information: Americans with Disabilities Act.” (Doc # 34-1) This form, dated

July 25, 2014, states as follows:

Terence has brought it to our attention that he has been seeing a 

doctor for memory issues/episodes of forgetfulness. Terence has been

missing important deadlines, has issues with paying attention to detail,

has not been maintaining his claims files appropriately and is often 

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not responsive to requests from his manager. We are concerned for 

his well-being while at work. We have observed that his performance 

level is not where it needs to be. Terence is a Senior Claims 

Specialist – Property and performs most of his work in his cubicle at 

his desk on the phone and on a computer. Given the above 

information, we need to determine any reasonable accommodations 

that we can make to restore him to an acceptable level of 

performance.

Id. at 679. His doctor completed the form noting that Terence Grabowski was

being referred to a neurologist for further evaluation and diagnosis. Id. The doctor

noted a possible need for medication pending further evaluation. Id. at 680. In

response to the question “What is the nature of the employee’s condition to the

extent that such condition may affect the employee’s ability to perform the

functions of his job?,” the doctor responded: “minimal; but beginning to be an

issue + progressing.” Id. The doctor opined that Grabowski was not limited in any

major life activities other than working. Id. QBE included a suggested list of

accommodations for Terence Grabowski on the form, and asked his doctor to

comment on them. Id. at 681. The doctor agreed with the suggested list of

accommodations and opined that Terence Grabowski could perform all of his

essential job responsibilities without any other accommodations. Id. Grabowski

asserts that this form was returned to QBE in August 2014, and that Terence

Grabowski informed QBE that his appointment with the neurologist was scheduled

for September 29, 2014. 

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Terence Grabowski was terminated on September 11, 2014, which

Defendants allege was for performance issues. Grabowski claims that he was

never given the option to take a leave of absence until his medical condition could

be determined. Two months after the termination, a neurologist diagnosed Terence

Grabowski with early onset Alzheimer’s Dementia, and he was started on

medication. Grabowski claims that, after applying to dozens of companies with no

response, Terence Grabowski talked to QBE about short-term and long-term

disability but was told that he was not eligible because he was no longer an

employee. 

In December 2014, Terence Grabowski filed a charge of discrimination with

the EEOC. He submitted a Supplemental Questionnaire stating that he could not

perform the major duties of the claims adjuster position with or without an

accommodation, and that he did not ask for an accommodation. (Doc # 28-8) On

April 2, 2015, the EEOC issued a Dismissal and Notice of Rights. (Doc # 28-9)

In May 2015, Terence Grabowski submitted a claim for short-term and longterm disability benefits through QBE. He also submitted documentation from his

neurologist stating that he was terminated before the neurologist was able to first

see him in September 2014. (Doc # 28-6) The neurologist did not support Terence

Grabowski returning to work at that time even with accommodations. Id.

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Terence Grabowski died on May 23, 2015 from a heart attack. After filing

this litigation in June 2015, Grabowski was notified that the claim for long-term

disability benefits was approved. Grabowski subsequently filed a claim for life

insurance proceeds through QBE, but the claim was denied and the denial affirmed

through administrative appeals. The Principal determined that Terence Grabowski

was not eligible for life insurance coverage because: (1) he did not become totally

disabled prior to attaining the age of 60, as required by the policy; and (2) he did

not convert his group life insurance policy to an individual policy after he was

terminated. (Doc # 28-10) 

II.ANALYSIS

A. Standard of Review

“Trial courts have broad discretion and inherent power to stay discovery

until preliminary questions that may dispose of the case are determined.” Hahn v.

Star Bank, 190 F.3d 708, 719 (6th Cir. 1999). 

B. Whether to Stay the Case

Through the instant Motion, Defendants seek to stay the case, including all

discovery, until the Court rules on the threshold issues raised in Defendants’

Motion to Dismiss or for Summary Judgment, in order to avoid unfair prejudice

and unnecessary attorneys’ fees and costs. Defendants argue that a stay would not

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prejudice Grabowski because the Motion to Dismiss is based on Grabowski’s

pleadings and the related administrative record. Defendants’ Motion to Dismiss or

for Summary Judgment could potentially dispose of this case entirely. Defendants

identify the following eight issues to be decided in their Motion to Dismiss:

1. Are Defendants entitled to dismissal of Count I of Plaintiff’s First 

Amended Complaint under the ADA where judicial estoppel prevents 

Plaintiff from arguing that Terence Grabowski was denied any 

reasonable accommodation, or was otherwise a qualified individual 

with a disability as defined by the ADA?

2. Are Defendants entitled to dismissal of Count I of Plaintiff’s First 

Amended Complaint under the ADA where Plaintiff has not 

sufficiently pled, and cannot establish that Terence Grabowski was 

disabled as defined by the ADA?

3. Are Defendants entitled to dismissal of Count I of Plaintiff’s First 

Amended Complaint where neither Terence Grabowski nor QBE were

aware of Grabowski’s alleged disability at any time prior to his 

termination?

4. Are Defendants entitled to dismissal of Count I of Plaintiff’s First 

Amended Complaint where Plaintiff has not established and cannot 

establish that Terence Grabowski was qualified to perform the 

essential functions of his position with or without reasonable 

accommodation?

5. Are Defendants entitled to dismissal of Count I of Plaintiff’s First 

Amended Complaint where Terence Grabowski was terminated for 

legitimate non-discriminatory reasons, wholly unrelated to his 

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purported disability, which neither Terence Grabowski, nor QBE were

aware of as of the date of Grabowski’s termination?

6. Are Defendants entitled to dismissal on Plaintiff’s claim of Breach 

of Fiduciary Duty under Section 502(a)(3) of ERISA, where ERISA 

does not permit duplicative claims for the same remedy and Plaintiff 

has sought relief under Section 502(a)(1)(B)?

7. Are Defendants entitled to dismissal on Plaintiff’s claim of 

wrongful refusal to pay life insurance in violation of ERISA, where 

the decision to deny Plaintiff’s claim for benefits was neither arbitrary

nor capricious?

8. Are Defendants entitled to dismissal on Plaintiff’s claim of 

wrongful termination in violation of ERISA, where Plaintiff failed to 

exhaust her administrative remedies and cannot show a causal nexus 

between Grabowski’s termination and entitlement to benefits?

Grabowski responds that it would be grossly unfair to require Grabowski to

respond to Defendants’ extensive Motion to Dismiss or in the Alternative Motion

for Summary Judgment without the ability to complete discovery. Grabowski

notes that Defendants responded to Grabowski’s Request to Produce with

objections to almost every request on the same day they filed their Motion to

Dismiss and Motion to Stay. Grabowski asserts that few documents have been

produced, and that Defendants stated that some additional documents would be

produced upon entry of a mutually agreeable protective order. At a minimum,

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Grabowski seeks testimony from Terence Grabowski’s two supervisors, as well as

the two decision makers on his request for long-term disability and life insurance. 

Grabowski argues that these depositions will provide knowledge of what

Defendants knew and when in deciding to terminate Terence Grabowski, and are

necessary to adequately defend against Defendants’ Motion to Dismiss or in the

Alternative Motion for Summary Judgment. 

Grabowski relies on Ohio Bell Tel. Co. v. Global NAPs Ohio, Inc., where in

ruling upon a motion to stay, the court weighed “the burden of proceeding with

discovery upon the party from whom discovery is sought against the hardship

which would be worked by a denial of discovery.” No. 2:06-CV-0549, 2008 WL

641252, at *1 (S.D. Ohio Mar. 4, 2008). The court stated that when a stay, rather

than a prohibition of discovery is sought, the burden upon the party requesting the

stay is less, and that the filing of a dispositive motion is usually deemed

insufficient to support a stay of discovery. Id. The court reasoned that motions to

dismiss are a frequent part of federal practice and that “a stay should not ordinarily

be granted to a party who has filed a garden-variety Rule 12(b)(6) motion” because

it would be at odds with the need for expeditions resolution of litigation. Id. It

would also require the court to make a preliminary finding of likelihood of success

on the motion to dismiss, which would circumvent the procedures for resolution of

such a motion. Id. The court noted that a stay may be appropriate where the

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complaint is “utterly frivolous,” or where the motion raises issues such as

immunity from suit, which would be substantially vitiated absent a stay. Id.

Defendants rely on Bradley v. Hallworth; however, that case involved an

unopposed motion to stay discovery pending a ruling on a motion to dismiss and

for summary judgment that raised issues of Eleventh Amendment immunity and

qualified immunity. No. 1:09-CV-1070, 2010 WL 2231820, at *1 (W.D. Mich.

June 1, 2010). The court found that “[a] stay of discovery is properly granted until

the issue of immunity is resolved.”

In this case, Terence Grabowski is deceased, and it would likely present a

hardship to Grabowski to have to respond to Defendants’ Motion to Dismiss or in

the Alternative Motion for Summary Judgment without additional discovery. 

There is no indication that the burden on Defendants of proceeding with discovery

would be unusually great. It cannot be said that Grabowski’s Complaint is utterly

frivolous, and Defendants’ Motion to Dismiss or in the Alternative Motion for

Summary Judgment does not raise issues of immunity from suit. Balancing the

arguments of Counsel, the Court grants in part and denies in part Defendants’

Motion to Stay.

III. CONCLUSION

For the reasons set forth above,

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IT IS HEREBY ORDERED that Plaintiff is allowed to conduct the four

depositions requested on the record, that of Terence Grabowski’s two supervisors,

as well as the two decision makers on his request for long-term disability and life

insurance. 

IT IS FURTHER ORDERED that Defendants are required to produce

documents covered by the Protective Order reviewed and signed by the Court no

later than December 19, 2016.

IT IS FURTHER ORDERED that the following dates on the Scheduling

Order entered on July 20, 2016 are STAYED:

Lay Witnesses December 8, 2016

Plaintiff’s Expert Witness List December 8, 2016

Defendants’ Expert Witness List December 22, 2016

Discovery Cut-Off January 9, 2017

Status Conference January 17, 2017 at 2:30 p.m.

Dispositive Motion Cut-Off February 13, 2017.

IT IS FURTHER ORDERED that Defendants’ Motion to Stay the Case

Pending an Order on their Motion to Dismiss or in the Alternative Motion for

Summary Judgment (Doc # 30) is otherwise GRANTED.

s/Denise Page Hood 

Chief Judge, United States District Court

Dated: December 7, 2016

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I hereby certify that a copy of the foregoing document was served upon counsel of

record on December 7, 2016, by electronic and/or ordinary mail.

s/LaShawn R. Saulsberry 

Case Manager

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