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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WENDY REED,

Plaintiff,

vs Case No: 08-14034

Honorable Victoria A. Roberts

PAETEC COMMUNICATIONS, ET AL,

Defendants,

__________________________________/

ORDER DENYING MOTION AND 

SETTING SETTLEMENT CONFERENCE DATE

I. INTRODUCTION

This matter is before the Court on Defendants’ Motion to Dismiss Counts V

through IX of Plaintiff’s Complaint Due to Plaintiff’s Failure to Submit to Medical

Examination, filed July 9, 2009. [Doc. 32]. Plaintiff filed a Response. [Doc. 38]. 

Defendant filed a Reply. [Doc. 39]. The Court DENIES the Motion.

II. BACKGROUND

Plaintiff Wendy Reed brings this action against her former employer McLeod

USA Telecommunications Service, Inc., doing business as Paetec. As amended, her

Complaint alleges: Count I - Breach of Contract; Count II - Conversion; Count III -

Misrepresentation/Fraud; Count IV - Violation of MCL 600.2961 (Treble Damages);

Count V - Disability Discrimination (in violation of the American with Disabilities Act

(“ADA”), 42 USC 1201 et seq. and/or the Michigan Person’s w/ Disabilities Civil Rights

Act (“MPDCRA”), MCL 37.1101 et seq.); Count VI - Retaliation (in violation of the ADA

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and/or MPDCRA); Count VII - OSHA Retaliation (in violation of the Michigan

Occupational Safety and Health Act (“MIOSHA”), MCL 408.1001 et seq.); Count VIII -

Whistleblower Violation (in violation of the Michigan Whistleblower’s Act, MCL 15.361 et

seq); and Count IX - Intentional Infliction of Emotional Distress. 

Plaintiff says Defendants failed to pay her nearly $75,000.00 in commissions that

she rightfully earned; retaliated against her for filing a MIOSHA complaint regarding

Defendants’ failure to accommodate her food allergy, specifically to certain Italian

cheeses; and, terminated her for filing a police complaint regarding a workplace

tampering with her “epi pen” (an emergency epinephrine injection device used to quickly

stop allergic reactions). 

Defendants filed a Counterclaim, as amended, which alleges: Count I - Claim for

Attorney Fees under MCL 600.2961 and Count II - Intentional Interference with

Contract. Defendants say Plaintiff falsely reported the tampering with her epi pen. 

They say the resulting police and internal investigations disrupted office operations,

causing various employees and supervisors to breach their obligations to provide their

best efforts and full attention to their jobs. Defendants say they are entitled to attorney

fees, pursuant to MCL 600.2961, if they prevail.

During the course of discovery, Defendants sought to have their expert conduct

an allergy skin test on Plaintiff. Plaintiff initially refused to submit to the testing,

prompting Defendants to file a Motion to Compel. Defendants withdrew their Motion

after Plaintiff agreed to the skin test. An appointment was scheduled for June 13, 2009. 

On June 12, 2009, Plaintiff’s adult daughter was taken to the emergency room

with complaints of chest pain. The daughter was diagnosed with Pleurisy (an

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inflammation of the lining of the lung), treated and released on the same day. That

same day, Plaintiff’s counsel notified defense counsel via voice mail and facsimile that

the daughter’s illness would likely prevent Plaintiff from attending the scheduled

examination the following day. Plaintiff did not attend the examination, electing instead

to care for her daughter.

Defendants agreed to re-schedule the examination if Plaintiff: (1) provided

documentation to support her daughter’s hospitalization on June 12; (2) agreed to be

examined on Saturday, July 18; and (3) agreed to pay any cancellation fee for the

original appointment. They filed this Motion after Plaintiff failed to respond or agree to

their conditions. Defendants ask the Court to sanction Plaintiff and dismiss Counts V

through IX of her Complaint.

Plaintiff says Defendants needlessly filed this Motion for tactical advantage. She

says she was and remains ready to proceed with the examination. Additionally, Plaintiff

says Defendants filed this Motion without first contacting opposing counsel, as required

by L.R. 7.1. She asks the Court to sanction Defendants pursuant to Fed. R. Civ. P. 11

for filing a frivolous motion. 

III. APPLICABLE LAW AND ANALYSIS

Rule 37(b) of the Federal Rules of Civil Procedure authorizes the imposition of

sanctions for a party's failure to obey an order requiring discovery. Fed. R. Civ. P.

37(b)(2)(A) provides that "if a party . . . fails to obey an order to provide or permit

discovery . . . the court in which the action is pending may issue further just orders.

They may include the following: . . . (v) dismissing the action or proceeding in whole or

in part . . . . " A party "fails to obey" a discovery order merely by failing to comply; no

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showing of willfulness, bad faith, or malice is needed. Societe Internationale pour

Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 208, 78 S.

Ct. 1087, 2 L. Ed. 2d 1255 (1958).

In determining an appropriate sanction, the Sixth Circuit directed trial courts to

consider four factors: (1) whether the party's failure to cooperate in discovery is due to

willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the party's

failure to cooperate in discovery; (3) whether the party was warned that failure to

cooperate could lead to the sanction; and (4) whether less drastic sanctions were first

imposed or considered. Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997); see

also Peltz v. Moretti, No. 07-3338, 2008 U.S. App. LEXIS 19769, 2008 WL 4181188, at

* 4 (6th Cir. Sept. 11, 2008); accord Regional Refuse Sys., Inc. v. Inland Reclamation

Co., 842 F.2d 150, 154-55 (6th Cir. 1988).

"Although no one factor is dispositive, dismissal is proper if the record

demonstrates delay or contumacious conduct." United States v. Reyes, 307 F.3d 451,

458 (6th Cir. 2002). "Dismissal of an action for failure to cooperate in discovery is a

sanction of last resort that may be imposed only if the court concludes that a party's

failure to cooperate in discovery is due to willfulness, bad faith, or fault." Reg'l Refuse

Sys., Inc., 842 F.2d at 153-54 (quoting Patton v. Aerojet Ordnance Co., 765 F.2d 604,

607 (6th Cir. 1985)). Rule 37(b) sanctions are discretionary, and are reviewed by the

Court of Appeals under an abuse-of-discretion standard. See Freeland, 103 F.3d at

1276. 

Defendants claim that Parker v. Univ. of Penn., 2005 U.S. App. LEXIS 7558 (3rd

Cir. 2005) supports an award of sanctions against Plaintiff for her failure to submit to the

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skin test. Parker, an unpublished 3rd Circuit Court of Appeals opinion, involved a pro se

plaintiff’s claims, among others, of disability discrimination under the American with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. The district court twice ordered the

plaintiff to undergo a psychiatric examination pursuant to Fed. R. Civ. P. 35. When he

refused, the court awarded the defendant money sanctions and dismissed the plaintiff’s

ADA claim for failure to submit to the examination. 

On appeal, plaintiff argued that since he withdrew his ADA claim predicated on

actual disability, and only a claim based on perceived disability remained, the court

erred in ordering him to undergo the examination. The appeals court disagreed, noting

that discovery rules permit a defendant to uncover the facts supporting the allegations in

the plaintiff’s complaint. Because a specific cause of action remained under the ADA

concerning whether the plaintiff was regarded as disabled due to a major psychiatric

illness, and he had been previously diagnosed with a major psychiatric illness, his

mental health was in controversy and good cause existed for the examination. 

Consequently, the appeals court ruled the money sanctions and dismissal of the ADA

claim were appropriate for his failure to attend.

Similarly here, the issue of whether Plaintiff suffers from allergies to certain

cheeses is in controversy; it is at the crux of Counts V through IX of her Complaint. 

Plaintiff testified at deposition that she was diagnosed as a teen nearly 25 years ago

and cannot recall the name of the diagnosing doctor. She has not identified any other

physician who diagnosed the allergy. Good cause, therefore, exists for the

examination. However, unlike Parker, where the plaintiff was twice ordered to submit to

a psychiatric evaluation and refused, this Court never ordered Plaintiff to submit to

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allergy skin testing. The Court should not be persuaded that Parker applies here.

Moreover, upon review, none of the Freeland factors is present here. First, it is

not clear that Plaintiff’s failure to cooperate with the testing was due to willfulness, bad

faith, or fault. She initially refused due to concerns about the invasive nature of the

procedure. While skin allergy testing is common, it does involve exposure to allergens

and carries a small risk of infection, allergic reaction and/or anaphylaxis (a severe

allergic reaction that occurs rapidly and causes a life-threatening response involving the

whole body). See http://www.acaai.org/public/background/testing.htm. Plaintiff’s initial

apprehension, therefore, was not entirely misplaced.

With regards to the missed appointment, while admittedly, the daughter’s

emergency room (“ER”) visit ended by June 13, Plaintiff says her daughter continued to

experience weakness, chest pain and breathing trouble after her release from the ER.

See Response, Exh. 4, Affidavit. She, therefore, elected to care for her daughter and

not attend the exam. This decision does not appear to stem from wilful behavior or bad

faith.

Plaintiff says by affidavit that she will submit to the testing. See Response, Exh.

4. She claims that after she missed the June 13 appointment, she agreed to

Defendant’s first and third conditions to reschedule, but not the second (due to a dispute

between the parties over costs associated with an out-of-state witness deposition). She

and her counsel believed the issue was resolved and the testing would occur on July

18. Defense counsel recalls no such agreement, and says there is no documentation of

any agreement. 

In their June 19, 2009 letter to Plaintiff’s counsel, Defendants admit that Plaintiff

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requested rescheduling of the appointment. Thus, it is a bit of a stretch to say Plaintiff

refused to submit to testing. It appears the only real issue in dispute is the cancellation

fee. Notably, Defendants have not been charged a cancellation fee and it is not clear if

they will be. In any event, Defendants say the fee would only be $150.00. Certainly,

the parties could have resolved the fee dispute in a more time and cost-effective

manner, without involving the Court. 

Second, there is no indication that Defendants were prejudiced by the delay. 

The Scheduling Order (Phase One) was entered on December 9, 2008. Defendants

first asked Plaintiff in writing on April 3, 2009 – 4 months later and 4 weeks before the

discovery deadline -- to undergo allergy testing. The June 13, 2009 appointment was

already beyond the discovery deadline and the parties were in agreement regarding the

testing by that date.

Third, Plaintiff has not been warned regarding sanctions, nor has the Court

considered or previously imposed sanctions. At this juncture, however, a warning is

appropriate.

Lastly, it is not clear that Defendants complied with L.R. 7.1, which requires the

movant to ascertain whether a motion will be opposed. Plaintiff’s counsel says he was

not contacted before this Motion was filed. Defense counsel denies that claim, relying

on his June 19 letter. However, that letter says “our initial thought was to renew our

motion seeking dismissal of Counts V through IX of the complaint, all of which involve

her alleged allergy, due to her failure to engage in discovery. Upon reconsideration,

however, we are willing to provide Ms. Reed an opportunity to comply with her

discovery obligations if the following conditions are met . . .” The faxed letter asks

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Plaintiff’s counsel to respond in writing by June 23. 

No written response was forthcoming from Plaintiff’s counsel by Defendants’

deadline. But, Defense counsel provides no further correspondence advising Plaintiff

that a Motion would, in fact, be filed or seeking concurrence. Defendants’ Motion claims

to include such correspondence (see Doc. 32. ¶ 24), but it is omitted. 

IV. CONCLUSION

The Court DENIES Defendants’ Motion to Dismiss Counts V through IX of

Plaintiff’s Complaint. The Court also DENIES Plaintiff’s request for sanctions.

The Court orders Plaintiff to submit herself for allergy testing within 30 days of

this Order. Failure to comply will result in sanction, up to and including dismissal of

Counts V through IX of her Complaint.

Further, a Settlement Conference is set for Thursday, September 10, 2009 at

1:00 p.m. If counsel believes such a conference would not be fruitful, both counsel

should contact the Court and a conference call will be held instead. 

IT IS ORDERED.

 /s/ Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: August 5, 2009

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

August 5, 2009.

s/Linda Vertriest 

Deputy Clerk

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