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LINDA PLACE v. ABBOTT LABS.

April 24, 1996

LINDA PLACE, Plaintiff,
v.
ABBOTT LABORATORIES, INC. AND LAKE-COOK PSYCHOLOGISTS AND COUNSELING ASSOCIATES, Defendants.



The opinion of the court was delivered by: DENLOW

TO: THE HONORABLE DAVID H. COAR

 UNITED STATES DISTRICT COURT

 REPORT AND RECOMMENDATION

 Plaintiff Linda Place ("Plaintiff") has filed a five-count pro se amended complaint against Abbott Laboratories, Inc. ("Abbott") and Lake-Cook Psychologists and Counseling Associates ("Lake-Cook") arising out of Plaintiff's employment and termination at Abbott. Lake-Cook, an independent medical provider, is a party only to Count III. In Count III, Plaintiff alleges that Lake-Cook interfered with her rights under the Employee Retirement Income Security Act, 29 U.S.C. ยง 1001 et seq. ("ERISA"), by refusing to administer an independent medical examination. Lake-Cook has filed a motion for summary judgment to Count III contending that as a non-employer, independent medical provider, it was not liable to Plaintiff under ERISA. Lake-Cook explains that it refused to administer the independent medical exam because Plaintiff insisted on operating a tape recorder during the exam.

 Lake-Cook did not violate ERISA by exercising its medical judgment not to proceed with the exam unless Plaintiff turned off her tape recorder. For the reasons set forth below, the Court should grant Lake-Cook's motion for summary judgment.

 I. FACTUAL BACKGROUND

 Plaintiff was employed by Abbott from February 25, 1986 to November 17, 1992. (Plaintiff's Response to Lake-Cook's Motion for Summary Judgment Statement of Material Facts (hereinafter "12(N)" P7.) While employed by Abbott, Plaintiff was a participant in the disability plan under ERISA. (12(N) P8.)

 From July, 1991 through November, 1991, Plaintiff complained to the Abbott Human Resources Department of sexual harassment by her supervisor. (12(N) P9; Lake-Cook's Reply Memorandum In Support of Summary Judgment (hereinafter "Reply") at 2.) Abbott responded to Plaintiff's complaints by attempting to reassign her to another unit. (Reply at 2; Response To Lake-Cook's Statement of Facts in Plaintiff's Surreply To Lake-Cook's Summary Judgment Motion (hereinafter "Surreply") P5.) Subsequently, in November of 1991, Plaintiff took a disability leave of absence from Abbott due to depression and post-traumatic stress disorder. (Reply at 2; Surreply P7.) Following her disability leave, Plaintiff was released by her therapist to return to full work duties on May 15, 1992. (12(N) P10.)

 On May 18, 1992, Dr. Brockton L. Weisenberger, Director of Corporate Employee Health at Abbott, and other Abbott employees decided that additional medical information regarding Plaintiff's mental state was necessary based on a concern that Plaintiff may be a danger to herself or others. (Reply at 3; Surreply PP13-14.)

 On May 19, 1992, Lake-Cook agreed to perform and administer an independent medical examination ("IME") of Plaintiff pursuant to a provider agreement between Lake-Cook and CNR Health, Inc., a non-party, who is the managed care provider for Abbott employees (Lake Cook Ans. P36). A variety of psychological testing and a therapy session was to be included in the examination. Plaintiff did not keep her first scheduled appointment on June 12, 1992. On August 20, 1992, Plaintiff came into Lake-Cook's offices and met with Dr. John D. Jochem, a clinical psychologist, for the purposes of submitting to a mental status examination as requested by Abbott. (Jochem Aff. P2.) At that meeting, Plaintiff insisted on tape recording the mental status examination and any psychological testing which was to be administered. Dr. Jochem would not allow Plaintiff to tape record the examination, and Plaintiff declined to proceed with the examination unless she was allowed to tape record. The examination was terminated. (Lake-Cook's Facts P3; 12(N) P3; Jochem Aff. P3.) Dr. Jochem never discussed with anyone, nor was he aware of Plaintiff's ERISA benefits.

 After Plaintiff left Lake-Cook's offices, Dr. Jochem telephoned Dr. Weisenberger and informed him of Plaintiff's refusal to participate in the IME without tape recording. Dr. Jochem informed Dr. Weisenberger that he was still willing to conduct a medical examination of Plaintiff however, he was unwilling to do so if tape recorded. (Lake-Cook's Facts PP4-5; 12(N) PP4-5; Jochem Aff. P4.)

 Dr. Jochem had no further personal contact with Plaintiff. (Lake-Cook's Facts P6.) However, Dr. Jochem did receive a letter from Plaintiff, dated August 20, 1992, detailing the events of that morning. (12(N) P6; Exhibit 1 to Exhibit C of Lake-Cook's Motion for Summary Judgment.) In the letter, Plaintiff states "On being seated there [at Dr. Jochem's office], I removed a tape recorder from my briefcase. With the tape recorder in full view, I proceeded to tape record the IME. You refused to continue with the tape recorder. I left." Id. The letter goes on to impliedly threaten Lake-Cook with possible litigation unless Lake-Cook acceded to her demand stating "Your actions are interfering with my employment relationship and with obtaining employee benefits covered by ERISA. Please reconsider your decision and contact me to reschedule the IME, which I will tape record, as is my right." On September 8, 1992, Abbott again requested that Plaintiff participate in an IME. (Reply at 3; Surreply P20.)

 On September 15, 1992, Dr. Jochem sent a letter to Dr. Weisenberger which outlined Lake-Cook's contact with Plaintiff and included a $ 75.00 bill for his services. (Motion Ex. C, 3.). Effective November 17, 1992, Plaintiff was terminated by Abbott. (Response, Ex. 2.). Dr. Jochem never conducted an examination of Plaintiff. (Reply at 2&4; Surreply PP3&23.)

 II. SUMMARY JUDGMENT STANDARD

 Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Celotex Corporation v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

 When reviewing the record on summary judgment, the court must draw all reasonable inferences in the light most favorable to the nonmovant. Hill v. Burrell Communications Group, Inc., 67 F.3d 665, 667 (7th Cir. 1995). To avert summary judgment, however, plaintiff must do more than raise "some metaphysical doubt as to the material facts." Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988) (quoting Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (footnote omitted)). A dispute about a material fact is genuine only if the evidence presented is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d ...


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