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Sharon Murray v. Nationwide Better Health

January 4, 2012


The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge.


Thursday, 05 January, 2012 11:51:14 AM

Clerk, U.S. District Court, ILCD


This cause is before the Court on Plaintiff's Appeal to District Court From Magistrate Judge's December 5, 2011 Report and Recommendation (d/e 196). In that Report and Recommendation, United States Magistrate Judge Byron G. Cudmore recommended that Plaintiff's Emergency Motion for Injunctive Relief, Motion for Protective Order, Motion to Argue Plaintiff's Emergency Motion for Injunctive Relief and Motion for Protective Order Orally Due to Disability Restrictions and Notice of Motions (Motion) (d/e 180) be denied. Because Plaintiff sought injunctive relief against nonparties for matters that are not the subject of the instant lawsuit, the Report and Recommendation is ADOPTED in its entirety and the Motion is DENIED.


Defendant Nationwide Better Health (NBH) was the third-party administrator who handled Family Medical Leave Act (FMLA) (29 U.S.C. § 2601 et seq.) and short term disability claims for Plaintiff's employer AT&T Mobility, LLC (AT&T). Defendants Cynthia Northrup and Barbara Ley were employees of NBH.

In 2008, Plaintiff, a former AT&T employee, sued AT&T for violations of the FMLA and the Americans with Disabilities Act (ADA). In September 2009, summary judgment was granted in favor of AT&T, and the Seventh Circuit affirmed. See Murray v. AT&T Mobility, 2009 WL 2985721 (C.D. Ill. 2009), aff'd 374 Fed. Appx. 667 (7th Cir. 2010).

In October 2010, Plaintiff filed the Complaint at issue herein alleging violations of the FMLA, the Employment Retirement Income Security Act (29 U.S.C. § 1001 et seq.) (ERISA), perjury claims, violations of Plaintiff's Constitutional rights, and various state law claims. The factual basis of the Complaint is primarily based on Plaintiff's belief that (1) Northrup provided intentionally misleading information regarding the authenticity of a document presented in the AT&T litigation and (2) records were not preserved.

In July 2008, this Court entered an order staying discovery pending a determination on Defendants' Motion for Summary Judgment with the exception that Plaintiff was entitled to conduct limited discovery on (1) whether NBH was a "covered employer" under the FMLA; (2) whether NBH, Northrup, and Ley are "fiduciaries" of a "plan" under ERISA; (3) any agreements, policies, or contracts entered into between NBH and AT&T during the relevant time and related to the two issues cited above; and (4) the information provided by Northrup and Baugh in their affidavits in support of the Motion for Summary Judgment.

Numerous pleadings were thereafter filed regarding discovery in this case. As is relevant to this Motion, Plaintiff sought to depose three nonparty witnesses:

(1) Gaye Ann Pusch, a former AT&T employee; (2) Nancy (Wells) Vansyoc, a current AT&T employee; and (3) Christopher Meyers, a current AT&T employee. See d/e 137, 138. Subpoenas were issued in May 2011.

On August 18, 2011, attorney Michael A. Warner, Jr., filed an Appearance of Counsel on behalf of AT&T, Myers, Vansyoc, and Pusch. See d/e 141. Attorney Warner also filed (1) an objection to Plaintiff's request to depose Myers, Vansyoc, and Pusch (d/e 142); and(2) a Motion for Protective Order asking, among other things, that the Court bar Plaintiff from directly contacting AT&T employees, require Plaintiff direct her communications through AT&T counsel, and bar Plaintiff from deposing Myers, Vansyoc, and Pusch. (d/e 143). On August 31, 2011, Judge Cudmore ruled on these motions, granting them in part and denying them in part. See d/e 150. Currently pending is Plaintiff's motion to amend her Complaint to add, among other things, claims against AT&T, Pusch, and Sedgwick CMS (Sedgwick), whom Plaintiff identifies as the third party administrator for Cingular Wireless/AT&T. See d/e 158, 159, 160 , On October 30, 2011, Plaintiff filed the Motion at issue herein asking for injunctive relief against AT&T and Sedgwick. See d/e 180. In the Motion, Plaintiff asserts that she has suffered, and continues to suffer, harassment and discrimination at the hands of Defendants. Motion, ¶ 1. Despite referencing "Defendants", the incidents of which Plaintiff complains relate to AT&T and Sedgwick and include the following events that occurred in the Fall of 2011: that AT&T and/or Sedgwick (1) failed to engage in the interactive process; (2) requested from Plaintiff a more specific ADA accommodation document; (3) requested a third independent medical examination; and (4) directed Plaintiff to see a physician in Chicago. Some of these actions appear to be related to proceedings before the workers' compensation commission.

Plaintiff seeks (1) a preliminary injunction enjoining AT&T and Sedgwick from "continuing the acts [Plaintiff] has described" and (2) relief the Court finds fit to discourage Defendants, AT&T/Sedgwick from engaging in any future misconduct." Prayer for Relief ΒΆΒΆ 3, ...

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