Altamirano v. Chemical Safety and Hazard Investigation Board
Filing
68
ORDER granting 52 Motion to Quash by Nonparty Bureau of the Fiscal Service; granting 54 Motion for Protective Order by Nonparty Bureau of the Fiscal Service, as set forth in the Order, By Magistrate Judge Michael J. Watanabe on 6/19/2013.(mjwcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01728-PAB-MJW
FRANCISCO ALTAMIRANO,
Plaintiff(s),
v.
CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD,
Defendant(s).
ORDER REGARDING
(1) MOTION TO QUASH BY NONPARTY BUREAU OF THE FISCAL SERVICE
(DOCKET NO. 52)
AND
(2) MOTION FOR PROTECTIVE ORDER BY NONPARTY BUREAU OF THE FISCAL
SERVICE (DOCKET NO. 54)
Entered by Magistrate Judge Michael J. Watanabe
This matter was before this court on June 6, 2013, for hearing on: (1) the Motion
to Quash by Nonparty Bureau of the Fiscal Service (docket no. 52) and (2) the Motion
for Protective Order by Nonparty Bureau of the Fiscal Service (docket no. 54). The
court has reviewed the subject motions (docket nos. 52 and 54), the responses (docket
nos. 59 and 60), the replies (docket nos. 63 and 64), and the Joint Status Report
(docket no. 67). In addition, the court has considered applicable Federal Rules of Civil
Procedure, case law, and oral argument by counsel for Plaintiff and the Nonparty and
has taken judicial notice of the court file. The court now being fully informed makes the
2
following findings of fact, conclusions of law, and order.
FINDING OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.
That I have jurisdiction over the subject matter and over the parties
to this lawsuit;
2.
That venue is proper in the state and District of Colorado;
3.
That each party has been given a fair and adequate opportunity to
be heard;
4.
That Plaintiff Francisco Altamirano is a 59-year-old MexicanAmerican man who worked for the United States Chemical Safety
and Hazard Investigation Board (“CSB”) between July 2002 and
November 16, 2009. In this employment case, Plaintiff has
claimed, inter alia, that the CSB discriminated against him because
of his race, national origin, and/or age in terminating his
employment. Plaintiff used his government-travel charge cards
while he was employed by CSB. These cards can only be used for
government travel, and CSB cardholders, like Plaintiff, are
responsible for timely payment. The Bureau of the Public Debt
(“BPD”) has been consolidated into the Bureau of the Fiscal
Service, and it administers certain aspects of the government travel
charge card program for CSB employees;1
1
Pursuant to Treasury Order 136-1, issued on October 7, 2012, the bureaus
formerly known as the Bureau of the Public Debt and the Financial Management
3
5.
That Plaintiff has noticed the deposition of the BPD [n/k/a Bureau of
Fiscal Service] under Fed. R. Civ. P. 30(b)(6) and has served a
subpoena upon the BPD. In the subject motions (docket nos. 52
and 54), the BPD seeks an Order from this court quashing the
subpoena and staying the deposition because it would require
testimony beyond that authorized under BPD’s Touhy regulations.
See U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (Supreme
Court recognized federal agencies’ ability to issue regulations
regarding employees’ testimony and production of documents. An
agency’s regulations regarding testimony by its employees are
often called “Touhy regulations.” ). I find that 31 CFR § 1.11
contains BPD’s Touhy regulations. BPD argues that the scope of
the Rule 30(b)(6) notice would cause an undue burden, would
consume a large amount of government time and money for private
purposes, and would require BPD to restore and review at least
126 email backup tapes, which would take an estimated 230 hours
and result in a cost of over $13,000;
6.
That CSB terminated Plaintiff because its investigation determined
that Plaintiff:
a.
Misused his government-travel charge card 349 times
for a total of more than $25,000 in charges by using it
Service were consolidated and redesignated as the Bureau of the Fiscal Service.
4
for purposes other than government travel;
b.
Failed to pay the balance of his government- travel
charge card timely for 67 of the 86 billing periods he
held the card; and
c.
Used his government-issued laptop to store sexuallyoriented materials, including pictures and videos
containing nudity; used his government email account
to send sexually-oriented emails; and used his
government cell phone to receive a sexually-explicit
photo he requested using his government email
account. See exhibit 1 ( Proposal to Remove) at 2-6
and exhibit 2 (Decision of Remove) attached to
subject motion (docket no. 52);
7.
That per the Joint Status Report (docket no. 67), the Plaintiff agrees
that the emails of Sue Burton, a former BPD employee, need not be
reviewed in order to prepare for the Rule 30(b)6) deposition. The
Rule 30(b)(6) deposition notice covers certain communications from
August 1, 2004, to November 16, 2009. See docket no. 59-10.
Accordingly, Plaintiff is now seeking the emails from former BPD
employees Robyn Rice and Pam Enlow only during the relevant
time frame listed above;
8.
That the emails that Plaintiff is seeking are maintained only on the
active server for 90 days and are stored on backup tapes that are
5
stored offsite, unless they are individually archived. Both Rice and
Burton retired from BPD in or about December 2011, so the backup
tapes are the only source for their emails. BPD estimates that
there are a total of 126 email backup tapes that BPD would have to
restore to the server in order to access the email data requested for
Rice and Burton. As mentioned above, this task of restoring emails
for the above time frame could require up to 230 hours of time to do
at a cost of roughly $13,000;
9.
That per 31 CFR § 1.11(c), no BPD employee may provide
testimony regarding “any information relating to or based upon
Department documents, or disclose any information or produce
materials acquired as part of the performance of that employee’s
official duties or official status, without the prior authorization” of
appropriate agency counsel. I find that a Rule 30(b)(6) deposition
falls under this requirement;
10.
That 31 CFR § 1.11(e) outlines relevant factors when BPD decides
to approve testimony by an employee, including:
(i)
Whether the request or demand is unduly burdensome;
...
(iii)
Whether the time and money of the United States would be
used for private purposes;
...
(iv)
The extent to which the time of employees for conducting
6
official business would be compromised;
...
(vi)
Whether the request demonstrates that the information
requested is relevant and material to the action pending,
genuinely necessary to the proceeding, unavailable from
other sources, and reasonable in its scope;
11.
That demand for the emails of Rice and Enlow during the relevant
period is unduly burdensome, noting that the BPD would have to
expend roughly 230 hours of time by its employees to restore the
requested emails at a cost of over $13,000;
12.
That the use of government time and money for private purposes
would be roughly 230 hours of time of Nonparty BPD employees to
restore the requested emails at a cost of over $13,000;
13.
That the BPD employees’ official duties would be compromised
substantially, noting that roughly 230 hours of time would be spent
restoring these emails, and such employees of the BPD would be
unavailable to perform their official day-to-day duties; and
14.
That Plaintiff’‘s Attorney Mr. Roseman’s affidavit [exhibit 10
attached to the subject motion (docket no. 52)] does not
demonstrate why the requested information above is relevant.
However, during the hearing before this court on the subject motion
(docket no. 52), Plaintiff’s attorney Mr. Roseman proffered that the
requested information is relevant on the issue of pretext. In
7
essence, Plaintiff argues that the requested information will show
that misconduct of the same type or magnitude [i.e., misuse of
government-travel charge credit cards] by other fellow employees
who were not disciplined or terminated. Plaintiff has already
received information required for this analysis from CSB and from
Citi. Under this theory, Plaintiff will not only have to show fellow
employees misused government travel charge credit cards, but he
must also show that the decisionmakers were aware of the
comparator’s characteristics. See Swackhammer v. Sprint/United
Management Co., 493 F.3d 1160, 1170 (10th Cir. 2007) (in
evaluating pretext, “it is not what [the decisionmaker] should have
known that matters, but whether he acted in good faith on the
beliefs he held.”). In this case, Plaintiff has failed to demonstrate
through any evidence that the costly and burdensome discovery
from BPD that Plaintiff seeks would show that the decisionmaker
was aware of a comparator’s relevant characteristics. Lastly,
Plaintiff has not presented any evidence that the additional
preparation and expense he seeks to impose upon BPD, as
outlined above, is reasonably calculated to lead to admissible
evidence regarding a comparator. Accordingly, the Motion to
Quash by Nonparty Bureau of the Fiscal Service (docket no. 52)
and (2) the Motion for Protective Order by Nonparty Bureau of the
Fiscal Service (docket no. 54) should both be granted.
8
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.
That the Motion to Quash by Nonparty Bureau of the Fiscal Service
(docket no. 52) is GRANTED;
2.
That the Motion for Protective Order by Nonparty Bureau of the
Fiscal Service (docket no. 54) is GRANTED; and
3.
That each party shall pay their own attorney fees and costs for this
motion.
Done this 19th day of June 2013.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?