Rubinow v. Boehringer Ingelheim Pharmaceuticals Inc

Filing 47

ORDER granting in part and denying in part 39 Plaintiff's Motion to Compel. See the attached Ruling. Signed by Judge Vanessa L. Bryant on 5/10/10. (Engel, J.)

UNITED STATES DISTRICT COURT D IS T R IC T OF CONNECTICUT

C AR O L RUBINOW, P la in tiff, v. B O E H R IN G E R INGELHEIM, P H AR M AC E U T IC AL S , INC. D e fe n d a n t.

: : : : : : : :

C IV IL ACTION NO. 3 : 0 8 -c v -1 6 9 7 (VLB)

M a y 10, 2010

R U L IN G AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL [Doc. #39] I. INTRODUCTION T h is employment discrimination action was commenced by the Plaintiff, C a r o l Rubinow, on November 7, 2008. The Plaintiff is a former employee of the D e fe n d a n t, Boehringer Ingelheim Pharmaceuticals, Inc. ("Boehringer"), a multin a tio n a l corporation with offices in many locations around the world. Boehringer te r m in a te d the Plaintiff's employment in July 2007, when she was 49 years old. She alleges that her discharge was motivated by age animus in violation of the Ag e Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. a n d the Connecticut Fair Employment Practices Act ("CFEPA"), Conn. Gen. Stat. § 4 6 a -6 0 . T h e Court issued a Scheduling Order in this matter on March 19, 2009. See D o c . #15. Pursuant to that Order, the Court set the deadline to complete discovery fo r March 16, 2010 and the dispositive motion deadline for May 14, 2010. On J a n u a r y 21, 2010, the Plaintiff filed a motion for 60 additional days to conduct d is c o v e r y, claiming that a discovery dispute between the parties necessitated an

extension of the discovery deadline. The Defendant objected to that motion on the b a s is that the case was over one year old and that discovery had been ongoing for n e a r ly that long. On January 28, 2010, the Court conducted a telephone c o n fe r e n c e with the parties in an attempt to resolve their discovery dispute as c o n te m p la te d by Fed. R. Civ. P. 37. During the conference, the parties agreed to m e e t and confer regarding the details of their discovery dispute. On the basis of th a t commitment, the Court entered an Order the same day denying the Plaintiff's m o tio n for extension of time. See Doc. #36. In accordance with the Court's c h a m b e r s practices, the Court invited the parties to bring any discrete legal issues th a t they were unable to resolve to the Court for resolution in the form of a brief jo in t statement summarizing the dispute and each party's position with respect th e r e to . Id. Contrary to the Court's instruction, rather than filing a joint statement or a m o tio n to compel pursuant to Fed. R. Civ. P. 37, on March 3, 2010, the Plaintiff file d yet another motion for extension of the discovery deadline, claiming that an u n s p e c ifie d discovery dispute between the parties remained unresolved and that th e Plaintiff was unable to conduct depositions of the Defendant's fact witnesses w ith o u t obtaining discovery to which she claimed she is entitled. See Doc. #37. Since it had become clear that the parties were unable to resolve any portion of th e ir discovery dispute absent Court intervention, on March 4, 2010, the Court is s u e d an Order directing the Plaintiff to file a motion to compel by March 8, 2010 if she continued to maintain that she had not received discovery to which she is

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legally entitled. See Doc. #38. Subsequently, on March 8, 2010, the Plaintiff filed th e instant motion to compel, in which she seeks to compel supplemental r e s p o n s e s to numerous interrogatories and requests for production of documents. See Doc. ##39, 40. The Defendant filed its opposition to the Plaintiff's motion on M a r c h 12, 2010. See Doc. #41. II. DISCUSSION T h e scope of discovery in civil actions is defined by Rule 26(b) of the F e d e r a l Rules of Civil Procedure. Pursuant to Rule 26(b)(1), parties "may obtain d is c o v e r y regarding any nonprivileged matter that is relevant to any party's claim o r defense - including the existence, description, nature, custody, condition, and lo c a tio n of any documents or other tangible things and the identity and location of p e r s o n s who know of any discoverable matter." The term "relevance" is c o n s tr u e d broadly to "encompass any matter that bears on, or that reasonably c o u ld lead to other matter that could bear on, any issue that is or may be in the c a s e ." James v. Tilghman, 194 F.R.D. 398, 400 (D. Conn. 1999) (quoting O p p e n h e im e r Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). The party receiving a request must not only produce information which is admissible as evidence, but a ls o information which "appears reasonably calculated to lead to admissible e v id e n c e ." James, 194 F.R.D. at 400. However, there are limits on the scope of discovery. Pursuant to Rule 2 6 (b )(2 ), the Court has an obligation to ensure that discovery requests are r e a s o n a b le . The Court must limit the extent of discovery if it determines that the

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discovery sought is unreasonably cumulative or duplicative or overly b u r d e n s o m e . See Fed. R. Civ. P. 26(b)(2). Moreover, discovery of information that is not "reasonably calculated to lead to the discovery of admissible evidence" is im p e r m is s ib le . See Yancey v. Hooten, 180 F.R.D. 203, 207 (D. Conn. 1998). The d is tr ic t court has broad discretion in resolving discovery disputes. Id. In determining whether to exercise its discretion to order the Defendant to r e s p o n d to the discovery requests at issue, the Court first considers the Plaintiff's c la im s , as the nature and elements of her claims dictate the scope of discovery to w h ic h she is entitled. The Plaintiff's Second Amended Complaint asserts three c la im s against the Defendant: first a claim for violation of the ADEA; second, a c la im for violation of the CFEPA; and third, a claim for intentional infliction of e m o tio n a l distress. In order to establish a prima facie case of age discrimination under the AD E A, a plaintiff must show "(1) that she was within the protected age group, (2) th a t she was qualified for the position, (3) that she experienced adverse e m p lo ym e n t action, and (4) that such action occurred under circumstances giving r is e to an inference of discrimination." Gorzynski v. Jetblue Airways Corp., 596 F .3 d 93, 107 (2d Cir. 2010). The elements of a prima facie claim for discrimination u n d e r the CFEPA are substantially similar to the elements of an ADEA claim. Under the CFEPA, a plaintiff must prove that "(1) she was a member of a protected c la s s ; (2) she was qualified for her position; (3) she was discharged; and (4) the te r m in a tio n occurred under circumstances giving rise to an inference of

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discrimination." Sample v. Wal-Mart Stores, Inc., 273 F. Supp. 2d 185, 188 (D. C o n n . 2003). If the plaintiff establishes a prima facie case of age discrimination u n d e r the ADEA or CFEPA, the burden then shifts to the defendant to articulate " s o m e legitimate, nondiscriminatory reason" for its adverse employment action. Gorzynski, 595 F.3d at 106. Once such a reason is provided by the defendant, the p la in tiff may still prevail if she can show that the reason given was a pretext for d is c r im in a tio n and that she would not have been terminated but for her age. Id. (c itin g Gross v. FBL Financial Services, 129 S.Ct. 2343, 2352 (2009)). Finally, to prevail on a claim for intentional infliction of emotional distress, a plaintiff must prove "(1) that the actor intended to inflict emotional distress or th a t he knew or should have known that emotional distress was the likely result of h is conduct; (2) that the conduct was extreme and outrageous; (3) that the d e fe n d a n t's conduct was the cause of the plaintiff's distress; and (4) that the e m o tio n a l distress sustained by the plaintiff was severe." Appleton v. Bd. of Educ. o f Town of Stonington, 254 Conn. 205, 210 (2000). Importantly, this case involves a single plaintiff who alleges that she was in te n tio n a lly discriminated against by her employer because of her age. Thus, the P la in tiff is asserting a "disparate treatment" claim under the ADEA and CFEPA. See Zawacki v. Realogy Corp., 628 F. Supp. 2d 274, 280 (D. Conn. 2009) ("In a d is p a r a te treatment case, liability depends on whether the protected trait (under th e ADEA, age) actually motivated the employer's decision.") (quoting Hazen P a p e r Co. v. Biggins, 507 U.S. 604, 610 (1993)).

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Contrastingly, "disparate impact" claims "involve employment practices th a t are facially neutral in their treatment of different groups but that in fact fall m o r e harshly on one group than another and cannot be justified by business n e c e s s ity." Id. In order to state a claim under a disparate impact theory, an e m p lo ye e must do more than simply allege a disparate impact on workers, or id e n tify a generalized policy that leads to such an impact. Zawacki, 628 F. Supp. 2 d at 280. Instead, the employee must isolate and identify "the specific e m p lo ym e n t practices that are allegedly responsible for any observed statistical d is p a r itie s ." Id. Although the Plaintiff alleges in her Second Amended Complaint th a t the Defendant had a generalized policy of terminating older workers and r e p la c in g them with younger workers, that allegation seems to support a disparate tr e a tm e n t claim, as she fails to identify any specific, facially neutral policy that d is p r o p o r tio n a te ly impacts older employees. Instead, all of the factual allegations in her Second Amended Complaint relate to her individual claim that her s u p e r v is o r s intentionally placed her on probation and then terminated her e m p lo ym e n t because of her age and because she "looked too old." Furthermore, the Plaintiff's Second Amended Complaint does not properly a lle g e a "pattern and practice" claim. A "pattern and practice" claim is a type of d is p a r a te treatment claim that alleges widespread acts of intentional d is c r im in a tio n against a class of individuals rather than isolated or sporadic in c id e n ts of discrimination against a single individual. See Robinson v. MetroN o r th Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir. 2001). In order to succeed on

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such a claim, a plaintiff must prove that intentional discrimination was the d e fe n d a n t's "standard operating procedure." Id. As an initial matter, although not c o n c lu s ive ly decided by the Second Circuit, several district courts within this C ir c u it have suggested that a plaintiff cannot bring a "pattern and practice" claim fo r age discrimination outside of the class action context. See, e.g., Foster-Bey v. H e n d e r s o n , 3:98-CV-01097 (EBB), 2000 WL 620331, at *1 n.1 (D. Conn. Apr. 7, 2000) (" T h e Court is not convinced that a plaintiff may bring a `pattern and practice' c la im in a non-class action complaint."); Milani v. IBM, 322 F. Supp. 2d 434, 453 n .3 4 (S.D.N.Y. 2004) ("It is by no means clear that a private plaintiff can even bring a `pattern-or-practice' claim in a non-class action complaint"); Blake v. Bronx L e b a n o n Hosp. Ctr., No. 02 Civ. 3827 (CBM), 2003 WL 21910867, at *5 (S.D.N.Y. Au g . 7, 2003) ("the court doubts that a plaintiff can bring a `pattern and practice' c la im in a non-class action complaint"). In any event, even if a single plaintiff could assert a "pattern and practice" c la im , the allegations contained in the Second Amended Complaint do not support s u c h a claim. Other than herself, the Plaintiff merely identifies six other "older" or " o ld e r looking" employees whom the Defendant allegedly terminated or forced to q u it or retire, out of a workforce of several thousand, and her Complaint fatally fa ils to allege particularized facts describing the conditions surrounding their te r m in a tio n or forced retirement. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (re q u irin g a complaint to "contain sufficient factual matter, accepted as true, to s ta te a claim to relief that is plausible on its face") (internal quotation marks

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omitted). These allegations are insufficient to state a "pattern and practice" claim. See Krish v. Conn. Ear, Nose & Throat, Sinus & Allergy Specialists, P.C., 607 F. S u p p . 2d 324, 329-32 (D. Conn. 2009) (noting that plaintiffs bringing "pattern and p r a c tic e " claims are generally required to provide evidence of a concrete policy a n d /o r statistical evidence in support of the claim combined with anecdotal e v id e n c e to support the claim, and dismissing "pattern and practice" claim where p la in tiff merely alleged three instances of age discrimination that followed a s im ila r pattern); Foster-Bey, 2000 WL 620331, at *1 n.1 (recognizing the need for a p la in tiff asserting a "pattern and practice" claim against a large entity to provide a " s ta tis tic a l sampling" in order to support the claim); Blake, 2003 WL 21910867, at * 5 ("a plaintiff does not properly allege an ongoing discriminatory policy simply by in v o k in g the magic words "pattern" or "practice"). With these principles in mind, the Court now turns to the specific in fo r m a tio n sought by the Plaintiff in her motion to compel. A. Demographic Information on Employees Hired, Fired, or Laid Off by Defendant In production requests 18-23, the Plaintiff seeks disclosure of the names, title s , grade, market area, department, ages, and reasons for termination for all e m p lo ye e s who were fired or left Boehringer during the time period from January 1 , 2002 to December 31, 2007. In production requests 24-29, the Plaintiff seeks the s a m e information for all employees who were hired by Boehringer during the time p e r io d from January 1, 2002 to December 31, 2007. The Plaintiff argues that she is entitled to this discovery because she has

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pleaded disparate treatment, disparate impact, and "pattern and practice" theories in her Second Amended Complaint. In support of her disparate impact and " p a tte r n and practice" claims, the Plaintiff asserts in Counts One and Two of her S e c o n d Amended Complaint that the Defendant "exhibited a continuous pattern a n d practice of age discrimination and/or had a policy of discriminating against o ld e r workers above the age of 49 years of age, in favor of hiring, retaining and e m p lo yin g younger workers." Compl. ¶¶ 90, 98. The only legal authority she cites in support of her entitlement to the exceedingly broad discovery that she requests is a statement made by the Supreme Court in dicta in a disparate impact case c o m m e n tin g generally on the scope of the discovery rules in civil cases. See W a r d s Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 657 (1989) ("liberal civil d is c o v e r y rules give plaintiffs broad access to employers' records in an effort to d o c u m e n t their claims"). While Fed. R. Civ. P. 8(d)(2) permits the pleading of multiple theories in the a lte r n a tiv e in a single count or separately, as discussed above, the Plaintiff's S e c o n d Amended Complaint fails to adequately plead a disparate impact or " p a tte r n and practice" claim. The Plaintiff's assertions in the Second Amended C o m p la in t regarding the Defendant's alleged "pattern and practice" of age d is c r im in a tio n and maintenance of a discriminatory policy are wholly conclusory. Instead, all of the factual allegations contained in the Second Amended Complaint r e la te to her claim that she herself was intentionally discriminated against on the b a s is of her age. Thus, this action plausibly alleges only a disparate treatment

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claim brought by a single plaintiff. The Defendant employs over 9,000 people in th e United States alone. The Plaintiff has failed to show how the company-wide d a ta she has requested is reasonably calculated to lead to the discovery of a d m is s ib le evidence in a single plaintiff age discrimination action relating to the P la in tiff's termination from her position as a PR Coordinator IV at the Defendant's R id g e fie ld , Connecticut location. Moreover, as established by the authority cited by the Defendant, discovery in disparate treatment cases brought by a single employee such as this one is lim ite d to information regarding employees who are similarly situated to the P la in tiff. See, e.g., Mazella v. RCA Global Communications, 642 F. Supp. 1531, 1 5 4 7 -4 8 (S.D.N.Y. 1986) (stating that, in order for evidence relating to other e m p lo ye e s to be relevant in a disparate treatment case, those employees must be " s itu a te d similarly" to the plaintiff, meaning that they "must have reported to the s a m e supervisor as the plaintiff, must have been subject to the same standards g o ve r n in g performance evaluation and discipline, and must have engaged in c o n d u c t similar to the plaintiff's, without such differentiating or mitigating c ir c u m s ta n c e s that would distinguish their conduct or the appropriate discipline fo r it"); Hall v. Family Care Visiting Nurse, No. 3:07CV911 (JCH), 2008 WL 5191591, a t *3 (D. Conn. Dec. 10, 2008) (where plaintiff asserted employment discrimination c la im s based upon her gender and pregnancy, court permitted limited discovery of in fo r m a tio n contained in personnel files only for pregnant employees holding the s a m e position as the plaintiff); Raghavan v. Bayer USA, Inc., No. 3:05-CV-682

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(CFD), 2007 WL 2099637, at *2-3 (D. Conn. July 17, 2007) (holding that evidence r e la tin g to how supervisors in locations other than plaintiff's location treated e m p lo ye e s with different work responsibilities than the plaintiff was not relevant to plaintiff's benefits discrimination claim and therefore was not discoverable); P a tte r s o n v. Food Group LLC/Pond House Cafe, No. Civ. 3:02 CV 1137 JCH, 2004 W L 1701079, at *1-2 (D. Conn. Mar. 31, 2004) (denying plaintiff's motion to compel d o c u m e n ts related to employees who were not similarly situated to him, and d e n yin g plaintiff's motion to compel date of hire and race of individuals hired for e m p lo ym e n t by defendant on the basis that hiring information was not relevant to p la in tiff's claim that he was terminated on the basis of his race and/or age); Suggs v . Capital Cities/ABC, Inc., 122 F.R.D. 430, 431 (S.D.N.Y. 1988) (holding that p la in tiff, who alleged that her employer denied her a promotion to the position of s ta ff field producer because of her race, was not entitled to discovery regarding e m p lo ye e s in other positions). Ac c o r d in g ly, the Court holds that the Plaintiff is not entitled to discovery of th e broad company-wide data regarding the Defendant's firing and hiring of every s in g le employee over a six-year period that she requests. Instead, this request is p r o p e r ly limited to discovery of the requested information regarding employees s im ila r ly situated to the Plaintiff, meaning employees who reported to the same s u p e r v is o r (s ) as the plaintiff, were subject to the same standards governing p e r fo r m a n c e evaluation and discipline, and engaged in conduct similar to the P la in tiff's , without differentiating or mitigating circumstances that would

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distinguish their conduct or the appropriate discipline for it. To the extent that th is information has not already been provided to the Plaintiff, the Court directs th e Defendant to produce such information to the Plaintiff within ten days of the d a te of this Order. B. Supervisors' Personnel Files In production requests 13 and 14, the Plaintiff seeks the personnel files for h e r former supervisor, Marybeth McGuire, and McGuire's supervisor, Amy Fry. The Defendant has responded to this request by providing the Plaintiff with d e ta ile d "Max Plans" for McGuire for the two years she supervised the Plaintiff, a n d has further represented that McGuire's personnel files contain no disciplinary w a r n in g s . The Plaintiff contends that the Defendant's response is overly narrow. She claims that she is entitled to "all performance reviews, letters and memos of d is c ip lin e , performance compensation such as bonus and equity awards and m is c e lla n e o u s documents related to the supervisor's performance of her duties as a n employee and a manager." The Plaintiff claims that she is also entitled to r e c e iv e the "supervisor's file" for McGuire and Fry, and the "recruiter's portion of th e personnel file" for these supervisors. The Plaintiff argues that she is entitled to this information because McGuire and Fry directly managed her employment a n d allegedly made the decision to terminate her employment. Connecticut has explicitly recognized the privacy interests inherent in p e r s o n n e l information. See Conn. Gen. Stat. § 31-128f. While the Plaintiff's e n title m e n t under Rule 26(b) to discovery relevant to her claims may overcome

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these privacy interests, her present request is patently overbroad. The Plaintiff fa ils to explain how her request is reasonably calculated to lead to the discovery o f admissible evidence. For instance, she requests the "supervisor's file" for M c G u ir e and Fry, but neglects to inform the Court what the "supervisor's file" is or w h a t she believes it is likely to contain. In addition, the Plaintiff requests the " r e c r u ite r 's portion of the personnel file" for McGuire and Fry, which ostensibly c o n ta in s information on new hires and promotions. However, as explained above, d is c o v e r y in disparate treatment cases such as this case is limited to information r e g a r d in g employees who are similarly situated to the Plaintiff. The Plaintiff fails to make any showing as to how hiring and promotional information for employees w h o were not similarly situated to her could possibly be relevant to her claim for d is c r im in a to r y termination. See Patterson, 2004 WL 1701079, at *2 (denying p la in tiff's motion to compel information regarding employees hired by defendant b e c a u s e such information was not relevant to plaintiff's claim that he was te r m in a te d on the basis of his race and/or age). Ac c o r d in g ly, the Court holds that production requests 13 and 14 must be s u b s ta n tia lly limited. The Plaintiff is entitled to receive only those portions of the p e r s o n n e l files for McGuire and Fry that reflect their education, training, and e x p e r ie n c e as a manager, including their managerial abilities, accomplishments, d e v e lo p m e n ta l opportunities, and deficiencies, because this information may be r e le v a n t to her claim that these supervisors intentionally discriminated against h e r . The Plaintiff is also entitled to receive information regarding McGuire and

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Fry's treatment of job applicants and employees who were similarly situated to the P la in tiff, as defined above. To the extent that this information has not already b e e n provided to the Plaintiff, the Court directs the Defendant to produce such in fo r m a tio n to the Plaintiff within ten days of the date of this Order. If any d o c u m e n ts to be produced contain information regarding employees who were n o t similarly situated to the Plaintiff, the Defendant may redact this information. C. Remaining Interrogatories and Production Requests In addition to the issues discussed above, the Plaintiff objects to the D e fe n d a n t's responses to a number of interrogatories on the basis that the r e s p o n s e s are "conclusory," "evasive," or "unintelligible." 1 The Court has r e v ie w e d the Defendant's responses and concludes that they are responsive and c o m p r e h e n s ive . The Plaintiff is not entitled to dictate the specific manner in w h ic h the Defendant responds to her interrogatories, or the precise language used in the Defendant's responses. To the extent that a party has reason to believe that a respondent has additional responsive information, the proper procedural tools to elicit that information are supplemental interrogatories and depositions. S im ila r ly, the Plaintiff objects to the Defendant's responses to several r e q u e s ts for production of documents on the basis that the Defendant is w ith h o ld in g documents due to its general objections.2 However, the Defendant

The interrogatory responses to which the Plaintiff objects on this basis a r e the Defendant's responses to interrogatories 3-5, 9-20, and 23-24. The request for production responses to which the Plaintiff objects on th is basis are the Defendant's responses to production requests 1, 3-5, 9-11, and 16.
2

1

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has represented to the Court and to Plaintiff's counsel, both verbally during the J a n u a r y 28, 2010 telephone conference and in writing, that it has withdrawn all g e n e r a l objections lodged in response to the Plaintiff's interrogatories and p r o d u c tio n requests and produced all documents in its possession responsive to th e s e requests. See Pl. Mem. at 5-6. The Plaintiff is unable to articulate any p a r tic u la r reason why she believes that the Defendant is withholding responsive d o c u m e n ts , apart from her counsel's speculation. Notably, the one responsive d o c u m e n t that the Plaintiff claims to have discovered through its own in v e s tig a tio n that she contends was not produced by the Defendant - a February 2 5 , 2007 email between Marybeth McGuire and Karen Apgar - was in fact produced b y the Defendant nearly six months before the Plaintiff filed the instant motion to c o m p e l. See Def. Mem. at 12. This suggests that the Plaintiff has been less than d ilig e n t in reviewing the documents that have been produced by the Defendant, w h ic h may be contributing to the parties' inability to resolve their discovery d is p u te s . Attorneys are officers of the Court with a professional obligation to conduct d u e diligence and a duty of candor to the tribunal. The Court correctly relies on th e ethical conduct of attorneys admitted to practice before it. Bald accusations in tim a tin g a failure to discharge those duties simply demean the profession and fo s te r incivility without aiding the Court in overseeing the discovery process. III. CONCLUSION For the foregoing reasons, the Plaintiff's motion to compel [Doc. #39] is

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GRANTED IN PART and DENIED IN PART. To the extent that the Defendant has n o t already provided the Plaintiff with all discovery to which she is entitled as d is c u s s e d above, the Defendant is ordered to do so within ten days of the date of th is Order.

IT IS SO ORDERED.

/s/ Vanessa L. Bryant U n ite d States District Judge

Dated at Hartford, Connecticut: May 10, 2010.

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