Asante-Addae v. Sodexo, Inc et al
Filing
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ORDER granting in part and denying in part Plaintiff's 45 Motion to Compel Discovery; denying Defendant's 48 Motion for Protective Order. See the attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 5/16/14. (Ives, D)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
YAA ASANTE-ADDAE,
Plaintiff,
v.
SODEXO, INC.,
Defendant.
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CIVIL ACTION NO.
3:13-CV-00489 (VLB)
May 16, 2014
Memorandum of Decision Granting in Part and Denying in Part Plaintiff's Motion
to Compel Discovery [Dkt. No. 45] and Denying Defandant’s Motion for Protective
Order [Dkt. No. 48]
Before the Court are the Plaintiff's motion to compel discovery (dkt. no. 45),
to which the Defendant objects, and the Defendant's motion for protective order
(dkt. no. 48).
I. Background
This is an employment discrimination case in which the Plaintiff, Yaa
Asante-Addae (“Asante”) alleges that the Defendant Sodexo, Inc. (“Sodexo”)
terminated her employment on the basis of her race, gender, age, national origin,
and/or religion. The Defendant provides on-site food services supervisory
support to healthcare providers. Plaintiff is a fifty-four year old demonstratively
religious Ghanaian female of African descent who was employed by the
Defendant as a food services director for ECHN, one of Sodexo’s customers, at
several of ECHN’s healthcare facilities, first at Manchester Hospital in
Manchester, Connecticut and at Rockville General Hospital, and later at Woodlake
Nursing and Rehabilitation Center located in Tolland, Connecticut. On March 2,
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2010, Ms. Asante transferred from a Sodexo facility in Iowa to Manchester
Memorial and Rockville General Hospitals. Plaintiff's supervisor was Tom Farrell
(“Farrell”). Plaintiff alleges that her diverse background and religiosity became
the subject of ethnically offensive remarks, racial epithets, inappropriate
gestures, sounds, and racial undertones. Specifically, she alleges that she was
told that other employees would have to be trained to deal with her culture, coworkers mocked her thick accent by mimicking the sounds of jungle animals and
acting out a commercial involving a man with a thick accent in her presence, and
co-workers joked that another co-worker would be assigned her title while she
continued to perform the work associated with the title. She also alleges that, as
part of the discriminatory conduct, Farrell told her that a Jamaican woman
complained of having been the victim of racial discrimination. She alleges that
after complaining about her treatment, Sodexo contrived to terminate her by
transferring her to ECHN’s Woodlake facility in December, 2010. She theorizes
that Farrell expected her job at Woodlake to be eliminated upon the termination of
the contract between Sodexo and this ECHN facility because he had reported to
his superiors a perceived ethics violation in 2008 and had followed up by filing a
written ethics report in January 2010, several months before Ms. Asante was
transferred from Iowa to Connecticut, suggesting that Sodexo had misapplied
vending machine revenue and that his report led to Sodexo's disgorgement of
vending machine revenue to ECHN. Ms. Asante’s employment was terminated on
November 10, 2011.
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Plaintiff's Requests for Production Nos. 13, 15, 16, seek disclosure of
material about which Farrell testified at his September 17, 2013 deposition,
conducted six months before the discovery deadline. Plaintiff seeks disclosure
of the ethics report Farrell authored regarding the vending machine issue, and
reports and information connected to Farrell's termination.
Plaintiff also theorizes that Sodexo habitually retaliated against its
employees on the basis of two statements. First, Farrell testified that he was
terminated around January 2013 after having reported to his supervisors and
having filed an ethics report regarding the vending machine revenue and, second,
he testified that another employee – a chief clinical dietician employed at Milford
Hospital – filed an ADA complaint in 2012, after Ms. Asante’s termination. Farrell
testified that he was the dietician’s district manager.
In order to identify information which may lead to the discovery of
admissible evidence in this disparate treatment case, Plaintiff seeks evidence of a
general pattern of discrimination and retaliatory practices by Sodexo. Her
Request for Production No. 19 seeks “documents evidencing or in any way
pertaining to the filing of any discriminatory charge by any past or present
Sodexo managers or employees within the past five (5) years counting from the
time Plaintiff was terminated in November 2011,” making the effective time period
November 2006 to November 2011, regardless of where and under whose
supervision the complainant worked and the basis of the alleged discrimination.
In particular, she seeks information pertaining to an ADA claim lodged in 2012 by
the clinical dietician employed at Milford Hospital, after the timeframes specified
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in her request for production. The Defendant counters that the motion to compel
was untimely filed first because it was filed after the discovery deadline and
second because it was not filed for months after the Defendant objected to the
Plaintiff's requests for production. The third basis for the Defendant's objection
is that Plaintiff failed to comply with the federal and local rules of procedure.
Defendant's fourth and final basis for objecting is that the Plaintiff has requested
information pertaining to the ADA claim which is beyond the five year scope of
the Plaintiff's discovery request.
II. Legal Standard
“On notice to other parties and all affected persons, a party may move
for an order compelling disclosure or discovery. The motion must include a
certification that the movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or discovery in an effort to
obtain it without court action. . . If a party fails to make a disclosure required by
Rule 26(a), any other party may move to compel disclosure and for appropriate
sanctions.” Fed. R. Civ. P. 37(a)(1), (a)(3)(A). The Local Rules of this District
provide that
[m]emoranda by both sides shall be filed with the Clerk in
accordance with Rule 7(a)1 of these Local Rules before any
discovery motion is heard by the Court. Each memorandum shall
contain a concise statement of the nature of the case and a
specific verbatim listing of each of the items of discovery sought
or opposed, and immediately following each specification shall
set forth the reason why the item should be allowed or
disallowed. Where several different items of discovery are in
dispute, counsel shall, to the extent possible, group the items into
categories in lieu of an individual listing of each item. Every
memorandum shall include, as exhibits, copies of the discovery
requests in dispute.
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D. Conn. L. R. 37(b)1. Further, Rule 26 of the Federal Rules of Civil Procedure
specify the scope of discovery. Subsection (b)(1) of Rule 26 provides that
[u]nless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense—including the existence, description,
nature, custody, condition, and location of any documents or
other tangible things and the identity and location of persons
who know of any discoverable matter. For good cause, the
court may order discovery of any matter relevant to the
subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence. All discovery is subject to the limitations imposed
by Rule 26(b)(2)(C) [which limits the frequency and extent of
discovery].
Fed. R. Civ. P. 26(b)(1). That limiting section provides that
the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it
determines that: (i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or (iii) the burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs
of the case, the amount in controversy, the parties’ resources,
the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C). The purpose of discovery is to allow a broad search
for facts, the names of witnesses, or any other matters, which may aid a party in
the preparation or presentation of his case. U.S. v. Int'l Bus. Machines Corp., 68
F.R.D. 315, 316 (S.D.N.Y. 1975) (citation omitted). See also Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340, 351 (1978) (relevance “has been construed broadly
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to encompass any matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the case.”); Raza v. City
of New York, 13-CV-3448 PKC JMA, 2013 WL 6177392, at *9 (E.D.N.Y. Nov. 22,
2013) (“the purpose of discovery is to enable a party to obtain potentially relevant
information.”); Engl v. Aetna Life Ins. Co., 139 F.2d 469, 472 (2d Cir. 1943)
(purpose of discovery includes ascertaining “leads as to where evidence may be
located”).
A “[s]cheduling [o]rder is not a frivolous piece of paper, idly entered, which
can be cavalierly disregarded ... without peril.” Eng-Hatcher v. Sprint Nextel
Corp., 07 CIV. 7350 BSJ KNF, 2008 WL 4104015, at *1 (S.D.N.Y. Aug. 28, 2008).
Notwithstanding, the Court has discretion to amend a scheduling order in
furtherance of the purpose of the Federal Rules of Civil Procedure and in the
interest of justice. The rules “govern the procedure in all civil actions and
proceedings in the United States . . . [and] should be construed and administered
to secure the just, speedy, and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1. In furtherance of the just administration of judicial
proceedings, Federal Rule 16 provides that “[a] schedule may be modified only
for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). A finding
of “good cause” depends on the diligence of the moving party to comply with the
scheduling order. Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.
2000); Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 243 (2d Cir. 2007).
Diligence is the primary determinant of whether to extend a deadline, but not the
only consideration. Kassner, 496 F.3d at 244. “The district court, in the exercise
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of its discretion under Rule 16(b), also may consider other relevant factors
including, in particular, whether allowing [amendment of the pleadings] at this
stage of the litigation will prejudice [the other party].” Id.; see also Cole v.
Fischer, 08CV512, 2010 WL 681064, at *3 (W.D.N.Y. Feb. 19, 2010) (granting
defendants’ motion to extend the deadline to file dispositive motions after the
deadline in the scheduling order had passed). “The management of discovery
lies within the sound discretion of the district court, and the court's rulings on
discovery will not be overturned on appeal absent an abuse of discretion.” Grady
v. Affiliated Cent., Inc., 130 F.3d 553, 561 (2d Cir. 1997). For good cause the Court
may consider nunc pro tunc motions to extend deadlines. The critical question
for this Court is whether the information sought by the Plaintiff appears
reasonably calculated to lead to the discovery of admissible evidence.
III. Analysis
a. Plaintiff's Motion to Compel Information Pertaining to the ADA Claim
is Improper
Defendant is correct with respect to the ADA claim made by a different
Sodexo employee. That claim was made in 2012 and the request for production
specified a five year period commencing in November 2006, which period ended
in November 2011. Thus the ADA claim is beyond the temporal scope of the
Plaintiff's request for production. As the Defendant could not have failed to
produce that which was not sought the motion to compel information pertaining
to this ADA claim is denied. Even if this claim were within the temporal scope of
the request to produce, the motion, to the extent it seeks to compel the
disclosure of information pertaining to the ADA claim, is denied as Plaintiff has
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not shown that discovery as to this claim could reasonably lead to the discovery
of relevant information. Despite the fact that Plaintiff deposed Mr. Farrell, Plaintiff
provides no further information about the claim which would suggest its probity.
The Plaintiff does not state and in fact admits that she does not know the identity
of the claimant, other than that she was employed as a chief clinical dietician, or
any of the particulars of the employee’s claim of disability discrimination. As
Plaintiff has failed to sustain her burden of showing that this request falls within
the scope of permissible discovery the motion is denied as to the ADA claim.
b. Plaintiff's Motion to Compel Information Concerning Plaintiff's
Supervisor's Termination is Discoverable
Plaintiff's motion to compel disclosure of the reasons for Farrell's
termination is likely to lead to the discovery of relevant information as he was
Asante’s supervisor and his termination may have been related to his supervision
of Plaintiff or of other employees under circumstances which could be supportive
of Plaintiff's claims.
c. Plaintiff’s Motion to Compel is not Impermissibly Untimely or
Procedurally Defective
Plaintiff failed to file an affidavit in support of her motion to compel;
however, her memorandum in support of the motion to compel quoted the
requests for production responses which she seeks and attorneys must have a
good faith belief in the statements made to the court in their pleadings. Thus,
Plaintiff's memorandum in support of her motion to compel satisfies the objective
of the Rules as it clearly states the disputed issues. The Rules should be
construed to secure the efficient and cost effective resolution of disputes. Fed.
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R. Civ. P. 1. Accordingly, the procedural defectiveness of the motion is
immaterial.
Turning to the challenge of untimeliness, the operative scheduling order
was entered on May 6, 2013. [Dkt. No. 22]. The scheduling order set a discovery
deadline of March 3, 2014. Id. The deadline was for the completion of discovery,
not the service of discovery. Id. The Court set a dispositive motion deadline of
May 1, 2014, approximately two months after the close of discovery. Id.
Defendant cites Lillbask ex rel. Mauclaire v. Sergi, 193 F. Supp. 2d 503, 516 (D.
Conn. 2002) in support of its assertion that the motion to compel is untimely.
This case is inapposite as the plaintiff in that case had received multiple
continuances of the discovery deadline and the court had previously intervened
to specify the permissible scope of discovery. Here the parties both sought
continuances which the Court granted and the Plaintiff was not shown to have
been dilatory. Nor has the Court been asked to intervene previously. Similarly,
Defendant cites Capozzi v. Gale Grp., Inc., CIV.NO. 300CV2129WWE, 2002 WL
1627626, at *2 (D. Conn. June 4, 2002) in which the court denied plaintiff’s motion
to compel because it was not filed until three days after the discovery deadline,
stating “plaintiff could easily have filed the motion prior to the discovery cutoff
date . . . Therefore, in light of plaintiff’s lack of diligence . . . the court denies
plaintiff’s motion to compel.” The facts of this case are distinguishable. Here, a
few months elapsed between the date the requests were propounded and the
date on which the motion was filed. While it would appear that discovery could
and ideally should have been propounded earlier and that the Plaintiff could have
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brought the dispute to fruition sooner, the Court cannot conclude that Plaintiff's
counsel was not diligent after discovery was propounded. There is no evidence
that the Plaintiff could have anticipated the need to seek additional information
after Farrell’s deposition or that she did not conduct the deposition in a timely
manner. In the absence of a lack of diligence, it would elevate form over
substance to deny the Plaintiff information which could lead to the discovery of
admissible information. Finally, a short delay occasioned by granting the
Plaintiff's motion to compel disclosure of a discrete amount of information readily
available to the Defendant would neither overburden or prejudice the Defendant
nor unduly delay the resolution of the case. Accordingly, the Defendant is
ordered to provide to the Plaintiff information sought pertaining to the vending
machine revenue issue.
IV.
Conclusion
Plaintiff's motion to compel disclosure of information concerning the
vending machine revenue issue and Ferrell's termination is GRANTED. The
motion to compel information concerning the ADA claim is DENIED. Defendant’s
Motion for Protective Order is DENIED.
IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: May 16, 2014
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