Reed v. Forney Industries, Inc.
Filing
43
ORDER granting in part and denying in part 38 Plaintiff's Motion to Compel; denying 42 Plaintiff's Unopposed Motion for Leave to File Reply. See Order for detail. Signed by Magistrate Judge Carol Mirando on 3/26/2018. (HJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RICHARD C. REED, JR.,
Plaintiff,
v.
Case No: 2:17-cv-288-FtM-38CM
FORNEY INDUSTRIES, INC.,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion to Compel
(Doc. 38) filed on March 1, 2018.
Plaintiff seeks to compel Defendant Forney
Industries, Inc. (“Forney”) to produce certain documents in response to his discovery
requests. Doc. 38.
He also seeks to depose certain witnesses.
filed a response in opposition to the motion to compel.
Doc. 41.
Id. at 2. Forney
Plaintiff further
seeks to file a reply brief to Forney’s response, which Forney does not oppose.
42.
Doc.
Plaintiff’s motion for a reply brief is denied because the Court finds a reply brief
will not aid the Court’s ruling on the motion to compel.
On May 25, 2017, this case was removed from the Circuit Court for the
Twentieth Judicial Circuit in and for Collier County, Florida.
Doc. 1.
Forney is a
family-owned corporation selling tool, equipment and accessory products. Doc. 25 ¶
9.
Plaintiff is a sixty (60) year old male, who was Forney’s employee and generated
and oversaw sales of Forney’s products from September 2003 to December 2015.
¶¶ 8, 10-11, 17.
Id.
Plaintiff alleges he could not work from July 2015 to August 2015
because he suffered a knee injury and had knee surgery in July 2015.
Id. ¶¶ 13-15.
Plaintiff claims that after he returned to work in August 2015, Forney attempted to
find fault with his work performance in efforts to terminate him.
Id. ¶ 17.
In
December 2015, Forney terminated Plaintiff’s employment, although he allegedly
performed well at work.
Id. ¶¶ 19-22.
Plaintiff filed a Complaint on May 25, 2017 and subsequently amended his
Complaint twice.
Docs. 2, 20, 25.
Plaintiff’s Second Amended Complaint alleges
six counts: disability discrimination and retaliation under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12111 et seq., as amended; age discrimination
under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq.;
and disability discrimination, retaliation and age discrimination under the Florida
Civil Rights Act, Fla. Stat. §§ 760.01 et seq.
Doc. 25.
On February 16, 2018, the
Court entered an Amended Case Management and Scheduling Order, setting the
discovery deadline to April 2, 2018, the mediation deadline to April 16, 2018, the
deadline for dispositive motions to April 30, 2018 and a trial term to commence on
October 1, 2018.
Doc. 36.
Plaintiff served his First Request for Production on June 26, 2017.
Doc. 38-1.
Forney responded to the request on January 12, 2018 by producing certain documents
and raising various objections.
Doc. 38-2. The parties continued their efforts to
amicably resolve their discovery disputes into February 2018, but were unable to
reach an agreement.
Doc. 38 at 2.
At issue here are Plaintiff’s Request for
Production Nos. 6, 14, 15 and 16 and Forney’s objections to these requests.
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Docs. 38,
41.
Plaintiff seeks to compel Forney’s production of documents in response to these
discovery requests.
Doc. 38.
Rule 34 of the Federal Rules of Civil Procedure sets forth the procedures for
obtaining access to documents and things within the control of the opposing party.
Fed. R. Civ. P. 34.
Rule 34(a) allows a party to serve on any other party a request
within the scope of Rule 26(b). Fed. R. Civ. P. 34(a).
Rule 26(b) permits discovery
regarding any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery, in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
A request for production must state “with reasonable
particularity each item or category of items to be inspected.”
34(b)(1)(A).
Fed. R. Civ. P.
The party to whom the request is directed must respond within thirty
days after being served, and “for each item or category . . . must state with specificity
the grounds for objecting to the request, including the reasons.”
Fed. R. Civ. P.
34(b)(2).
First, Plaintiff seeks to compel Forney’s response to his Request No. 6:
6. The complete personnel files of all individuals identified in response
to Interrogatory No. 11, 1 including but not limited to, any
1
Plaintiff’s Interrogatory No. 11 and Forney’s response state:
11. Please identify any and all Retail Account Specialists employed by you who
were disciplined and/or terminated from 2013 through the present,
including the person(s)’ name, age, address, telephone number, the person’s
title/position, whether the person(s) is a current or former employee of
Defendant and the specific reason(s) for the discipline and/or termination.
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documents, records, memoranda, notes, or computer printouts which
were part of the personnel files at any time.
Response: As to item 6, the Defendant objects on the basis of relevancy
and materiality to providing Mr. Wodzenski’s entire personnel file.
Attached hereto is Mr. Wodzenski’s resignation letter dated 6/13/16.
Docs. 38-1 at 5, 38-2 at 1.
Plaintiff argues he needs the requested documents in order to establish his
discrimination claims.
Doc. 38 at 8-9.
Plaintiff appears to allege Wodzenski may
have been involved in or accused of the same or similar misconduct as Plaintiff’s but
was disciplined differently.
Id. at 8-9.
Forney responds Wodzenski is not a
similarly situated individual because Forney demoted Wodzenski due to his work
performance issues whereas Forney terminated Plaintiff primarily because of his
insubordination.
Doc. 41 at 2.
Alternatively, Forney requests to produce the
requested documents under a confidentiality agreement.
Id. at 3.
Plaintiff is correct that in ADEA cases, courts employ the framework from
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Washington v. United
Parcel Serv., Inc., 567 F. App’x 749, 751-52 (11th Cir. 2014). Under the McDonnell
Douglas framework, a plaintiff may establish a prima facie case by showing four
factors: he (1) was a member of the protected age group, (2) was subject to adverse
employment action, (3) was qualified to do the job, and (4) was replaced by a younger
Response: Paul Wodzenski was employed by Forney as a Retail Account
Specialist (RAS) starting February 18, 2013. Mr. Wodzenski was demoted to
Retail Account Representative (RAR) effective January 1, 2016, due to work
performance issues. Mr. Wodzenski resigned for personal reasons on June 13,
2016. Mr. Wodzenski’s date of birth is July 30, 1965.
Doc. 38-8 at 5.
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individual, or that his employer treated employees who were not members of his
protected class more favorably under similar circumstances.
Id. at 751.
To show a valid comparison, the plaintiff must show he and “the comparators
are similarly situated in all relevant aspects.”
Id. at 751. The burden of finding a
proper comparator is relatively high because “the quantity and quality of a
comparator’s misconduct must be nearly identical to the plaintiff’s misconduct.”
at 751-52.
Id.
Once the plaintiff establishes a prima facie case, the burden of proof
shifts to the defendant to proffer a “legitimate, nondiscriminatory reason for taking
the challenged employment action.”
Id. at 752.
The plaintiff then must
“demonstrate that the proffered reason was a pretext for discrimination.”
Id.
Relevant to showing a pretext would be evidence that other employees who engaged
in acts against the defendant of comparable seriousness were nevertheless retained
or rehired, or statistics as to the defendant’s employment policy and practice.
McDonnell Douglas, 411 U.S. at 805.
Here, the Court finds the personnel file of Wodzenski is relevant because
Forney
admits
it
terminated
quality/performance issues.
Plaintiff
Doc. 41 at 1.
on
two
bases
including
work
Thus, Forney’s demotion of Wodzenski
and termination of Plaintiff involve work quality/performance issues.
Id. at 1-2.
Although Forney asserts its primary reason for terminating Plaintiff is
insubordination, which differentiates his termination from Wodzenski’s demotion,
the Court need not decide the merits of the parties’ disputes at this stage and only is
examining the relevance of the requested documents to Plaintiff’s claim.
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See Fed.
R. Civ. P. 26(b)(1).
Aside from arguing the reasons for Plaintiff’s termination and
Wodzenski’s demotion are different, Forney does not seek to limit the scope of
Plaintiff’s discovery request.
Doc. 41 at 2.
Accordingly, the Court finds
Wodzenski’s complete personnel file is relevant and material to this case.
Nevin v.
CSX Transp., No. 3:01CV1361J25TEM, 2003 WL 22005030, *2 (M.D. Fla. Feb. 13,
2003) (allowing discovery of other employees’ personnel files because the court found
the files were necessary to establish the plaintiff’s claims of age and disability
discrimination under the ADEA).
Nonetheless, the Court will direct Forney to produce the requested documents
under a confidentiality agreement.
“Personnel files are inherently confidential in
nature and generally should be protected from dissemination.” Escarra v. Regions
Bank, No. 2:07-cv-408-FtM-29DNF, 2008 WL 11334953, at *2 (M.D. Fla. Apr. 3,
2006).
Here, to address the confidentiality concern, Forney proposed a
confidentiality agreement to which Plaintiff does not object.
at 3, 41-3.
Docs. 38 at 10 n.5, 41
Accordingly, the Court will order Forney to produce the requested
documents under the confidentiality agreement proposed by Forney or otherwise
agreed to by the parties.
Next, the parties dispute over Plaintiff’s Request No. 14:
14. All emails between Plaintiff and Todd Reasonover.
Response: As to item 14, the Defendant objects to this item on the basis
that it is overly broad, burdensome and harassing as to time frame and
factual circumstances. Without waiving these objections, see documents
produced in response to items 2 and 3.
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Docs. 38-1 at 6, 38-2 at 2.
Plaintiff’s Request No. 14 seeks all e-mails between him and Todd Reasonover,
Plaintiff’s supervisor at the time of his termination.
Doc. 38 at 12.
Forney
responds it produced all of the requested e-mails concerning the relevant subjects.
Doc. 41 at 2-3.
Accordingly, the Court will deny as moot Plaintiff’s request to compel
Forney’s production in response to Request No. 14.
Plaintiff also seeks to compel Forney’s production of documents in response to
his Request Nos. 15 and 16:
15. All documents reflecting employee sales contest results from 2013
through 2015.
Response: As to item 15, the Defendant objects to this item on the basis
of relevancy and materiality. In addition, the information requested is
not reasonably calculated to lead to the discovery of admissible
evidence.2 In addition, the information requested is overly broad and
burdensome. Finally, privacy interests also dictate that sales documents
pertaining to other Forney employees should not be produced. Without
waiving these objections, see documents produced in response to item 3.
This production and any additional production should be subject to a
Confidentiality Stipulation.
16. All documents reflecting monthly sales results for the East Region
for 2013 through 2015.
Response: As to item 16, the Defendant objects to this item on the basis
of relevancy and materiality. In addition, the information requested is
not reasonably calculated to lead to the discovery of admissible evidence.
In addition, the information requested is overly broad and burdensome.
Finally, privacy interests also dictate that sales documents pertaining
Forney objected based on the outdated language of Rule 26(b)(1), which allowed
discovery of what is “reasonably calculated to lead to the discovery of admissible evidence.”
Doc. 38-2 at 2. Effective December 1, 2015, the phrase “reasonably calculated to lead to the
discovery of admissible evidence” is no longer part of Rule 26(b)(1). Fed. R. Civ. P. 26(b)(1).
“The former provision of [Rule 26(b)(1)] for discovery of relevant but inadmissible information
that appears ‘reasonably calculated to lead to the discovery of admissible evidence’ is []
deleted.” Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment.
2
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to other Forney employees should not be produced. Without waiving
these objections, see documents produced in response to item 3. This
production and any additional production should be subject to a
Confidentiality Stipulation.
Docs. 38-1 at 6, 38-2 at 2-3.
Plaintiff argues these documents are necessary because Forney’s termination
of his employment was based on his work quality/performance issues, and Forney
evaluated his performance in comparison to that of other employees from different
branches.
Doc. 38 at 10-12. Forney again disputes that its sales data are relevant
because it terminated Plaintiff primarily for his insubordination, not for his work
quality/performance issues.
Doc. 41 at 2.
The Court overruled this particular
objection in addressing Plaintiff’s Request No. 6.
The Court further notes in
employment discrimination cases, more liberal discovery rules apply.
Wells v.
Xpedx, No. 8:05-cv-2193-T-EAJ, 2007 WL 1200955, *6 (M.D. Fla. Apr. 23, 2007)
(citing Sweat v. Miller Brewing Co., 708 F.2d 655, 658 (11th Cir. 1983)).
Forney also asks to limit the scope of Request No. 15 to the East Region, the
region to which Plaintiff was assigned.
Doc. 41 at 2.
Plaintiff opposes limiting the
scope because the sales contests occurred across different regions, and the company’s
overall sales volume was in decline.
Doc. 38 at 11-12.
In a case of an individual
complaint, “the most natural focus is upon the source of the complained of
discrimination – the employing unit or work unit.”
907 F.2d 1077, 1084 (11th Cir. 1990).
Earley v. Champion Int’l. Corp.,
To expand discovery beyond the local
employing unit, a plaintiff must demonstrate “particularized need and likely
relevancy.”
Wells, 2007 WL 1200955, at *6.
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Factors relevant to the decision
allowing broader discovery include “the number and geographic dispersion of the
employer’s facilities, similarities or differences in the work performed at different
facilities, and whether or not a common decision maker is involved in employment
decisions.”
Id.
Here, during the term of Plaintiff’s employment, Forney’s Vice President of
Regional Sales sent an e-mail to Plaintiff comparing his sales performance with the
performance of other employees from different branches.
Doc. 38 at 11.
Furthermore, Reasonover stated Plaintiff’s performance was below that of other
employees across the company, which might have influenced Forney’s termination of
Plaintiff’s employment.
Id. at 11-12.
Accordingly, the Court finds Plaintiff has
demonstrated particularized need and relevancy of Forney’s company-wide sales data
by showing that Forney evaluated his performance on a company-wide basis.
See
Wells, 2007 WL 1200955, at *6. The Court will not limit the scope of Request Nos.
15 and 16, and orders Forney to produce the requested documents.
Lastly, Plaintiff seeks to coordinate dates with Forney to depose certain outof-state witnesses located in Colorado, California and Ohio.
Doc. 38 at 2-3.
Forney
responds Plaintiff did not properly serve his notice of depositions, and the parties do
not have sufficient time for additional depositions before the discovery deadline of
April 2, 2018.
Docs. 41 at 4-5, 41-4.
The Court agrees Plaintiff did not give
reasonable written notice of depositions in violation of Rule 30(b) of the Federal Rules
of Civil Procedure.
Doc. 41-4; Fed. R. Civ. P. 30(b).
Nonetheless, because the Court
orders Forney to produce additional documents, and the parties’ deadline to file
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dispositive motions is April 30, 2018, the Court will allow Plaintiff to proceed with
depositions and direct the parties to coordinate dates.
Docs. 36 at 1, 38 at 2-3.
ACCORDINGLY, it is hereby
ORDERED:
1.
Plaintiff’s Motion to Compel (Doc. 38) is GRANTED in part and DENIED
in part.
2.
The parties immediately shall enter into the confidentiality agreement
proposed by Forney (Doc. 41-3) or otherwise agreed to by them.
3.
Plaintiff’s Motion to Compel Request No. 6 is GRANTED in part and
DENIED in part.
Forney shall produce the requested documents under the
confidentiality agreement the parties enter into.
4.
Plaintiff’s Motion to Compel Request No. 14 is DENIED as moot.
5.
Plaintiff’s Motion to Compel Request Nos. 15 and 16 is GRANTED.
6.
Forney shall have up to and including April 2, 2018 to produce the
documents responsive to Plaintiff’s Request Nos. 6, 15 and 16 in accordance with this
Order.
7.
Plaintiff’s request to conduct depositions is GRANTED.
The parties
shall have up to and including April 15, 2018 to complete depositions of out-of-state
witnesses.
8.
Plaintiff’s Unopposed Motion for Leave to File Reply (Doc. 42) is DENIED.
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DONE and ORDERED in Fort Myers, Florida on this 26th day of March, 2018.
Copies:
Counsel of record
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