Equal Employment Opportunity Commission et al
Filing
119
MEMORANDUM Opinion and Order Signed by the Honorable Arlander Keys on 10/31/2012:(ac, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
and
REGINALD BAILEY, et al.
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Intervening-Plaintiffs, )
V.
DHL EXPRESS (USA), INC.,
Defendant.
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No. 10 C 6139
Judge John Z. Lee
Magistrate Judge
Arlander Keys
MEMORANDUM OPINION AND ORDER
Currently before the Court is DHL Express’ (USA), Inc.
(“DHL” or “Defendant”) Motion to Compel depositions.
DHL argues
that Plaintiff, EEOC and Plaintiff-Intervenors (“EEOC” or
Plaintiff), refuse to make claimants available for deposition.
For the reasons set forth below, DHL’s Motion is granted.
Background Facts
DHL is an international shipping company.
During the time
period at issue, 2005 to the present, all of DHL’s Chicago area
driver/dockworkers, including all 94 of the claimants1, have been
represented by Teamsters Local Union No. 705.
On September 24,
2010, the EEOC filed the case at bar on behalf of 94 claimants,
alleging that DHL discriminated against its African-American
1
The Parties represented by the EEOC and Plaintiff-Intervenors
include 13 Plaintiff-Intervenors, 10 non-intervenor Charging Parties
and 71 additional claimants. The Court refers to all of these parties
collectively as “claimants.”
driver/dockworkers based on their race by giving them less
desirable, more difficult, and more dangerous route and dock
assignments than their Caucasian counterparts and by assigning
African-American drivers to routes in predominately AfricanAmerican areas.
However, the EEOC has not alleged nor identified
what it is that constitutes a “less desirable,” “more difficult,”
or a “more dangerous assignment.”
Instead, the EEOC provided
interrogatory responses, including a vignette for each claimant
(who is not a Plaintiff-Intervenor or Charging Party), with the
claimants’ general allegations of discrimination.
These
vignettes are not sworn, verified, nor made under oath.
DHL requests that the Court order the EEOC to produce all of
the claimants to be deposed, arguing that the vignettes provided
by Plaintiff are vague, filled with generalities, and in several
instances inaccurate.
Moreover, DHL argues that, because there
is no standard as to what a “more dangerous assignment” is, what
defines a “Black area,” and no objective criteria for what
constitutes “less desirable,” each claimant’s individual
testimony is pivotal to establishing the facts necessary for DHL
to defend itself against the allegations EEOC has put forward.
Alternatively, the EEOC characterizes the instant case as one
involving only the distribution of work assignments, downplaying
the personal opinions of the claimants’ assignments along with
the need for any further depositions, and opining that the route
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assignment claims can be proven through its expert’s analysis.
To date, DHL has deposed 34 of the 94 claimants, including
11 of the 13 Plaintiff-Intervenors.
Thus far, the testimony has
varied widely amongst each claimant regarding different
subjective standards for what constitutes a predominantly
African-American area, inconsistent definitions of what makes an
area or route unsafe, and different standards as to what makes a
route or dock assignment desirable.
DISCUSSION
The EEOC’s complaint alleges both discrimination and
segregation in route and dock assignments.
Under either theory,
the EEOC must prove not only the allegation, but also the result
and effect of the alleged segregation and discrimination on each
claimant.
Moreover, because this is not a Rule 23 class action,
each claimant must prove liability and damages, the parties
cannot rely on testimony or the experience of someone else.
Conversely, DHL must be able to assess claimants’ allegations in
order to defend against them.
The Court finds the sworn
depositions of the individual claimants necessary, as the EEOC’s
claims are based on allegedly adverse actions that are subjective
in nature and an analysis of each individual claimant’s testimony
is of necessity.
Thus, for the reasons explained further below,
the Court grants Defendant’s Motion to Compel.
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I. Necessity for Each Claimants’ Individual Experience
The EEOC has brought this lawsuit under §706(f)(1) and
§706(f)(3) of title VII, as amended, 42 U.S.C. §2000e-5(f)(1) and
§20000e-5(f)(3), and §102 of the Civil Rights Act of 1991, 42
U.S.C. §1981a. (Dkt. #26 at par.2.)
The claimants are not non-
party witnesses, they are persons on whose behalf the EEOC is
seeking relief for compensatory and punitive damages in their
individual capacity.
A. Not Unduly Expensive
The EEOC first asserts that, in most cases, there are more
people with knowledge regarding the claims at issue than are
necessarily deposed (Pl.’s Resp. p.3.), and that deposing each
claimant is unduly expensive.
Plaintiff relies on EEOC v. YRC,
Inc., Case No. 09 cv 7693 (N.D. Ill.), suggesting that the facts
of that case are similar to those herein, and that there the
parties agreed to a lower percentage of claimant depositions
compared to the actual size of the case.
Plaintiff’s reliance upon YRC is as unavailing as is its
argument of expense.
The EEOC’s assertion that an agreement in
YRC between the parties to limit the number of depositions per
side somehow dictates that DHL is not entitled to take all of the
claimant depositions is misplaced.
The agreement in YRC only
demonstrates what the parties there were able to agree to, not
what the Court decided as it relates to the allowed number of
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depositions.
Here, the EEOC acknowledges that DHL has also made
some cooperative agreements, including splitting the cost of a
joint database of staffing information, as well as limiting the
time of the fact depositions.
DHL is not seeking to depose
everyone with knowledge in this case, but only the individual
claimants on whose behalf the EEOC is seeking individual damages.
The EEOC claims that deposing each claimant is unduly
expensive, nonetheless. While the Court appreciates the expense
that a case of this sort can generate, this situation is not
unique.
In another EEOC action under Section 706, the federal
district Court ordered the EEOC to make over twice as many
claimants available for deposition.
EEOC v. CRST Van. Expedited,
Inc., 679 F.3d 657, 670 (8th Cir. May 8, 2012)(EEOC ordered to
make all 270 of its identified claimants available for
deposition.)
Moreover, expenses are being incurred based on how
the EEOC has decided to prosecute this case overall, including
hiring an expert to analyze route assignments.
The Court will
not jeopardize DHL’s opportunity to defend itself in order to
accommodate the expense of Plaintiff’s litigation strategy.
B. Proof of Adverse Employment Action
Under either a discrimination or segregation theory, the
EEOC must prove that each claimant was subjected to an adverse
employment action, which had an effect on the claimant.
See
Nichols v. Southern Illinois University-Edwardsville, 510 F.3d
5
772, 779 (7th Cir. 2007.)
The EEOC attempts to distinguish EEOC
v. CRST Van. Expedited, Inc., by asserting that there the EEOC
alleged sexual harassment, and that in order to prove sexual
harassment under Title VII, the plaintiff had to establish that
the victims were subjectively offended by the conduct.
Here, the
EEOC argues that there is no such requirement in a segregation
case, therefore, depositions are unnecessary.
While the Court
agrees that the instant case does not specifically require a
showing that the victim was subjectively offended to prove
liability, the instant case does however require more than simply
showing that the segregation occurred- there has to be an effect
on the claimant.
Regardless of the possibility that the EEOC’s
anticipated expert analysis can address this issue or not, the
testimony about the individual claimants’ experiences and their
choices are relevant to the adverse action analysis necessary for
DHL to defend against the claims.
Moreover, DHL should be able
to probe and cross-examine the claimants on their claims, which a
deposition affords them the leeway to do.
C. Proof of Liability and Damages
In order to seek damages for the individual claimants, the
EEOC must prove that each individual claimant was subject to the
discriminatory policy.
EEOC v. RJB Properties, Inc., 857
F.Supp.2d 727, 741 at n.4 (N.D. Ill. April 23, 2012); E.E.O.C. v.
International Profit Associates, Inc., No. 01 C 4427, 2007 WL
6
3120069, at *2 (N.D.Ill. Oct. 23, 2007.)
In the instant case,
that means proving each claimant suffered a materially adverse
employment action and their “garden variety” emotional distress
damages.
Furthermore, the materially adverse action analysis
must include whether the claimant felt the particular route
assignment was discriminatory.
However, some of the claimants
have testified that they were happy with a route in an area they
characterized as predominantly African-American,
unsafe or more difficult. (Ex. 4, Jordan Dep. 77:11-83:23
(testifying that he liked driving a route in an area he
characterized as predominantly African-American and unsafe); Ex.
26, Hopkins Dep. 51:13-52:7, 95:13-23 (testifying that he liked a
route he characterized as “one of the heaviest routes”).)
Another testified that the route he would have preferred was also
in a predominantly African-American and unsafe area (Ex. 5,
Bailey Dep. 52:14-53:16.)
The EEOC’s vignettes do not consistently include any
analysis of the claimants’ preferred routes and whether they
could be considered “less desirable” “more difficult” or “more
dangerous”.
The Collective Bargaining Agreement determined all
of the drivers’ salary and benefits, as well as their position in
bidding for stations and time slots.
Thus, each claimant had a
role in choosing the assignment he or she received, including
what station and time slot he or she bid into, whether he or she
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asked for a specific route or asked to be taken off of a specific
route, and whether the claimant had knowledge of the area covered
by particular routes.
The EEOC’s vignettes do not make clear the
information necessary to understand each claimant’s preferences
and the role those preferences played in the assignments he or
she was given.
The Court finds the individual claimant testimony also
necessary to address damages.
The EEOC is seeking individual
monetary damages for each claimant.
In order to adequately
address those damages, DHL must be allowed to probe the
individual’s claim.
In most of the EEOC’s vignettes, damages are
addressed in a vague sentence, stating that the claimant was
angered or upset or frustrated by the alleged discrimination.
(See, e.g., Ex. 6 at 12, Buffkin Interrogatory Response (“He felt
very angry by the perceived discriminatory treatment of
African American employees.”) The EEOC claims that damages
testimony is unnecessary because it is only pursuing garden
variety damages for each claimant.
The Court, however, finds
that those are still individual damages claims that the EEOC must
prove, and DHL is entitled to probe for a more specific
understanding.
Such vague representations do not allow DHL to
adequately assess each claimants’ damages.
D. Individual Depositions Necessary to Establish Work Assignments
The EEOC opines that additional depositions are duplicative
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as DHL has, or should have, employment records detailing where
and when all the claimants worked at DHL.
Plaintiff suggests
that “DHL has spent and [sic] inordinate amount of time asking
the drivers what routes they drove and if those routes are in
dangerous or predominately African American Neighborhoods. Such
information is maintained by DHL, and that documentation is far
more reliable then [sic] a driver’s distant memory of each route
that she/he completed since 2005.”
(Pl.’s Resp. p.5.)
However,
Defendant asserts that, prior to 2009, DHL did not regularly
record what dock assignments employees did each day.
Reply p.8.)
(Def.’s
Plaintiff contests that fact by explaining that,
because testimony has been consistent that African-American
employees were assigned the more dangerous routes and the heavier
task of sorting boxes, while the white employees sorted letters
in more desirable areas, further depositions are still redundant.
The Court finds the testimony inconsistent, as while some aligns
with Plaintiff’s assertion, other testimony does not.
Several claimants provided testimony that they did not
believe the dock assignments they received at some stations were
discriminatory. (Ex. 2, Singleton Dep. 80:10-21; Ex. 8, Gilbert
Dep. 47:2-6.)
Contrary to the EEOC’s assertion that the claimant
testimony regarding letter and freight sorting has been
consistent, some claimants testified that they sorted letters
often, or were assigned to other stations.
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(Ex. 9, McNeely Dep.
92:4-9 (testifying that she sorted letters approximately four
times a week, consistently during the relevant time period); Ex.
10, Perry Dep. 108:20-109:16 (testifying that she sorted letters
while working at the Alsip station and that most of the other
employees sorting letters were also African-American); Ex. 11,
Studstill Dep. 147:10-148:9 (testifying that he requested to work
in the “pit” less and subsequently was able to work the
international station).
Claimants have additionally testified
that there were white employees who sorted freight, as well. (Ex.
13, Martin Dep. 90:21-23; Ex. 15, Lyons Dep.99:12-101:4; Ex. 16,
Hayes Dep. 69:1-70:17.)
The Court finds it necessary to determine each claimant’s
dock/route and task assignment via deposition, in an effort to
determine if the employee deemed it a discriminatory position or
not.
E. Distinctions Between Individual Testimony and Vignettes
Finally, although the EEOC acknowledges that its over 120
pages of interrogatory answers “are not perfect”, Plaintiff
maintains that the inaccuracies are minor and further depositions
are still unnecessary -even if for clarification purposes.
Court disagrees.
The
Evidence of several important distinctions and
insufficiencies that affect the relevance and weight of the
claims are apparent when contrasting some of the interrogatory
answer vignettes to the deposition testimony.
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For example, the EEOC claims that Felicia Hill’s deposition
testimony that she was called a “black bitch” by a co-worker,
rather than a supervisor, as alleged in her vignette is “a
minor correction” and that because the EEOC is not alleging a
hostile work environment, it is “a collateral matter.”
To the
contrary, the EEOC is alleging that DHL’s managers intentionally
discriminated against African-American employees.
Whether it was
a manager or a coworker that called Ms. Hill a “black bitch”
makes a difference – it proves that the comment is not direct
evidence of intentional discrimination by her managers.
Additionally, while DHL argues that events prior to 2005 are
irrelevant, the EEOC claims that events described in its
vignettes that took place prior to 2005 are relevant as
background evidence. (Pl.’s Resp. p.12.)
Whether the claims are
irrelevant or only relevant as background evidence, DHL must be
allowed to understand which claims directly relate to the case
and which are merely background.
Because the EEOC vignettes
generally do not make a distinction between claims that occurred
before the relevant time frame or at relevant stations, DHL must
be allowed to depose the claimants in order to properly
understand the scope of their claims.
The EEOC offered to provide verification of its
interrogatory responses in lieu of deposing every
claimant.
(Pl.’s Resp. p.3 n.2.)
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However, a verification from
the EEOC would not require each claimant to attest to his or her
vignette and would not allow DHL to cross examine the claimant on
his or her claims.
Even if the vignettes were completely
accurate, the Court still supports the deposing of the rest of
the claimants, as the Court finds the deposition of each claimant
necessary for a thorough exploration of the allegations at hand.
II. Extension of Fact Discovery
Lastly, Plaintiff opines that DHL delayed in filing the
instant motion and is concerned about its ability to schedule all
of the claimant depositions prior to the current discovery cutoff date of December 1, 2012.
DHL approximates being able to
conduct all of the claimant depositions within a one-month time
frame.
In view of the upcoming holiday season, the Court hereby
extends the fact discovery deadline to February 1, 2013.
CONCLUSION
For the reasons explained above, Defendant’s Motion to
Compel [108] is GRANTED, and the fact discovery cut-off date is
extended to February 1, 2013.
DATED: October 31, 2012
E N T E R E D:
_____________________________
Arlander Keys
United States Magistrate Judge
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