Equal Employment Opportunity Commission v. Amsted Industries Inc et al

Filing 78

MEMORANDUM AND ORDER, The Court OVERRULES the EEOC's objections (Doc. 63 ); AFFIRMS Magistrate Judge Williams' February 26, 2016, order (Doc. 61 ); and ORDERS that the EEOC shall have 21 days from entry of this order to respond to the discovery requests considered in this order. Requests for extensions of time shall be directed to Magistrate Judge Williams. Signed by Judge J. Phil Gilbert on 5/9/2016. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
Case No. 14-cv-1292-JPG-SCW
v.
AMSTED RAIL CO., INC.,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff Equal Employment Opportunity Commission’s
(“EEOC”) objection (Doc. 63) to the February 26, 2016, order of Magistrate Judge Stephen C. Williams
(Doc. 61). Defendant Amsted Rail Co., Inc. (“Amsted”) has responded to the objection (Doc. 64), and
the EEOC has replied to that response (Doc. 72).
I.

Background
The EEOC filed this case against Amsted under the Americans With Disabilities Act (“ADA”),

42 U.S.C. § 12101 et seq. Amsted operates a facility in Granite City, Illinois, where it employs
individuals as “chippers.” A chipper’s duties include using a hammer or grinder to remove metal
protrusions from steel castings. The EEOC alleges that Amsted requires those applying to be chippers
to submit to a medical evaluation, which includes a medical history questionnaire and a nerve
conduction test. In 2011, Montrell Ingram, who had a history of carpal tunnel syndrome, applied to be a
chipper and was offered the position contingent upon his passing the medical evaluation. After
completing the evaluation, Amsted declined to hire Ingram on the grounds that he was not medically
qualified. The EEOC claims in this case that, starting in late 2010, Amsted violated the ADA when it
denied Ingram and a class of 43 other job applicants employment (1) because it regarded them as
disabled based on the results of a nerve conduction test or (2) because they had a record of disability,
carpal tunnel syndrome.

The pending dispute involves the adequacy of the EEOC’s response to certain discovery requests
propounded by Amsted regarding medical records and prior employment of the job applicants the EEOC
is representing in this case (the “claimants”). Magistrate Judge Williams held a hearing on the
discovery dispute on February 25, 2016 (Doc. 60), and issued a written order on February 26, 2016 (Doc.
63). On March 10, 2016, the EEOC timely objected to Magistrate Judge Williams’ order. The Court
has reviewed the hearing as well as the written materials on file.
II.

Standard of Review
A district court reviewing a magistrate judge’s decision on nondispositive issues should modify

or set aside that decision if it is clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a); 28
U.S.C. § 636(b)(1)(A). The Court may also sua sponte reconsider any matter determined by a
magistrate judge. L.R. 73.1(a); Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760 (7th Cir. 2009).
In reviewing a magistrate judge’s discovery ruling, the Court must keep in mind that judges have broad
discretion when deciding discovery disputes or delimiting the scope of discovery. Thermal Design, Inc.
v. Am. Soc’y of Heating, Refrigerating & Air-Conditioning Eng’rs, Inc., 755 F.3d 832, 838 (7th Cir.
2014) (citing Corley v. Rosewood Care Ctr., Inc., 142 F.3d 1041, 1052 (7th Cir.1998)).
III.

Analysis
At his February 25, 2016, hearing and in his February 26, 2016, order Magistrate Judge Williams

addressed a number of discovery disputes regarding the EEOC’s responses to Amsted’s interrogatories
and request for document production (“RFP”). Only some of Magistrate Judge Williams’ rulings are
the target of the EEOC’s current objection. All involve the proper scope of discovery, which is set forth
in Federal Rule of Civil Procedure 26(b)(1):
Parties may obtain 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
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discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.
The EEOC has grouped its objection to the rulings as to Interrogatory #6, RFP #8 and RFP #9 together,
and its objection to the rulings as to Interrogatory #9, Interrogatory #14, RFP #4 and RFP #5 together.
The Court will address each group in turn.
A.

Interrogatory #6, RFP #8 and RFP #9

In summary, these discovery requests seek medical information and medical records of claimants
going as far back as 2005, approximately five years before Amsted’s alleged discriminatory conduct.
The EEOC has taken the position that the production should be limited. Magistrate Judge Williams
ruled as follows:
Interrogatory #6: In this interrogatory, Amsted asked the EEOC to identify for each claimant all
health care providers who treated each claimant from January 1, 2005, to the present, along with
the nature and period of treatment. The EEOC responded for 30 of the 50 claimants and limited
its response to three categories of treatment (carpal tunnel syndrome, treatment related to the
inability to work after a claimant’s application for employment by Amsted, and emotional
distress after Amsted’s failure to hire), objecting to the full request as overly burdensome, overly
broad, irrelevant and privileged. Magistrate Judge Williams ordered the EEOC to provide
information as to all claimants about all medical providers and treatment within the requested
time period without limitation. He reasoned that mental health or medical treatment prior to
Amsted’s employment decision is relevant to the causation and magnitude of emotional distress
suffered after the failure to hire. He further found that approximately five years prior to the
alleged discriminatory acts to be a reasonable period for such an inquiry in an interrogatory.
RFP #8: In this RFP, Amsted asked the EEOC to produce documents, including medical records,
indicating a claimant’s inability to work beginning in 2009, approximately two years before the
alleged discriminatory conduct. The EEOC objected to production of documents regarding
conditions that ended before a claimant applied to work at Amsted as overly broad, unduly
burdensome and irrelevant. Magistrate Judge Williams ordered that responsive documents in a
claimant’s possession, including medical documents, be produced. If the claimant had applied
for disability benefits, the EEOC must produce documents submitted in support of the claim and
documents indicating the disposition of the claim.
RFP #9: In this RFP, Amsted asked the EEOC to produce all medical records for each claimant
beginning in 2005. Amsted limited its response consistent with its response to Interrogatory #6,
objecting to the full request as overly burdensome, overly broad and irrelevant. For the same
reasons applicable to his ruling on Interrogatory #6, Magistrate Judge Williams overruled the
EEOC’s blanket objection. He ordered the EEOC to produce all responsive documents within a
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claimant’s possession, subject to redactions to be worked out between the parties or decided by
the Court on a case by case basis, or to produce an authorization for Amsted to obtain the
claimant’s medical records.
In its objection, the EEOC concedes that it should produce all records relating to carpal tunnel
syndrome and, for seven claimants Amsted claims it did not hire because of other medical conditions,
that it should produce medical information and records regarding those other conditions going back to
2005. As to the other information sought, the EEOC argues medical information that predates an
application to work for Amsted is irrelevant if the medical condition was over before the claimant
applied for work and if Amsted did not know of the condition at the time of its hiring decision. For the
first time, the EEOC argues mental health information that would be disclosed in the document
production would improperly reveal matter covered by the psychotherapist-patient privilege, at least for
those claimants seeking to recover for only “garden variety” emotional distress.
Amsted responds that the medical information Magistrate Judge Williams ordered to be
produced is relevant, not privileged, and proportionate to the needs of the case. It argues a claimant’s
medical condition is not only relevant to his or her emotional distress but to whether he or she is a
qualified individual under the ADA. 1 It further notes that private health information can be produced
consistent with HIPAA so long as there is a protective order, which there is in this case, and that the
EEOC has waived its right to assert the psychotherapist-patient privilege by not raising it before
Magistrate Judge Williams and not establishing it applies to any of the discovery sought in this case.
With respect to the foregoing discovery requests, Magistrate Judge Williams’ factual findings
were not clearly wrong, and his conclusions were not contrary to law. It was not an error to conclude
that the evidence sought is relevant to the question of damages, as least as long as emotional distress
In its reply brief, the EEOC asserts the unremarkable proposition that medical information not known
to Amsted at the time it made its employment decision is not relevant to its reasons for that decision.
However, this was not the basis for Magistrate Judge Williams’ relevance finding, so this argument does
not sway the Court to overturn that finding.
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remains an issue. Furthermore, Magistrate Judge Williams was correct that that responses to
Interrogatory #6 require only provider names and the general nature and duration of the treatment, not
any privileged matter or details of the treatment. See Santelli v. Electro-Motive, 188 F.R.D. 306, 310
(N.D. Ill. 1999).
Finally, to the extent privileged material is reflected in the medical records, Magistrate Judge
Williams did not abuse his discretion in ordering the parties to attempt to work out appropriate
redactions, with the understanding that any objections to redactions would be reviewed by the Court on a
case by case basis if challenged. In such proceedings, Magistrate Judge Williams may consider the
psychotherapist-patient privilege, see Jaffee v. Redmond, 518 U.S. 1 (1996), whether a claimant has
waived that privilege, see Doe v. Oberweis Dairy, 456 F.3d 704, 718 (7th Cir. 2006); Santelli, 188
F.R.D. at 308, and any other appropriate measures to protect mental health records. Production of other
private information will be appropriately protected by the HIPAA-qualified protective order in place.
It is clear from the hearing and the written order that Magistrate Judge Williams has considered
the appropriate factors in applying the scope of discovery in this case, including the importance of the
discovery to the claimants’ emotional distress claims, the fact that Amsted has little access to this
information in any other way, the burden of production compared to its benefit, and the possibility that
privileged information may need to be protected from disclosure by redaction. Because none of
Magistrate Judge Williams’ foregoing rulings was clearly erroneous or contrary to law, the Court will
not disturb those rulings.
B.

Interrogatory #9, Interrogatory #14, RFP #4 and RFP #5

In summary, these discovery requests seek employment/unemployment and income information
and records of claimants beginning before their applications to work at Amsted. The EEOC has taken
the position that the production should be limited. Magistrate Judge Williams ruled as follows:
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Interrogatory #9: In this interrogatory, Amsted asked the EEOC to provide income information for
each claimant beginning two years before each claimant applied to work at Amsted, regardless of
the source of the income. The EEOC responded with information beginning from each
claimant’s application and excluded income from third-parties benefits such as social security or
worker’s compensation, objecting that a broader response would not be relevant. Magistrate
Judge Williams found that earned income information covering the two years prior to a
claimant’s application was relevant to a claimant’s mitigation of damages, that is, what the
claimant would have been able to earn after Amsted turned him or her down. As for third-party
benefits, Magistrate Judge Williams held that whether a claimant received third-party benefits as
a result of an inability to work (e.g., Social Security disability benefits, other disability insurance
benefits, worker’s compensation) is relevant to whether the claimant was a qualified individual
under the ADA, that is, whether they could perform essential job functions, but that the amount
of those benefits is not relevant. Accordingly, Magistrate Judge Williams ruled that the EEOC
need not provide the amount of the benefit but it must provide the date of the request for benefits,
the period benefits were paid and the justification for granting the benefits.
Interrogatory #14: In this interrogatory, Amsted asked the EEOC to provide each claimant’s work
history beginning in high school. The EEOC objected to the request for pre-application
information as irrelevant. For the same reasons applicable to his ruling on Interrogatory #9,
Magistrate Judge Williams found that work history beginning two years before each claimant’s
application to work at Amsted was relevant and directed the EEOC to provide that information.
RFP #4: In this RFP, Amsted asked the EEOC to produce documents indicating a claimant’s income
beginning in 2009. For the same reasons applicable to his ruling on Interrogatory #9, Magistrate
Judge Williams ordered production of documents showing income earned during the two years
before a claimant applied to work for Amsted. Magistrate Judge Williams noted that this could
be accomplished by producing W2s or paycheck stubs, or if those documents were not available,
redacted tax returns in a claimant’s possession.
RFP #5: In this RFP, Amsted asked the EEOC to produce documents indicating employment benefits
(like 401K plans) beginning two years before a claimant’s application to work at Amsted.
Magistrate Judge Williams interpreted the request to seek documents indicating benefits received
by a claimant during that time period and ordered production of such documents in a claimant’s
possession.
In its objection, the EEOC argues work history that predates a claimant’s application to work at
Amsted is irrelevant to the issue of back pay, which is only impacted by a claimant’s work history after
Amsted’s alleged discriminatory conduct. The EEOC faults Magistrate Judge Williams’ relevance
analysis regarding mitigation of damages because he posited a claimant might have had the ability to get
a better paying job than the one he or she applied for at Amsted when the law only requires efforts to get
a substantially equivalent job. The EEOC also argues a claimant’s receipt of benefits from third parties
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for an inability to work before application to Amsted is not relevant to back pay or mitigation of damages
or to Amsted’s reasons for failing to hire a claimant.2
Amsted responds that a claimant’s work history is relevant to his or her ability to find comparable
work following the alleged discriminatory conduct and to an after-acquired evidence defense to limit its
damages.3 Amsted also argues that pre-application third-party benefits are relevant to the claimant’s
qualifications to work at Amsted.
With respect to the foregoing discovery requests, Magistrate Judge Williams’ factual findings
were not clearly wrong, and his conclusions were not contrary to law. It was not an error to conclude
that two years of pre-application employment evidence was relevant to the claimant’s mitigation of
damages in that his or her ability to get another job would depend on his prior work and earned income
history. Magistrate Judge Williams explained this numerous times during the February 25, 2016,
hearing.
Magistrate Judge Williams found a claimant’s statements to a third-party benefit provider
regarding his or her ability to work during the two years before applying to Amsted is relevant to whether
he or she was qualified for the chipper position at Amsted. Thus, documents relating to those claims,
other than amounts awarded in benefits, were properly found to be discoverable. This was not a clear
factual error or a mistake of law.
Because none of Magistrate Judge Williams’ rulings was clearly erroneous or contrary to law, the
Court will not disturb those rulings.
In its reply brief, the EEOC objects for the first time to Magistrate Judge Williams’ ruling on disclosure
of receipt of employment benefits, as sought in RFP #5. Because the EEOC raised this issue for the first
time in its reply brief, it has waived this argument as a basis for overturning Magistrate Judge Williams’
discovery ruling. See Wright v. United States, 139 F.3d 551, 553 (7th Cir. 1998) (holding that
arguments raised for the first time in a reply brief are waived).
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In its reply brief, the EEOC objects to Amsted’s assertion that a claimant’s pre-application work history
would be relevant to an after-acquired evidence defense. However, this was not the basis for Magistrate
Judge Williams’ relevance finding, so this argument does not sway the Court to overturn that finding.
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IV.

Conclusion
For the foregoing reasons, the Court:


OVERRULES the EEOC’s objections (Doc. 63);



AFFIRMS Magistrate Judge Williams’ February 26, 2016, order (Doc. 61); and



ORDERS that the EEOC shall have 21 days from entry of this order to respond to the discovery
requests considered in this order. Requests for extensions of time shall be directed to Magistrate
Judge Williams.

IT IS SO ORDERED.
DATED: May 9, 2016
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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