Blakely et al v. Big Lots Stores Inc

Filing 58

OPINION AND ORDER: Court GRANTS IN PART AND DENIES IN PART AS MOOT 47 Motion to Compel Certain Discovery Responses and DENIES 48 Motion to Compel Discovery from Plaintiffs. Signed by Magistrate Judge Andrew P Rodovich on 5/21/2012. cc: John J Krimm PHV, Jr (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LORINE BLAKELY, LILLIAN M.
)
BROWN, TIERNEY LOKEY, MABEL
)
OWUSU, JULIA E. ROGERS, ANGELA )
SALES-STEPHENS, LEOLA NANCY
)
STONE, VERRETTA TERRY, KIA
)
THOMAS, ANGELA L. WALKER, MARLO)
WILLIAMS, MARY B. WILLIAMS,
)
)
Plaintiffs
)
)
v.
)
)
BIG LOTS STORES, INC.,
)
)
Defendant
)

Case No. 2:10 cv 342

OPINION AND ORDER
This matter is before the court on the Motion to Compel
Certain Discovery Responses [DE 47] filed by the plaintiffs,
Lorine Blakely, Lillian M. Brown, Tierney Lokey, Mabel Owusu,
Julie E. Rogers, Angela Sales-Stephens, Leola Nancy Stone, Verretta Terry, Kia Thomas, Angela Walker, Marlo Williams, and Mary
B. Williams, on February 24, 2012, and the Motion to Compel
Discovery from Plaintiffs [DE 48] filed by the defendant, Big
Lots Stores, Inc., on March 28, 2012. For the reasons set forth
below, the Motion to Compel Certain Discovery Responses [DE 47]
is GRANTED IN PART and DENIED IN PART AS MOOT, and the Motion to
Compel Discovery from Plaintiffs [DE 48] is DENIED.

Background
In 2009, Big Lots closed Store Number 1739 in Merrillville,
Indiana, and opened Store Number 5088 in a nearby area of
Merrillville.

The plaintiffs allege that Store 1739 was located

in a predominantly African-American area and that Store 5088 was
located in a predominantly Caucasian area. The plaintiffs filed a
complaint alleging that African-American associates who worked at
Store 1739 were discouraged from applying for a transfer to Store
5088 because of race.

The plaintiffs initiated discovery and

served Interrogatories and Requests for Production of Documents
on Big Lots.

Big Lots provided some responses but objected to

certain discovery requests as irrelevant and overly broad.
In an attempt to resolve their discovery disputes, the
plaintiffs sent a letter revising the terms of its requests to
Big Lots on January 9, 2012.

On February 6, 2012, Big Lots sent

a letter to the plaintiffs requesting that deficiencies in their
discovery responses be supplemented.

On February 10, 2012, Big

Lots responded to the plaintiffs’ initial correspondence and
explained that it objected to the following requests as irrelevant and overly broad:

(1) previous discrimination complaints

lodged against the defendant (Interrogatories 2 and 9, Requests 8
and 9); (2) all documents related to store closings in the
Midwest Region from 2007 - 2010 (Interrogatory 13, Request 31);
(3) work performance documents related to the plaintiffs’ super2

visors (Request 26); and (4) information regarding employee
transfers in Indiana between 2007 - 2010 (Interrogatory 14).
The plaintiffs filed a Motion to Compel Certain Discovery
Responses on February 24, 2012.

In return, Big Lots filed its

response along with a Cross Motion to Compel Discovery from the
plaintiffs, alleging that the plaintiffs failed to provide tax
documents and information related to employment since termination.

On March 13, 2012, the plaintiffs provided Big Lots with

supplemental discovery responses, specifically six additional tax
returns omitted from the plaintiffs’ initial discovery response.
Discussion
Discovery is a mechanism to avoid surprise, disclose the
nature of the controversy, narrow the contested issues, and
provide the parties a means by which to prepare for trial. 8
Wright & Miller, Federal Practice and Procedure §2001, at 44-45
(2d ed. 1994). To effectuate these purposes, the federal discovery rules are liberally construed. Spier v. Home Insurance Co.,
404 F.2d 896 (7th Cir. 1968); 8 Wright & Miller, Federal Practice

and Procedure §2001, at 44 (2d ed. 1994). When discovery disputes
arise, district courts have broad discretion. Hunt v. DaVita,

Inc., ___ F.3d ___, 2012 WL 1560396, *4 (7th Cir. 2012); Patterson v. Avery Dennison Corp., 281 F.3d 676 (7th Cir. 2002) (citations omitted). Additionally, courts "should independently determine the proper course of discovery based upon the arguments of
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the parties." Giles v. United Airlines, Inc., 95 F.3d 492, 496
(7th Cir. 1996).
A party may "obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party, including the existence, description, nature, custody,
condition and location of any books, documents, or other tangible
things." Federal Rule of Civil Procedure 26(b)(1). For discovery
purposes, relevancy is construed broadly to encompass "any matter
that bears on, or that reasonably could lead to other matter[s]
that could bear on, any issue that is or may be in the case."

Chavez v. Daimler Chrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind.
2002) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978)). Even when
information is not directly related to the claims or defenses
identified in the pleadings, the information still may be relevant to the broader subject matter at hand and meet the rule's
good cause standard. Sanyo Laser Prods., Inc. v. Arista Records,

Inc., 214 F.R.D. 496, 502 (S.D. Ind. 2003). See Adams v. Target,
2001 WL 987853, *1 (S.D. Ind. 2001) ("For good cause, the court
may order discovery of any matter relevant to the subject matter
involved in the action.").

See also Shapo v. Engle, 2001 WL

629303, *2 (N.D. Ill. May 25, 2001) ("Discovery is a search for
the truth.").

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A party may seek an order to compel discovery when an
opposing party fails to respond to discovery requests or has
provided evasive or incomplete responses. Federal Rule of Civil
Procedure 37(a)(2)-(3). The burden "rests upon the objecting
party to show why a particular discovery request is improper."

Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447,
449-50 (N.D. Ill. 2006). The objecting party must show with
specificity that the request is improper. Graham v. Casey's

General Stores, 206 F.R.D. 253, 254 (S.D. Ind. 2002). That burden
cannot be met by "a reflexive invocation of the same baseless,
often abused litany that the requested discovery is vague,
ambiguous, overly broad, unduly burdensome or that it is neither
relevant nor reasonably calculated to lead to the discovery of
admissible evidence." Burkybile v. Mitsubishi Motors Corp., 2006
WL 2325506, *6 (N.D. Ill. Aug. 2, 2006) (internal quotations and
citations omitted).

Rather, the court's broad discretion in

deciding such discovery matters should consider "the totality of
the circumstances, weighing the value of material sought against
the burden of providing it, and taking into account society's
interest in furthering the truth-seeking function in the particular case before the court." Patterson, 281 F.3d at 681.

See also

Hunt, ___ F.3d ___, 2012 WL 1560396 at *4 (explaining that the
district court has broad discretion in supervising discovery).

5

In the context of employment discrimination, "discovery is
generally limited to information about employees in the same
department or office, absent a showing of a more particularized
need for, and likely relevance of, broader information." Chavez,
206 F.R.D. at 620.

The rationale behind such a limitation is

that only the motives of the supervisors who made the employment
decisions affecting the plaintiff and other employees similarly
situated are relevant to determining if the employment decisions
at issue were improper.

See Owens v. Sprint/United Management

Co., 221 F.R.D. 649, 653-655 (D. Kan. 2004).
To determine the relevant scope of discovery in employment
discrimination law suits, courts first determine who the similarly situated employees are.
340, 342 (7th Cir. 1994).

Gehring v. Case Corp., 43 F.3d

To gauge comparison, courts consider

other employees’ circumstances and determine if they are close
enough to the plaintiffs' claims.

Balderston v. Fairbanks Morse

Engine Div. of Coltec Industries, 328 F.3d 309, 320 (7th Cir.
2003).

The court then must determine which supervisors primarily

were responsible for the employment decisions regarding the
plaintiff and the similarly situated employees.
F.R.D. at 621.

Chavez, 206

Generally, the court will limit discovery to

information pertaining to the supervisor of the employee alleging
discrimination and those identified as similarly situated unless
the plaintiff demonstrates a particularized need for more infor6

mation.

Chavez, 206 F.R.D. at 621. See also Tomanovich v. Glen,

2002 WL 1858795, *3 (Aug. 13, 2002) (explaining Chavez, 206
F.R.D. at 621).
As an initial matter, it will be helpful to set the parameters of discovery.

Big Lots objected to numerous discovery

requests on the ground that discovery should be limited only to
the information pertaining to the supervisors involved in the
hiring for Store #5088. Generally, in employment discrimination
cases, discovery is limited to the supervisors responsible for
making the employment decision.

However, the plaintiffs allege

that they were discriminated against because of a company policy
that stemmed from a source above the store level. For a national
retail store like Big Lots, the process of closing one store and
transferring those affected employees to a new store inherently
involves more individuals with supervisory power than the hiring
supervisor of the newly opened store.
Further, as noted by both parties, Big Lots had a written
transfer policy.

Big Lots does not claim that only those super-

visors in charge of hiring for Store #5088 created or implemented
the written policy.

In fact, the record indicates that the

immediate supervisor of any employee interested in transferring
was required to contact the Regional Human Resources Manager, but
the record does not reveal which individuals made the ultimate

7

decision.

Therefore, the regional managers were involved in the

transfer decisions.
With that said, the court must set reasonable boundaries so
as to avoid requests that are overly burdensome by considering
the relevant pool of employees and supervisors.
F.R.D. at 621.

Chavez, 206

The complaint arises from alleged discriminatory

acts against employees who sought transfer.

Therefore, the

relevant pool of employees is those individuals who were subjected to the same transfer procedure as implemented.
Because the motives of the supervisors who made the employment decisions are at issue, the geographic region must be
limited to the area under supervision by the same persons who set
the policies for Store #1739 and Store #5088.

That is to say,

because Big Lots’ written transfer policy affects more than just
those two stores, the relevant scope of policy makers is not
limited to just those two stores.

The target scope is those

persons who carried out the transfer policy within the affected
region.

The record reveals that both stores were located in

Region 7 of Big Lots’ operating areas.

Any transfer decisions

made within Region 7 may have reflected discriminatory practices
of the regional managers and are relevant to the plaintiffs’
complaint.
With these restraints in mind, the court now will assess the
specific discovery requests.

In Request 31, the plaintiffs seek
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all documents relating to store closings which occurred within
the Midwest region between 2007 and 2010, including but not
limited to staffing, compensation, transfers, and announcements.
Interrogatory 13 asks for information related to all store
closings in Indiana between 2007 and 2010.

Big Lots argues that

both requests are not relevant, and then attempts to transfer the
burden to the plaintiffs to establish the relevancy.

Big Lots’

placement of the burden on the plaintiffs is misguided.

The

burden is on Big Lots to show why the requests are not relevant.

See Vajner v. City of Lake Station, Indiana, 2010 WL 4193030, *2
(N.D. Ind. 2010) (explaining that the burden of proof is on the
party opposing production of the discovery documents).
Big Lots is unable to satisfy its burden because the relevancy is readily apparent.

Information related to other store

closings in the relevant geographic area and time frame can be
used to "test" whether Big Lots in fact applied its written
policy or relied upon an "unwritten" policy.

Such a determina-

tion may be probative of whether disparate treatment occurred.
Furthermore, the plaintiffs must prove that Big Lots applied
a different transfer policy to the plaintiffs, either written or
unwritten, than was applied to similarly situated transferees.
By reviewing information regarding other store closings, the
plaintiffs may ascertain admissible evidence that it can use to
prove disparate treatment.

Additionally, the plaintiffs may
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discover that other store closings involved similar situations
whereby African American employees were dissuaded from applying
for transfer to a new store as a matter of official or unofficial
pattern or practice.

Even without a pattern or practice of dis-

parate treatment, evidence of systemic discrimination is relevant
to and probative of the issue of pretext.
F.3d 546, 552–53 (7th Cir. 2000).

Bell v. E.P.A., 232

Therefore, the information

requested in Request 31 and Interrogatory 13 is relevant to the
plaintiffs’ case.
Big Lots also alleges that because the plaintiffs failed to
specify categories of documents, their requests were vague and
ambiguous.

Big Lots claims it is unable to ascertain the meaning

of the words "staffing," "compensation," "transfers," and "announcements" even though they are being used in the context of an
employment discrimination suit stemming from the closing of a
store.

In fact, Big Lots must have been able to deduce the scope

of the request as it was able to provide satisfactory documentation to the plaintiffs regarding the closing of the Hobart,
Indiana store.

This court can expect Big Lots to produce similar

documents for other relevant stores based on its demonstrated
capability.
That said, Big Lots’ point is not lost with this court.

As

written, the plaintiffs’ requests may be interpreted to seek all
documents related to the closing of stores within the region.
10

If

this was in fact what the plaintiffs sought, the scope of the
requests would encompass non-relevant documents and information.
However, the plaintiffs included qualifying examples, making it
apparent that they sought only the information from the store
closing activities and procedures that affected employment
relationships.

For example, Big Lots must include employment

status documents but exclude documents related to construction
contracts or other similar ancillary activities that may have
occurred when a retail store closed.

When applied to "announce-

ments" this would include human resources bulletins but exclude
advertising and marketing documents.

The scope of this request

is ascertainable and can be completed as directed.
Big Lots further argues that both requests for store closing
documents are overly burdensome and akin to a "fishing expedition."

Big Lots feels that the plaintiffs’ geographic limita-

tions would produce "countless" documents.

Beyond these conclu-

sory statements, Big Lots does not explain how such a request
would be so burdensome.

Regardless, "the mere fact that [a

party] will be required to expend a considerable amount of time,
effort, or expense in answering the [request] is not a sufficient
reason to preclude discovery.”

Schaap v. Executive Inds., Inc.

130 F.R.D. 384, 387 (N.D. Ill. 1990).
As for Interrogatory 13 and Request 31 specifically, the
plaintiffs’ intended scope of information was clear.
11

The plain-

tiffs did not seek all details of store closings.

Rather, they

sought all information related to how the store closing affected
employment relationships, specifically transfers.

Therefore, the

discovery requests shall be limited to information related to the
employment relationship for all associates affected by store
closings in Region 7 from 2007 to 2010.

Accordingly, the plain-

tiffs’ Motion to Compel Discovery Responses to Request 31 and
Interrogatory 13 is GRANTED subject to the limitations set forth.
Next, the plaintiffs seek information related to all employee transfers that occurred in Indiana between 2007 and 2010.
Big Lots argues that other employee transfers are not relevant.
This argument is without merit because information related to
other similarly situated transferees in the relevant geographic
region can be used by the plaintiffs to establish pretext or a
pattern and practice.

See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 804-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Although the type of information sought is relevant, the
plaintiffs’ geographic scope is not.

The plaintiffs requested

all transfer documents for employees within the geographic region
of Indiana.

Indiana is divided into two regions, Region 5 and 7.

The regions employed different supervisors who were responsible
for implementing the transfer policies.

Consequently, regional

supervisors who were not responsible for implementing the transfer policy in the region where stores 1739 and 5088 are located
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are unnecessarily included in the plaintiffs’ "Indiana" limitation.
To remedy this, and to ensure discovery only encompasses the
motives of the supervisors who made the employment decisions
affecting the plaintiffs and other employees similarly situated,
the court will limit the plaintiffs' transferee data request to
Region 7.

The record reveals that Region 7 includes all or parts

of 16 states.

Big Lots complains that providing information for

this region is overly burdensome because it "could contemplate
hundreds of transfers between stores . . . ." and it has no
ascertainable method for identifying transferees. (emphasis
added) (Deft. Mem. p. 16)

Big Lots claims that it would have to

sift through each personnel file in each store over the relevant
time period to determine which employees were affected by the
transfer policy.

Big Lots’ argument does not meet the required

level of specificity to establish that a request is unduly
burdensome because, without more proof, it can just as easily be
argued that the request will lead to several transfers instead of
hundreds.

Without more, an unsupported claim of undue burden is

mere speculation.

The amount and disorganization of the records

alone does not preclude discovery.

See Rawat v. Navistar Int’l.

Corp., 2011 WL 3876957, *11 (N.D. Ill. Sept. 1, 2011) (citing
Schaap, 130 F.R.D. at 387).

13

Because the relevant managers may have implemented their
policies across the entire region, the information sought from
Region 7 is relevant to the plaintiffs’ claim.

Therefore, the

plaintiffs’ Motion to Compel Discovery Responses to Interrogatory
14 is GRANTED as limited to Region 7.
Next, in Interrogatories 2 and 9 and Requests 8 and 9, the
plaintiffs seek all prior complaints of age and race discrimination along with the identities of the individuals who made the
complaints.

Big Lots acknowledges that there may be relevant

information as it pertains to complaints and lawsuits against the
supervisors involved in the hiring process for Store #5088, but
it objects to evidence pertaining to additional stores as not
probative and will fail to establish a pattern or practice of
discrimination.
The court already has explained the plaintiffs’ need for
information related to other similarly situated transferees
requires a broader scope than the two stores at issue to establish a policy or practice across the region.

Moreover, evidence

of other employees' complaints of discrimination may be relevant
to establish pretext.

See McDonnell Douglas Corp., 411 U.S. at

804-05, 93 S.Ct. at 1817 (stating that an employer's general
policy and practice with respect to minority employment may be
relevant to establish pretext).

Big Lots insists that the

plaintiffs may obtain the information requested through public
14

forums.

However, not all relevant information is reported in

those forums.

Therefore, Big Lots must produce discovery per-

taining to prior complaints and lawsuits alleging race or age
discrimination that occurred in Region 7 between 2007 and 2010.
The plaintiffs’ Motion to Compel Discovery Responses to Interrogatories 2 and 9 and Requests 8 and 9 is GRANTED subject to the
limitations set forth.
The plaintiffs’ Request 26 sought the plaintiffs’ supervisors’ work performance documents.

However, the parties resolved

this matter subsequent to the filing of the plaintiffs’ motion to
compel.

Therefore, the motion to compel is DENIED AS MOOT as to

this request.
Finally, this court must assess the defendant’s Cross Motion
to Compel Discovery from Plaintiffs.

Local Rule 37.1(a) requires

that parties to a discovery dispute "converse, confer, compare
views, consult and deliberate."

Barbour v. Memory Gardens Mgmt.

Corp., 2008 WL 1882847, *1 (N.D. Ind. 2008).

Although Big Lots

was resistant in the initial discovery request, it nonetheless
conversed with the plaintiffs via letter, email, and phone
conversations.

Such communications satisfy Local Rule 37.1(a) as

applied to those discovery differences which were in fact the
subject matter of the communication.
As for Big Lots' assertion that the plaintiffs have failed
to provide initial tax return information, prior complaints,
15

attempts at future employment, earnings since termination, and
supplement responses, Big Lots did not include these inadequacies
when communicating with the plaintiffs about discovery.

It is

true that Big Lots sent a letter on February 6, 2012, that
referenced some of the plaintiffs’ discovery deficiencies;
however, the duty to confer requires "more than mailing a letter
to opposing counsel."

Williams v. Bd. Of County Comm’rs of

Unified Gov’t of Wyandotte County and Kansas City, Kan., 192
F.R.D. 698, 700 (D. Kan. 2000).

As such, the plaintiffs did not

have an opportunity to cure any alleged discovery dispute as it
pertained to its own omissions.

Once the plaintiffs became aware

of Big Lots’ contentions, it supplemented its discovery as
needed.

Therefore, because Big Lots did not comply with Local

Rule 37.1(a) regarding the plaintiffs' discovery omission, and
because the plaintiffs provided the information sought after the
issue was raised, Big Lots’ Cross Motion to Compel Discovery is
DENIED.

_______________

Based on the foregoing, the Motion to Compel Certain Discovery Responses [DE 47] filed by the plaintiffs on February 24,
2012, is GRANTED IN PART and DENIED IN PART AS MOOT, and the
Motion to Compel Discovery from Plaintiffs [DE 48] filed by the
defendant on March 28, 2012, is DENIED.

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ENTERED this 21st day of May, 2012

s/ ANDREW P. RODOVICH
United States Magistrate Judge

17