Equal Employment Opportunity Commission v. Fair Oaks Dairy Farms LLC
Filing
47
OPINION AND ORDER: Court DENIES 30 Motion to Stay Discovery as to Fair Oaks Dairy Farms, LLC only; and GRANTS IN PART AND DENIES IN PART 35 Motion for Protective Order Regarding Immigration Status and/or Employment History. Signed by Magistrate Judge Andrew P Rodovich on 8/1/2012. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
)
)
)
Plaintiff
)
)
v.
)
)
FAIR OAKS DAIRY FARMS, LLC; FAIR)
OAKS DAIRY PRODUCTS, LLC dba
)
Fair Oaks Farms,
)
)
Defendants
)
CIVIL NO. 2:11 cv 265
OPINION AND ORDER
This matter is before the court on the Motion to Stay
Discovery as to Fair Oaks Dairy Farms, LLC Only [DE 30] filed by
the defendant, Fair Oaks Dairy Farms LLC, on April 4, 2012, and
the Motion for Protective Order Regarding Immigration Status
and/or Employment History [DE 35] filed by the plaintiff, EEOC,
on May 25, 2012.
For the following reasons, the Motion to Stay
[DE 30] is DENIED, and the Motion for Protective Order [DE 35] is
GRANTED IN PART and DENIED IN PART.
Background
Martha Marquez filed a charge of discrimination with the
EEOC on October 20, 2010, alleging that she was sexually harassed
while employed by the defendants, Fair Oaks Dairy Farms and Fair
Oaks Dairy Products.
She accused the manager of the cheese and
milk department of touching her vagina through her clothing and
exposing his genitalia.
After investigating Marquez’s allega-
tions, the EEOC found the evidence substantiated her claim and
attempted to resolve the matter through conciliation.
When con-
ciliation failed, the EEOC filed its complaint on July 22, 2011,
against Dairy Farms, alleging sexual harassment in violation of
Title VII of the Civil Rights Act of 1964.
The EEOC amended its complaint on September 29, 2011, to add
Dairy Products.
Dairy Farms subsequently filed a motion to
dismiss, arguing that it did not employ Marquez or the alleged
harasser and could not be held liable for the incident.
opposed the motion.
The EEOC
On April 4, 2012, Dairy Farms filed a motion
to stay discovery pending the district court’s ruling on its
motion to dismiss.
Dairy Farms argues that subjecting it to
discovery would be burdensome, turn up irrelevant information,
and cause unnecessary expense.
On May 4, 2012, Dairy Products served the EEOC and Marquez
with discovery requests seeking Marquez’s resume, educational
diplomas, transcripts, attendance record, immigrant or nonimmigrant visa, passport, birth certificate, and state and
federal tax returns.
Dairy Products also inquired into Marquez’s
efforts to obtain subsequent employment and actual subsequent
employment.
Dairy Products contends that the information is
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relevant background information, will shed light on the damages
Marquez suffered, and will support its affirmative defenses.
In the complaint, the EEOC states that it seeks "appropriate
compensation for past pecuniary losses resulting from the unlawful employment practices."
In a separate paragraph, the EEOC
requests "compensation for past nonpecuniary losses resulting
from the unlawful employment practices".
The EEOC sent corre-
spondence to Dairy Product's counsel stating that it does not
seek back pay, front pay, reinstatement, or any other sort of
pecuniary compensatory damages.
Marquez’s damages are limited to
the emotional distress caused by the sexual harassment she
experienced.
Because of this limitation, the EEOC maintains that
Dairy Product’s discovery requests seek irrelevant information
and seeks a protective order.
Discussion
A court has incidental power to stay proceedings, which
stems from its inherent power to manage its docket.
Landis v.
North American Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 166, 81
L.Ed. 153 (1936); Walker v. Monsanto Co. Pension Plan, 472
F.Supp.2d 1053, 1054 (S.D. Ill. 2006).
The decision to grant a
stay is committed to the sound discretion of the court and must
be exercised consistent with principles of fairness and judicial
economy.
Brooks v. Merck & Co., 443 F.Supp.2d 994, 997 (S.D.
3
Ill. 2006); Rutherford v. Merck & Co., 428 F.Supp.2d 842, 845
(S.D. Ill. 2006); George v. Kraft Foods Global, 2006 U.S. Dist.
LEXIS 92886, *4 (S.D. Ill. 2006).
"Courts often consider the
following factors when deciding whether to stay an action: (i)
whether a stay will unduly prejudice or tactically disadvantage
the non-moving party, (ii) whether a stay will simplify the
issues in question and streamline the trial, and (iii) whether a
stay will reduce the burden of litigation on the parties and on
Abbott Laboratories v. Matrix Laboratories, Inc.,
the court."
2009 WL 3719214, *2 (N.D. Ill. 2009).
"The general test for
imposing a stay requires the court to 'balance interests favoring
a stay against interests frustrated by the action' in light of
the 'court's paramount obligation to exercise jurisdiction timely
in cases properly before it.'"
SanDisk Corp. v. Phison Electron-
ics Corp., 538 F.Supp.2d 1060, 1066 (W.D. Wis. 2008) (citing
Cherokee Nation of Oklahoma v. United States, 124 F.3d 1413, 1416
(Fed. Cir. 1997)).
discovery.
The moving party must show good cause to stay
Castrillon v. St. Vincent Hospital and Health Care
Center, Inc., 2011 WL 4538089, *1 (S.D. Ind. 2011) (applying Rule
26(c) good cause standard to motion to stay); DSM Desotech, Inc.
v. 3D Systems Corp., 2008 WL 4812440, *1 (N.D. Ill. Oct. 28,
2008) (same).
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"The filing of a motion to dismiss by itself does not mandate a stay of discovery pending resolution of that motion, nor
does the right to discovery continue in light of a pending
dispositive motion."
Nexstar Broadcasting, Inc. v. Granite
Broadcasting Corp., 2011 WL 4345432, *2 (N.D. Ind. Sept. 15,
2011) (citing Duneland Dialysis LLC v. Anthem Ins. Co., Inc.,
2010 WL 1418392, *2 (N.D. Ind. Apr. 6, 2010) (quoting Simstad v.
Scheub, 2008 WL 1914268, *1 (N.D. Ind. Apr. 29, 2008)).
The
decision to stay a case pending ruling on a motion to dismiss
must be made on a case by case basis.
"A stay is appropriate
where the motion to dismiss can resolve the case, where ongoing
discovery is unlikely to produce facts necessary to defeat the
motion, or where the motion raises a potentially dispositive
threshold issue, such as a challenge to plaintiff's standing."
Nexstar Broadcasting, 2011 WL 4345432 at *2.
The court gives
greater consideration to motions to stay discovery where the
matter involves particularly complex issues.
ing, 2011 WL 4345432 at *3.
timeliness of the request.
Nexstar Broadcast-
The court also will weigh the
Castrillon, 2011 WL 4538089 at *2.
Dairy Farms has provided no more than a bare bones argument
that any discovery would be burdensome because it filed a motion
to dismiss.
However, Dairy Farms is not entitled to have discov-
ery stayed solely because it filed a motion to dismiss.
5
Dairy
Farms must provide some explanation of the burden it will suffer
as a result.
Dairy Farms has not shown that the motion to dis-
miss will resolve the case, that the pending discovery requests
are unrelated to the motion to dismiss, or that the motion raises
a potentially dispositive threshold issue.
Dairy Farms' primary argument is that it will be dismissed
from the case if its motion to dismiss is granted.
In its motion
to dismiss, Dairy Farms argues that it did not employ Marquez or
the alleged harasser and that Title VII only extends to employers.
However, the pending discovery requests appear to bear on
the motion to dismiss and may help the EEOC defeat it.
The EEOC
has inquired into the organizational and ownership structure of
Dairy Farms and Dairy Products which may help it determine who is
liable for the alleged harassment.
The court is less inclined to
stay discovery if it may bear on the motion to dismiss.
Additionally, Dairy Farms has not argued that it will not be
required to submit any discovery if the case is dismissed against
it.
If Dairy Farms is dismissed, the case would remain ongoing
between Dairy Products and the EEOC.
If there is a relationship
between Dairy Farms and Dairy Products, Dairy Farms may be subjected to third-party discovery.
Dairy Farms has not shown how
its burden would be decreased by issuing a stay or what discovery
would be eliminated.
Without further explanation, Dairy Farms'
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only support is that if it is dismissed from the case "much of
the information sought by Plaintiff from Farms will be irrelevant."
Dairy Farms must do more than make boilerplate assump-
tions and should have provided specific examples of the potential
irrelevancy.
See Castrillon, 2011 WL 4539089 at *2 (denying
motion to stay in part because the moving party still would have
to produce discovery if its motion to dismiss was granted and
because the moving party did not identify the specific requests
that it alleged were burdensome).
The court cannot rely solely
on Dairy Farms' assertion without greater explanation.
Dairy Farms has not pointed to a single discovery request
that it alleges would be overly burdensome.
See Castrillon, 2011
WL 4538089 at *2 (denying motion to stay in part because moving
party did not identify specific discovery requests that were
unduly burdensome or expensive).
Again, Dairy Farms simply
states that the discovery would be burdensome and expensive
without greater detail.
The insufficiencies are fatal to its
request.
The only factor that weighs in favor of Dairy Farms' request
is that the court has yet to hold a Rule 16(b) scheduling conference and set discovery deadlines.
Absent deadlines, the EEOC
will suffer little prejudice from a short stay of discovery.
However, this single factor does not overcome the insufficiencies
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that are abundant in Dairy Farms' motion.
Dairy Farms has not
provided a single explanation of the burden it hopes to escape by
staying discovery, nor has it shown how the discovery requests
are overly burdensome.
Dairy Farms cannot rely solely on the
fact that it filed a motion to dismiss as a means of requesting a
See Castrillon, 2011 WL 4538089 at *2 (denying motion to
stay.
stay because it was filed five months after the motion to dismiss, it was not evident the motion to dismiss would be granted,
the motion to dismiss would not resolve all of the plaintiff's
claims because her claims against two defendants would remain
pending and would likely require the party requesting the stay to
produce discovery, and because the motion did not identify any
specific discovery requests that impose an undue burden or
expense).
The motion to dismiss will not resolve the case in its
entirety, and discovery, including discovery served on Dairy
Farms, may remain ongoing.
Without greater explanation, the
court finds the motion insufficient and DENIES the motion to
stay.
The court now turns to the EEOC’s motion for a protective
order.
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
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things."
Federal Rule of Civil Procedure 26(b)(1).
For discov-
ery 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. DaimlerChrysler 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. Borom v. Town of Merrillville, 2009
WL 1617085, *1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser
Prods., Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502 (S.D.
Ind. 2003)).
See also Adams v. Target, 2001 WL 987853, *1 (S.D.
Ind. July 30, 2001)("For good cause, the court may order discovery of any matter relevant to the subject matter involved in the
action."); Shapo v. Engle, 2001 WL 629303, *2 (N.D. Ill. May 25,
2001)("Discovery is a search for the truth.").
A party may move for a protective order in order "to protect
a party or person from annoyance, embarrassment, oppression, or
undue burden or expense. . . ."
Rule 26(c)(1).
The party
requesting the protective order carries the burden of demonstrating good cause; the moving party can satisfy that burden by
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showing some plainly adequate reason for the order. 8 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§2035 (3d ed. 1998).
See also Gregg v. Local 305 IBEW, 2009 WL
1325103, *8 (N.D. Ind. May 13, 2009) ("The burden rests upon the
objecting party to show why a particular discovery request is
improper." (citing Kodish v. Oakbrook Terrace Fire Protection
Dist., 235 F.R.D. 447, 449-50 (N.D. Ill. 2006)); McGrath v.
Everest National Ins. Co., 2009 WL 1325405, *3 (N.D. Ind. May 13,
2009); Carlson Restaurants Worldwide, Inc. v. Hammond Profes-
sional Cleaning Services, 2009 WL 692224, *5 (N.D. Ind. March 12,
2009)).
Specific factual demonstrations are required to estab-
lish that a particular discovery request is improper and that
good cause exists for issuing the order.
See Felling v. Knight,
211 F.R.D. 552, 554 (S.D. Ind 2003) ("To establish good cause a
party must submit 'a particular and specific demonstration of
fact, as distinguished from stereotyped and conclusory statements.'") (quoting Wilson v. Olathe Bank, 184 F.R.D. 395, 397 (D.
Kan. 1999) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102
n.16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981)).
See also Harrison-
ville Telephone Co. v. Ill. Commerce Comm’n, 472 F.Supp.2d 1071,
1078 (S.D. Ill. 2006) (stating that in order to establish good
cause, the movant must rely on particular and specific demonstrations of fact, rather than conclusory statements).
10
The parties first dispute whether Marquez’s resume, educational diplomas, transcripts, and attendance records are subject
to discovery.
The EEOC argues that Marquez only has placed her
employment with the defendants at issue by filing a charge with
the EEOC, not her entire work history.
See Woods v. Fresenius
Med. Care Group of N. America, 2008 WL 151836, *1-2 (S.D. Ind.
Jan. 16, 2008)(explaining that the plaintiff does not put their
entire work history at issue by filing a charge with the EEOC);
EEOC v. Simply Storage Management, Inc., 270 F.R.D. 430, 437
(S.D. Ind. 2010).
The defendants must show a specific reason for
demanding information of past employment and demonstrate why the
information is relevant to the case at hand.
151836 at *1.
Woods, 2008 WL
Otherwise, the information is irrelevant and
outside the scope of discovery.
Dairy Products counters that it has a particularized need
for the information to support its defenses, specifically its
after acquired evidence defense.
"Under this defense, after-
acquired evidence of an employee’s misconduct may limit damages."
Sheehan v. Donlen Corp., 173 F.3d 1039, 1047 (7th Cir. 1999)
(citing McKennon v. Nashville Banner Pub. Co., 513 U.S. 352,
361-62, 115 S.Ct. 879, 886, 130 L.Ed.2d 852 (1995)).
If the
employer is found liable for discrimination, it only is liable
for backpay or front pay from the time of the discharge until the
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time of the newly discovered evidence.
362, 115 S.Ct. at 886.
McKennon, 513 U.S. at
After-acquired evidence defenses usually
arise when the employee misrepresented information on a resume or
job application or committed misconduct post-hire.
See Thompson
v. Tracor Flight Systems, 86 Cal. App. 4th 1156, 1173 (Cal. App.
2001).
See e.g., O’Neal v. City of New Albany, 293 F.3d 998,
1004 (7th Cir. 2002); Coleman v. Keebler, 997 F.Supp. 1102, 1123
(N.D. Ind. 1998).
To relieve itself of liability, the employer
must show that the wrongdoing was so severe that the employee
would have been terminated had the employer been aware of the
circumstances at the time of discharge.
Dairy Products explains that the above cited discovery
request will answer whether Marquez truthfully recounted her
educational and work histories when she applied for a job, what
she was trained to do, what kind of disciplinary history she had,
and how many English classes she had taken in the past.
This
information may bear on or lead to other admissible evidence
showing whether Marquez lied in her application or committed
misconduct post-hire, which may limit Dairy Products' liability.
The EEOC disputes the relevancy, arguing that the after
acquired evidence defense is inapplicable because the damages
sought are limited to those arising from the emotional pain and
suffering Marquez experienced.
However, in separate paragraphs,
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the Amended Complaint requests the "appropriate compensation for
past pecuniary losses resulting from unlawful employment practices" and "past nonpecuniary losses resulting from the unlawful
employment practices . . . including emotional pain and suffering, loss of enjoyment of life, humiliation, embarrassment, and
inconvenience."
The court agrees that the after-acquired evidence defense
would not apply if the EEOC only sought damages for emotional
distress in its complaint, but the most recent complaint maintains the request for pecuniary damages and does not restrict it
to pecuniary damages arising from emotional pain and suffering as
limited in the following paragraph requesting non-pecuniary
damages.
The court reads this as requesting backpay.
Because
the most recent complaint requests such damages, the court will
allow Dairy Products to pursue discovery of its after acquired
evidence defense.
It is undisputed that the information sought
is related to the after acquired evidence defense.
Additionally, Marquez’s employment options and training will
bear on whether she mitigated her damages.
Dairy Products also
represents that the request will lead to information concerning
Marquez’s disciplinary history and may substantiate its stated
reason for terminating her employment, helping to dispel any
argument for pretext.
The EEOC has not demonstrated that provid-
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ing this information falls outside the broad definition of relevance or will cause annoyance, embarrassment, oppression, or
undue burden or expense.
The EEOC has failed to meet is burden
and the requested information must be produced.
The second category of documents Dairy Products requests
include Marquez’s visa, passport, and birth certificate.
Dairy
Products states that it intends to use this information to run a
background check on Marquez, which is standard procedure in defending harassment claims. The EEOC disputes this request, arguing that discovery requests that touch on immigration status are
off-limits when conducting discovery in Title VII claims.
See
EEOC v. City of Joliet, 239 F.R.D. 490, 493 (N.D. Ill. 2006)
(explaining that the prejudice that would result from permitting
discovery of immigration status when suing an employer for an
unfair employment practice would outweigh any probative value);
De La Rosa v. Northern Harvest Furniture, 210 F.R.D. 237, 239
(C.D. Ill. Sept. 4, 2002).
Immigration status is not discover-
able when it is relevant only to determine whether an employee
can recover back pay in a Title VII claim.
De La Rosa, 210
F.R.D. at 239. Denying back pay to illegal immigrants would
interfere with the purpose of Title VII and chill the filing of
complaints.
City of Joliet, 239 F.R.D. at 493 ("As pointed out
in Galaviz-Zamora [v. Brady Farms, Inc., 230 F.R.D. 499 (W.D.
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Mich. 2005)], other courts have found that the in terrorem effect
of inquiring into the immigration status of employees suing their
employer for unfair labor practices is devastating.").
Dairy Products does not assert that this information is
pertinent to defend the case.
Rather, it contends that the
information is necessary to conduct a background check.
Dairy
Products has not explained what information may be revealed by a
background check that may be relevant to defend Marquez’s complaints, nor has it shown why all of this documentation is
necessary to run a background check.
The EEOC represents that
Marquez’s criminal history is encompassed by a different discovery request to which it did not object.
Because Dairy Products
received Marquez’s criminal history from the EEOC and it is not
clear what other information Dairy Products hopes to recover by
requesting these documents, the court finds this request repetitive and overly burdensome.
The EEOC’s motion is granted with
respect to the request for Marquez’s visa, passport, and birth
certificate as relevant.
Finally, the EEOC objects to Dairy Products' request for
Marquez’s state and federal tax returns.
Dairy Products argues
that the information is relevant to show how the harassment
impacted Marquez and whether she suffered emotional damage because of a change in her financial or living situation.
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This
argument is attenuated at best.
Permitting discovery of sensi-
tive personal financial information will not likely lead to
admissible relevant evidence.
See EEOC v. DHL Exp., 2011 WL
6825497, *4 (N.D. Ill. Dec. 27, 2011) (explaining that discovery
request seeking federal and state tax returns would be unduly
burdensome and irrelevant to the charges of discrimination).
Marquez’s tax information will not show whether she suffered
emotional harm because of a decrease in pay, nor is she alleging
that she suffered mental harm because of deceased pay.
Rather,
her claim for emotional pain arises solely from the harassment
she alleges to have suffered.
The court grants the EEOC’s pro-
tective order with respect to the request for Marquez’s tax
returns.
_______________
Based on the foregoing, the Motion to Stay Discovery as to
Fair Oaks Dairy Farms, LLC Only [DE 30] filed by the defendant,
Fair Oaks Dairy Farms, LLC, on April 4, 2012, is DENIED, and the
Motion for Protective Order Regarding Immigration Status and/or
Employment History [DE 35] filed by the plaintiff, EEOC, on May
25, 2012, is GRANTED IN PART and DENIED IN PART consistent with
this order.
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ENTERED this 1st day of August, 2012
s/ ANDREW P. RODOVICH
United States Magistrate Judge
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