Equal Employment Opportunity Commission v. Fair Oaks Dairy Farms LLC
Filing
72
OPINION AND ORDER: Court DENIES 48 Motion to Reconsider Order, and GRANTS 54 Motion to Compel Fair Oaks Dairy Products' Complete Response to Written Discovery. Signed by Magistrate Judge Andrew P Rodovich on 10/29/2012. (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 Reconsider
Order [DE 48] filed by the plaintiff, the Equal Employment
Opportunity Commission, on August 10, 2012, and the Motion to
Compel Fair Oaks Dairy Products’ Complete Response to Written
Discovery [DE 54] filed by the EEOC on August 20, 2012.
For the
reasons set forth below, the Motion to Reconsider Order [DE 48]
is DENIED, and the Motion to Compel [DE 54] is GRANTED.
Background
This case arises from a charge of discrimination Martha
Marquez filed with the EEOC, alleging she was sexually harassed
by her supervisor, David William Fortenberry, while employed by
the defendants, Fair Oaks Dairy Farms and Fair Oaks Dairy Products.
After investigating Marquez’s allegations, the EEOC found
that the evidence substantiated her claim and attempted to
resolve the matter through conciliation.
When conciliation
failed, the EEOC filed a complaint on July 22, 2011, against Fair
Oaks Dairy Farms, alleging sexual harassment in violation of
Title VII of the Civil Rights Act of 1964.
On May 25, 2012, the EEOC filed a motion for a protective
order regarding the discovery Dairy Products served upon it,
which requested information concerning Marquez’s immigration
status and other employment-related information.
The court
granted the EEOC’s motion with respect to evidence that would
directly reveal Marquez’s immigration status, including her visa,
passport, birth certificate, certain employment information, and
her state and local tax returns, and denied the motion with
regard to Marquez’s resume, educational diplomas, transcripts,
and attendance records.
The court explained that Marquez’s
resume, diplomas, transcripts and attendance records were relative to Dairy Products’ after acquired evidence defense.
Al-
though the EEOC argued that the after acquired evidence defense
was inapplicable because it only was seeking damages for emotional pain and suffering, the court noted that its complaint
requested "compensation for past pecuniary losses resulting from
unlawful employment practices".
Additionally, the court ex-
plained that the information would bear on whether Marquez
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mitigated her damages and might substantiate Dairy Products’
reason for terminating her employment.
The EEOC now asks the court to reconsider its Opinion and
Order, arguing that the court overlooked that this is not an
action for discriminatory termination and that the EEOC does not
intend to pursue back pay.
Dairy Products opposes this motion.
The EEOC also served a series of discovery requests on Fair
Oaks.
In the first set of interrogatories, the EEOC inquired
about other women who were harassed by Fortenberry because of
their sex, what the defendants knew or should have known concerning Fortenberry’s conduct, and the identity of potential witnesses who may have had relevant information.
The EEOC in-
structed that the temporal scope was January 1, 2005 to the
present.
Fair Oaks responded to all of the interrogatories
except the interrogatories that requested information concerning
the identification of employees other than those Fair Oaks
previously identified as having relevant information, complaining
that the discovery requests were unduly burdensome, overly broad,
not reasonably calculated to lead to the discovery of admissible
evidence, and improperly limited the temporal scope of the
requested information.
The parties discussed the discovery
requests, and the EEOC served a second set of interrogatories on
July 3, 2012.
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The EEOC’s first request in the July 3 interrogatories asked
for the information originally sought in Interrogatory Nos. 11
and 14 of its first set, as modified by the parties' teleconference. The EEOC’s new request sought "personnel, human resources,
or operation-related documents that show any such employee’s
name, last known address and telephone number, supervisor, social
security number and/or date of birth," for all employees who
worked in the same facility as Fortenberry from the period of
January 1, 2005, through the date of Fortenberry’s termination.
Fair Oaks has objected, arguing that it was unreasonable to
request confidential personnel information for every employee
that Fair Oaks has had since 2005 who worked in the same facility
as Fortenberry and that the request was over broad, unduly
burdensome, not likely to lead to the discovery of admissible
evidence, and duplicative of other discovery materials already in
the EEOC’s possession.
The EEOC has moved to compel a response
to this request.
Discussion
Although they are frequently filed, the Court of Appeals has
described a motion for reconsideration as "a motion that, strictly speaking, does not exist under the Federal Rules of Civil
Procedure."
Hope v. United States, 43 F.3d 1140, 1142 n.2 (7th
Cir. 1994).
See also Talano v. Northwestern Medical Faculty
Foundation, Inc., 273 F.3d 757, 760 n.1 (7th Cir. 2001).
4
This
type of motion "is a request that the [Court] reexamine its
decision in light of additional legal arguments, a change of law,
or perhaps an argument or aspect of the case which was overlooked."
Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004)
(internal quotation omitted).
See also United States v. Ligas,
549 F.3d 497, 501 (7th Cir. 2008)("A district court may reconsider a prior decision when there has been a significant change
in the law or facts since the parties presented the issue to the
court, when the court misunderstands a party’s arguments, or when
the court overreaches by deciding an issue not properly before
it.").
In Frietsch v. Refco, Inc., 56 F.3d 825 (7th Cir. 1995),
the Court of Appeals did not question the availability of a
motion to reconsider but stated:
It is not the purpose of allowing motions for
reconsideration to enable a party to complete
presenting his case after the court has ruled
against him. Were such a procedure to be
countenanced, some lawsuits really might
never end, rather than just seeming endless.
56 F.3d at 828
See also Oto v. Metropolitan Life Insurance Company, 224 F.3d
601, 606 (7th Cir. 2000)("A party may not use a motion for reconsideration to introduce new evidence that could have been presented earlier."); Divane v. Krull Electric Company, 194 F.3d
845, 850 (7th Cir. 1999); LB Credit Corporation v. Resolution
Trust Corporation, 49 F.3d 1263, 1267 (7th Cir. 1995).
Ulti-
mately, a motion for reconsideration is an "extraordinary remedy
to be employed sparingly in the interests of finality and conser-
5
vation of scarce judicial resources."
Global View Ltd. Venture
Capital v. Great Central Basin Exploration, 288 F.Supp.2d 482,
483 (S.D.N.Y. 2003)(internal quotation omitted).
The EEOC argues that the court overlooked that the only
cause of action raised is that of sexual harassment and that the
EEOC has made no claim for a discriminatory discharge.
Because
this was the only allegation, the EEOC claims that it does not
intend to seek back pay and maintains that the after acquired
evidence defense and mitigation of damages are irrelevant.
The
court agrees that claims for sexual harassment usually do not
have the same type of economic effect as other types of discrimination arising under Title VII, with the exception of sexual
harassment resulting in constructive discharge.
SRAM Corp., 261 F.3d 651, 660 (7th Cir. 2001).
See Hertzberg v.
Back pay and
front pay would not make the plaintiff whole unless she has
pursued a claim for constructive discharge.
Therefore, back pay
is not an appropriate remedy unless the plaintiff pursues a claim
for constructive discharge.
Hertzberg, 261 F.3d at 660.
Similarly, the after-acquired evidence defense forecloses an
employee’s right to front pay or reinstatement and curtails an
employee’s right to back pay from the date a legally terminable
act was discovered.
McKennon v. Nashville Banner Publishing Co.,
513 U.S. 352, 362, 115 S.Ct. 879, 886, 130 L.Ed.2d 852 (1995).
The after-acquired evidence defense does not prohibit compensatory damages for emotional distress and has no applicability if
the plaintiff is not seeking back pay, front pay, or reinstate6
ment.
See generally McKennon, 513 U.S. at 362, 115 S.Ct. at 886
(explaining that after-acquired evidence defense limits the
employer’s liability for back pay after the time legitimate
legally terminable conduct is discovered and does not bar all
recovery).
The mitigation defense also operates to limit the
damages an employer is liable for.
Hanna v. American Motors
Corp, 724 F.2d 1300, 1307 (7th Cir. 1984).
If a former employee
does not seek new employment or take action to limit the economic
impact of losing her position, the employer is not liable for the
full amount of damages.
Again, the mitigation defense would not
limit compensatory damages arising from emotional distress.
If the EEOC’s complaint was limited to emotional distress
arising from sexual harassment, then back pay, the after-acquired
evidence defense, and mitigation would be irrelevant.
Marquez
would not be entitled to back pay, and the defenses of afteracquired evidence and failure to mitigate damages would be moot.
However, after alleging that Marquez was subjected to sexual
harassment, the EEOC stated that Marquez was deprived of equal
employment opportunities and that her status as an employee was
affected adversely because of her sex.
The EEOC then requested
monetary damages for past pecuniary losses arising from the
unlawful employment practices.
As the court explained in the August 1, 2012 Opinion and
Order, the complaint, on its face, appears to seek back pay for
the change in employment status.
The EEOC counters that it is
limited to seeking damages arising from the emotional distress
7
Marquez suffered because of its representations in its motions to
the court and answers to discovery.
However, the court generally
looks to the pleadings to determine relevancy for purposes of
discovery, and this is precisely what the court did in its August
1, 2012 Opinion and Order.
See Sanyo Laser Products, Inc. v.
Arista Records, Inc., 214 F.R.D. 496, 502 (S.D. Ind. 2003)
(explaining that the pleadings are important to determine the
scope of discovery).
The EEOC has not demonstrated that the
court erred in looking to the pleadings or that there has been a
change in the law or fact warranting a different outcome.
Rather, the EEOC reiterates its argument from its initial motion
and has not pointed to a sufficient reason to warrant reconsideration.
For these reasons, the EEOC’s Motion to Reconsider Order
[DE 48] is DENIED.
Turning now to the EEOC’s motion to compel, 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."
of Civil Procedure 26(b)(1).
Federal Rule
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)).
8
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 seek an order to compel discovery when an
opposing party fails to respond to discovery requests or has
provided evasive or incomplete responses.
Procedure 37(a)(2)(3).
Federal Rule of Civil
The burden "rests upon the objecting
party to show why a particular discovery request is improper."
Gregg v. Local 305 IBEW, 2009 WL 1325103, *8 (N.D. Ind. May 13,
2009)(citing Kodish v. Oakbrook Terrace Fire Protection Dist.,
235 F.R.D. 447, 449-50 (N.D. Ill. 2006)); McGrath v. Everest Nat.
Ins. Co., 2009 WL 1325405, *3 (N.D. Ind. May 13, 2009)(internal
citations omitted); Carlson Restaurants Worldwide, Inc. v. Ham-
mond Professional Cleaning Services, 2009 WL 692224, *5 (N.D.
Ind. March 12, 2009)(internal citations omitted); Cunningham v.
Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009)(citing
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
9
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."
Cunningham, 255 F.R.D. at 478
(citing Burkybile v. Mitsubishi Motors Corp., 2006 WL 2325506, *6
(N.D. Ill. Aug. 2, 2006))(internal quotations and citations
omitted).
Rather, the court, under its broad discretion, consid-
ers "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."
Berning v.
UAW Local 2209, 242 F.R.D. 510, 512 (N.D. Ind. 2007)(examining
Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir.
2002))(internal quotations and citations omitted).
See also Hunt
v. DaVita, Inc., 680 F.3d 775, 780 (7th Cir. 2012)(explaining
that the district court has broad discretion in supervising
discovery).
The EEOC has requested the personnel or human resource
documents that show any employee’s name, address, phone number,
supervisor, social security number, and date of birth, who worked
in the same facility as Fortenberry from January 1, 2005, until
Fortenberry left his employment.
Fair Oaks has objected to the
discovery request as irrelevant, overly burdensome, and duplicative.
Fair Oaks provided the EEOC with a list of employees with
relevant knowledge in its initial disclosures and the contact
information for those employees.
10
Fair Oaks contends that the
EEOC’s request for all its employees’ information is a fishing
expedition because the only employees with relevant information
have been identified.
Moreover, Fair Oaks complains that it does
not maintain the information in a readily producible format and
that producing the information would be burdensome.
Relevancy is to be construed broadly and is intended to
encompass all information that may lead to admissible evidence.
Chavez, 206 F.R.D. at 619.
Past discrimination may be relevant
to show motive and intent as to a past practice.
Although Fair
Oaks contends that it has identified all the employees past and
present who have information relevant to Marquez’s claim, it is
possible that other employees suffered harassment at the hands of
Fortenberry.
Fair Oaks may not be aware of every encounter its
employees, past and present, had with Fortenberry.
Discovery of
the contact information of employees who worked with Fortenberry
may yield information concerning other acts of harassment or may
show motive and intent as to past practices of Fortenberry and
Fair Oaks.
Moreover, the request is limited to the relevant time
and supervisor and is not overly broad.
Fair Oaks has not demon-
strated that the discovery request is so unlikely to yield relevant information that it is outside the scope of discovery.
Fair Oaks also has complained that the information is not
stored in a readily producible format and that it would take
significant time to gather the information. However, Fair Oaks
has provided no insight on the burden it would face gathering the
information.
Fair Oaks has not pointed to a significant number
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of records it would have to comb through, nor has it explained
why the manner in which it has maintained its records would make
it difficult to locate the requested information.
Fair Oaks has
done nothing more than make a boilerplate allegation that the
information would be difficult to gather.
Because of this, Fair
Oaks has failed to satisfy its burden to show that the information sought would be overly burdensome to produce.
_______________
Based on the foregoing, the Motion to Reconsider Order [DE
48] filed by the plaintiff, the Equal Employment Opportunity
Commission, on August 10, 2012, is DENIED, and the Motion to
Compel Fair Oaks Dairy Products' Complete Response to Written
Discovery [DE 54] filed by the EEOC on August 20, 2012, is
GRANTED.
ENTERED this 29th day of October, 2012
s/ ANDREW P. RODOVICH
United States Magistrate Judge
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