SANCHEZ v. HELMER, INC.

Filing 34

ORDER on Discovery Dispute re 31 MOTION for Discovery Conference. The court finds that Ms. Sanchez's Interrogatory No. 18 and Document Request No. 38, as further modified by Ms. Sanchez in their temporal scope and in their application only to persons within the sales and marketing department, seek relevant information, and that there is no further basis for limiting the requests. Helmer's objections are overruled. Helmer must respond to these discovery requests, as modified by Ms. Sanchez, within twenty-one (21) days of the date of this order. Signed by Magistrate Judge Debra McVicker Lynch on 9/21/2011. (LH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ERIKA SANCHEZ,
Plaintiff,
v.
HELMER, INC.,
Defendant.

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) CASE NO. 1:10-cv-01578-WTL-DML
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Order on Discovery Dispute
On September 16, 2011, the court held a discovery conference with the parties and heard
oral argument regarding a discovery dispute involving two discovery requests the parties have
been unable to resolve informally. (See Dkt. 31). The court took the matter under advisement
and now issues its ruling.
Plaintiff Erika Sanchez claims that defendant Helmer, Inc., her former employer,
unlawfully discriminated against her because of her pregnancy in violation of Title VII and its
Pregnancy Discrimination Act provisions, 42 U.S.C. § 2000e(k). Ms. Sanchez was a salesperson
for Helmer and for about the last four years of her employment had “teleworked” from her home
in Bloomington, Indiana. In September 2009, Helmer told Ms. Sanchez that she no longer could
work remotely from her home and must work from Helmer’s offices in Noblesville, Indiana.
Ms. Sanchez claims that Helmer changed her work requirements because she was pregnant.
The discovery requests at issue are Interrogatory No. 18 and Document Request No. 38.
Interrogatory 18 seeks the identity of employees “who performed all or part of his or her duties
outside of [Helmer’s] office at any time from January 1, 2006 to the present,” a description of the
employees’ duties, and the percentage of time spent outside of Helmer’s offices performing each

of his or her duties. Ms. Sanchez’s Document Request No. 38 seeks all documents relating to
“each former or current employee who worked remotely or outside of [Helmer’s] office during
the period from January 1, 2006 to the present.”1 Helmer objected to these requests as overly
broad and unduly burdensome, and because they are “not reasonably calculated to lead to the
discovery of admissible evidence in that [the request] is not limited to the Sales & Marketing
Department.” To address Helmer’s objections, Ms. Sanchez limited the temporal scope of her
request to January 1, 2009, and the pool of employees to only those in Helmer’s Sales &
Marketing Department. In response, Helmer stated that its objection that the requests were not
limited to the Sales & Marketing Department was intended as an example of the way in which
the requests were overbroad, unduly burdensome, and not relevant. Thus, in Helmer’s view, Ms.
Sanchez’s offer to limit the scope to the Sales & Marketing Department did not cure the
problems.2
The two discovery requests, relating to the discovery of information regarding other
Helmer personnel, and their personnel files, are designed to lead to the discovery of admissible
evidence regarding Helmer’s treatment of so-called comparator employees. One of the methods
by which employment discrimination may be proved is an “indirect method” under which an
employer’s treatment of the plaintiff is compared to its treatment of employees similarly situated
to the plaintiff in an effort to show that differences in treatment reasonably may be attributed to a
trait that the employer may not lawfully consider—like pregnancy, or race, or sex, or national

1

According to Ms. Sanchez, this discovery request seeks these other employees’ personnel

files.
2

It takes quite a stretch to read Helmer’s objections in the way Helmer now says it
intended. But the court will reach the merits of the parties’ current discovery disputes rather than
finding that Helmer waived its current objections because they were not timely stated with
specificity. See Rule 33(b)(4).
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origin. See Eaton v. Indiana Dep’t of Corrections, 2011 WL 3966145 at *4 (7th Cir. Sept. 9,
2011).
Helmer argues that the only employees who possibly could be considered similarly
situated to Ms. Sanchez, for purposes of making a valid comparison under the indirect proof
method, are those that had international sales duties like Ms. Sanchez and who performed their
sales duties mostly by contacting customers by telephone, as opposed to making sales calls to the
customers’ places of business. It appears that if the pool of potential comparators is so limited,
then there is not a single comparator to Ms. Sanchez. It may be that no other employee is closely
enough situated to Ms. Sanchez that a valid comparator analysis can be performed, but Ms.
Sanchez is entitled to explore the issue in discovery and not take Helmer’s word for it.
The comparator analysis is not to be construed “‘so rigidly or inflexibly that it [becomes]
a useless analytical tool.’” Eaton, 2011 WL 3966145 at *4 (quoting South v. Illinois EPA, 495
F.3d 747, 752 (7th Cir. 2007)). The inquiry “‘simply asks whether there are sufficient
commonalities on the key variables between the plaintiff and the would-be-comparator to allow
the type of comparison that, taken together with the other prima facie evidence, would allow a
jury to reach an inference of discrimination.’” Eaton, 2011 WL 3966145 at *4 (quoting
Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007)). Ms. Sanchez’s limiting her
discovery requests to employees in sales and marketing (whether domestic or international)
reasonably limits the pool of employees to those having similar-enough employment
responsibilities—at least for discovery purposes in this case. Although Ms. Sanchez may not
share the same supervisors as others in Helmer’s sales and marketing department, and other sales
and marketing employees may not have worked primarily with international (as opposed to
domestic) sales, or have made sales calls primarily by telephone or computer as opposed to face-

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to-face visits, there has been no showing that these characteristics were material to Helmer’s
employment decision that Ms. Sanchez must perform her duties in-house, as opposed to
remotely. See Eaton, 2011 WL 3966145 at *7 (the “material respects” in which the plaintiff
must be similar to comparators are those factors that the employer considered when it made the
personnel decision at issue).
Helmer also has not demonstrated that the pool of persons that comprise the sales and
marketing department is so large that the discovery requests are otherwise overly burdensome, a
burden it bore. Graham v. Casey’s General Store, 206 F.R.D. 251, 254 (S.D. Ind. 2002) (party
that objects to discovery request bears burden to show, with specificity, why the discovery
request is improper”).
Conclusion
The court finds that Ms. Sanchez’s Interrogatory No. 18 and Document Request No. 38,
as further modified by Ms. Sanchez in their temporal scope and in their application only to
persons within the sales and marketing department, seek relevant information, and that there is
no further basis for limiting the requests. Helmer’s objections are overruled. Helmer must
respond to these discovery requests, as modified by Ms. Sanchez, within twenty-one (21) days of
the date of this order.
So ORDERED.
09/21/2011
Date: ____________________

____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

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Distribution:
John H. Haskin
HASKIN & LARUE
[e-mail]
Paul Anthony Logan
HASKIN & LARUE
[e-mail]
Robert Anthony Prather
BARNES & THORNBURG LLP
[e-mail]
Peter Thomas Tschanz
BARNES & THORNBURG LLP
[e-mail]

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