EARL v. XEROX BUSINESS SERVICES et al
Filing
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ORDER granting in part and denying in part 47 Motion to Compel. In light of the upcoming settlement conference in the matter, Plaintiff is ORDERED to provide Defendants with the appropriate Authorization to Release Medical Records forms, by hand delivery, no later than 9/29/2014. Additionally, Plaintiff is ORDERED to make full and complete discovery responses, by hand delivery or electronic delivery with telephonic confirmation of receipt, in compliance with the Court's ruling no later than 10/3/2014. Signed by Magistrate Judge Mark J. Dinsmore on 9/26/2014. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRIANNA EARL,
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Plaintiff,
vs.
XEROX BUSINESS SERVICES,
JAYNE RYALL,
TEOLA HORNADAY,
CFA STAFFING,
TERI WITTMAN,
Defendants.
No. 1:13-cv-01847-LJM-MJD
ORDER ON DEFENDANTS’ MOTION TO COMPEL
This matter comes before the Court on Xerox Business Services, Jayne Ryall, Teola
Hornaday, CFA Staffing, and Teri Whittman’s (“Defendants”) Motion to Compel. [Dkt. 47.]
For the following reasons, the Court hereby GRANTS IN PART and DENIES IN PART
Defendants’ motion.
I. Background
Brianna Earl (“Plaintiff”) filed this wrongful termination claim pursuant to Title VII of
the Civil Rights Act (CRA) of 1964, the Americans with Disabilities Act (ADA), 1 and the
Family Medical Leave Act (FMLA). [Dkt. 48 at 1.] Defendants then served Plaintiff with
interrogatories and requests for production, but Defendants were not satisfied with Plaintiff’s
responses and objections to Interrogatories 12 and 13 and Request for Production (RFP) 13. [See
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On August 26, 2014, Plaintiff stipulated to the dismissal of her ADA claim, with prejudice. [Dkt. 68.]
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id. at 1-3.] After conferring first with Plaintiff’s counsel and then the Court in an effort to
resolve their differences, pursuant to Local Rule 37-1, Defendants filed a motion to compel [Dkt.
47], which motion is now before the Court.
II. Discussion
Rule 37 permits a motion to compel a required disclosure upon “evasive or incomplete
disclosure, answer, or response.” Fed. R. Civ. P. 37(a). A required disclosure, as broadly
defined by Rule 26, includes any information that a party may use to support its claims. Fed. R.
Civ. P. 26 (a)(1)(A). “For good cause, the court may order discovery of any matter relevant” to
the issues of the case. Fed. R. Civ. P. 26 (b)(1). “Thus, the scope of discovery should be broad
in order to aid in the search for truth.” Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D.
447, 450 (N.D. Ill. 2006). When a party raises objections to discovery requests, the objecting
party bears the burden of proving that a discovery request is improper. See, e.g., Janssen v.
Howse, 09-CV-3340, 2011 WL 2533809 (C.D. Ill. June 27, 2011); Cunningham v. Smithkline
Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009). Ultimately, this Court has “broad discretion in
discovery matters, [including a] motion to compel discovery.” Packman v. Chicago Tribune Co.,
267 F.3d 628, 646 (7th Cir. 2001).
A. Interrogatory 12
Plaintiff first objects to Defendants’ Interrogatory 12 on the basis that the requested
information “was disclosed in Plaintiff’s FMLA application.” 2 [Dkt. 48 at 2.] When a discovery
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Plaintiff’s response to Interrogatory 12 reads, in its entirety: “Plaintiff objects to this Interrogatory as this
information was disclosed in Plaintiff’s FMLA application and Defendants did not challenge the son’s disability
at the time of approving Plaintiff’s FMLA Application.” [Dkt. 48 at 2 (emphasis added).] The Court finds
Plaintiff’s objection to be ambiguous, as the bold portion and underlined portion could be read to be independent
objections or to be one objection altogether. In an abundance of caution, the Court treats the two clauses as separate
objections and will address them as such.
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request is “unreasonably cumulative,” it is the Court’s duty to limit the extent of discovery. Fed.
R. Civ. P. 26(b)(2)(C). However, discovery is only so cumulative when the requested
information or documents have already been produced during discovery. See, e.g., Whitlow v.
Martin, 259 F.R.D. 349, 355 (C.D. Ill. 2009); CSX Transp., Inc. v. Vela, 2:06-CV-112-RLYWGH, 2007 WL 3334966 (S.D. Ind. Nov. 8, 2007). Here, Plaintiff appears to object on the basis
that the information was disclosed to Defendants in her FMLA application in November of 2012,
not during discovery conducted since she filed her claim a year later. Thus, to the extent that
Plaintiff objects to Defendants’ request on the basis that Interrogatory 12 is unreasonably
cumulative, that objection is OVERRULED.
Additionally, Plaintiff objects to Defendants’ Interrogatory 12 because “Defendants did
not challenge [Plaintiff’s] son’s disability at the time of approving Plaintiff’s FMLA
Application.” [Dkt. 48 at 2.] In their motion to compel, Defendants assert that the Seventh
Circuit, in Darst v. Interstate Brands Corporation, held that “just because the FMLA allows the
employer to get a second opinion, there is no indication under the Act that if the employer does
not, that the employer is subsequently precluded from challenging whether the employee
suffered from a serious health condition.” [Id. at 3 (citing 512 F.3d 903, 911 (7th Cir. 2008)).]
In response, Plaintiff claims that the Seventh Circuit, in Holder v. Illinois Department of
Correction, “affirmed the lower court’s holding that the employer could not re-litigate whether
the employee was eligible for FMLA in the first place.” [Dkt. 52 at 8 (citing 751 F.3d 486, 491
(7th Cir. 2014)).] The parties’ assertions of Seventh Circuit law are diametrically opposed—
only one view can be right.
In January of 2008, the Seventh Circuit considered the issue of whether “the defendants
should be estopped from challenging the sufficiency of his medical Certification because they
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did not do so at the time he submitted it.” Darst, 512 F.3d at 907. Specifically, the plaintiff in
Darst argued that “because the defendants failed to require him to provide a second opinion, they
may not now contest the validity or accuracy of his Certification [of illness].” Id. at 911. On this
issue, the Seventh Circuit notes that, because the FMLA provides that an employer who doubts
the validity of a Certification of illness “may” require the employee to obtain a second medical
opinion, the provision is “permissive, not mandatory.” Id. However, the Seventh Circuit did not
rule on the particular issue “because the FMLA provides no remedy for the possible violation
unless the action interfered with, restrained or denied [the plaintiff’s] exercise of his rights under
the FMLA.” Id. Thus, although dicta seems to indicate that Defendants’ failure to require a
second opinion for Plaintiff’s FMLA Application would not preclude issue on appeal due to the
permissive nature of the language of the provision, Darst is not conclusive on the issue.
Six months later, the Seventh Circuit discussed another plaintiff’s “state-law claim for
promissory estoppel based on his reliance on [the defendant’s] representations regarding his
entitlement to medical leave.” Peters, 533 F.3d at 599. However, in Peters the defendant had
repeatedly promised, in its letter to the plaintiff, twelve weeks of medical leave, arguably
pursuant to either the employee handbook or the FMLA. Id. Accordingly, the Seventh Circuit
noted that “using equitable estoppel to block an employer from asserting a statutory defense to
FMLA liability is not the same as using promissory estoppel to enforce a promise by an
employer to allow 12 weeks of medical leave,” and the panel did not rule on the former because
the leave provisions of the defendant’s employee handbook may have been enforceable under
Indiana law. Id. at 600-01. Again, the Seventh Circuit’s decision in Peters does not decide the
issue here.
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Finally, in May of 2014, the Seventh Circuit ruled on a matter where the defendant made
an attempt “to turn both the trial and now the appeal into one which examined [the plaintiff’s]
eligibility for [FMLA] leave in the first place.” Holder v. Illinois Dep't of Corr., 751 F.3d 486,
493 (7th Cir. 2014). Unfortunately for the defendant in that matter, the district court had already
found that the plaintiff was entitled to FMLA leave on summary judgment, and the Seventh
Circuit did not find any of the defendant’s attempts to side-step the district court’s ruling
convincing. Id. at 493-95. Thus, the panel gave “special deference” to the findings of the
district court and did not revisit the issue of whether the plaintiff was eligible for any kind of
FMLA leave. Id. Because the district court found on summary judgment that the plaintiff had
been entitled to FMLA leave and because issue was not revisited on appeal, the Seventh Circuit’s
opinion in Holder is no more helpful than that in Peters.
Thus, while both parties here vehemently argue that Seventh Circuit law supports their
positions, neither position is clearly supported by any of the three Seventh Circuit cases cited by
the parties. However, it is significant that, although dicta, the Seventh Circuit in Darst cites to
opinions from both the Fourth Circuit and the Eighth Circuit, which each support the assertion
that “because the term ‘may’ is permissive, the plain language of the FMLA does not suggest
that an employer must pursue these procedures or be forever foreclosed from challenging
whether an employee suffered from a serious health condition.” 512 F.3d at 911. The Court will
follow the Seventh Circuit’s breadcrumbs, and finds that Defendants are not precluded from
requesting discovery that may be relevant to a challenge of Plaintiff’s son’s illness simply
because Defendant did not request a second medical opinion before granting Plaintiff
intermittent leave. Accordingly, Plaintiff’s related objection to Interrogatory 12 is
OVERRULED.
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Plaintiff did not raise any other objections to Interrogatory 12. Therefore any other
objections are waived and, as articulated above, all asserted objections to Interrogatory 12 are
hereby OVERRULED.
B. Interrogatory 13
In response to Interrogatory 13, which inquires about any and all restrictions in activity
from which Plaintiff’s son suffers on account of his illness and the relevant dates, Plaintiff
objects to the interrogatory as irrelevant, answering only that her son’s asthma restricts his
breathing, which “is considered a major life activity.” [Dkt. 48 at 2.] In their motion to compel,
Defendants specify that the “[f]undamental question to be decided in this case is whether or not
Ms. Earl’s son was ill when she missed work . . . .” [Id. at 4.] With this question in mind, it
appears to the Court that specific instances of her son’s restricted activity are not relevant to the
fundamental issue of the case and would not lead to the discovery of admissible evidence. While
such interrogatories are commonly relevant to ADA claims, see, e.g., Furnish v. SVI Sys., Inc.,
270 F.3d 445 (7th Cir. 2001), Plaintiff has since stipulated to the dismissal of her ADA claim,
with prejudice [Dkt. 68]. Thus, the Court finds that a response to Interrogatory 13 would not be
relevant to a claim or defense relating to Plaintiff’s remaining claims and thus is no longer
relevant under Rule 26, and Plaintiff’s objection is SUSTAINED.
C. Request for Production 12
Plaintiff first objects to Request for Production (RFP) 12 on the basis that “it calls for
information and/or records that are already in possession of CFA.” [Dkt. 48 at 3.] This
allegation is quite similar to one that was addressed in Lakewood Engineering and
Manufacturing Company v. Lasko Products, Inc., asserting that the requesting party “probably
has these documents in its possession already.” 01 C 7867, 2003 WL 1220254 at *12 (N.D. Ill.
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Mar. 14, 2003). However, in Lakewood the court observed that the assertion “has not been
proven and the documents have not yet been identified as having already been produced” and
ordered that the documents in question be produced. Id. Similarly, in this instance Plaintiff has
made no argument and provided no evidence to support her assertion that Defendants are already
in possession of “[a]ny and all documents concerning the treatment, therapy, consultations,
examinations and hospitalizations of Plaintiff’s son,” and the Court has no reason to believe that
such documents have already been produced in the course of this litigation. [Dkt. 48 at 2.] Thus,
Plaintiff’s objection that Defendants are already in possession of the documents requested in
RFP 12 is OVERRULED.
Additionally, Plaintiff objects to RFP 12 because “[i]t also recalls for [sic] the records to
which CFA previously referred in acknowledging Plaintiff’s [sic] had a serious medical
condition and in approving Plaintiff’s application for intermittent FMLA.” [Dkt. 48 at 3.] This
objection is substantially similar to Plaintiff’s objection to Interrogatory 12, which the Court
previously addressed in Subsection II.A of this order. For the same reasons, Plaintiff’s objection
is, again, OVERRULED.
Finally, although she did not raise the issue as a formal objection in her responses to
Defendants’ discovery requests, Plaintiff argues, in response to Defendants’ motion to compel,
that Defendants’ request for Plaintiff’s son’s medical records is overbroad. [Dkt. 52 at 1.] In
reply, Defendants agreed “to reduce the scope of the request to medical records of her son from
the date she applied for FMLA leave through the termination of her employment.” [Dkt. 53 at
1.] The Court finds this to be a fair limitation that addresses Plaintiff’s concern, and thus
Defendants’ RFP 12 shall be read as follows: “any and all documents concerning the treatment,
therapy, consultations, examinations and hospitalizations of Plaintiff’s son from the date
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Plaintiff applied for FMLA leave through the termination of her employment.” [See Dkt.
48 at 2; 53 at 1.]
Plaintiff did not raise any other objections to Request for Production 12. Therefore any
other objections are waived and, as articulated above, all asserted objections to Request for
Production 12 are hereby OVERRULED.
III. Conclusion
For the aforementioned reasons, the Court hereby GRANTS IN PART and DENIES IN
PART Defendants’ Motion to Compel. [Dkt. 47.] In light of the upcoming settlement
conference in the matter, Plaintiff is ORDERED to provide Defendants with the appropriate
Authorization to Release Medical Records forms, by hand delivery, no later than Monday,
September 29, 2014. Additionally, Plaintiff is ORDERED to make full and complete discovery
responses, by hand delivery or electronic delivery with telephonic confirmation of receipt, in
compliance with the Court’s ruling no later than Friday, October 3, 2014.
Date: 09/26/2014
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Distribution:
Sara R. Blevins
LEWIS & KAPPES
sblevins@lewis-kappes.com
David W. Gray
LEWIS & KAPPES PC
dgray@lewis-kappes.com
Tasha Rebecca Roberts
ROBERTS AND BISHOP
troberts@roberts-bishop.com
Tae K. Sture
STURE LEGAL SERVICES LLC
tae@sturelaw.com
Nicole Seale Adler
THE KULLMAN FIRM
nsa@kullmanlaw.com
Stephen L. Scott
THE KULLMAN FIRM
sls@kullmanlaw.com
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