Crumpley v. Associated Wholesale Grocers, Inc. et al
MEMORANDUM AND ORDER granting in part and denying in part 74 Motion to Compel. See Order for details. Signed by Magistrate Judge Gerald L. Rushfelt on 4/28/17. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 16-2298-DDC-GLR
ASSOCIATED WHOLESALE GROCERS,
INC., et al.,
MEMORANDUM AND ORDER
Plaintiff filed this action for alleged disability discrimination and retaliation under the
Americans with Disabilities Act, as amended, 42 U.S.C. § 12111 et seq. (“ADA”). He alleges
that Defendant Associated Wholesale Grocers, Inc. (“AWG”) and Defendant Clarence M. Kelley
& Associates, Inc. were both his employers, and that both unlawfully discriminated and
retaliated against him. The matter before the Court is Plaintiff’s Motion to Compel Discovery
(ECF 74). The motion is directed only against Defendant AWG. Plaintiff thereby seeks an order
to compel responses from AWG to Interrogatory Nos. 6 and 11 and production of documents to
Request Nos. 31 and 32. As detailed below, the Court grants in part and denies in part the
A. Interrogatory No. 6
Plaintiff requests the following information:
6. Has Defendant been a party to any lawsuits, investigations or
been involved in any litigation or complaints filed with any
governmental agencies within the last five (5) years where there
were allegations of discrimination based upon disability, failure to
provide reasonable accommodations, retaliation for exercising a
protected right or claims of discrimination, or alleged violations of
the [Family Medical Leave Act] based upon any state or federal
discrimination law? If so, please:
a. State the following for each lawsuit or litigation:
i) The federal or state court or agency in which it was filed;
ii) The style and case number;
iii) The city, county, and state where each lawsuit or
complaint was filed;
iv) The date on which it was filed;
vi) [sic] Whether each lawsuit, litigation or complaint is
currently pending, is scheduled for trial or has been
vii) How the lawsuit, litigation or complaint was resolved.
(ECF 74-2 at 4-5.)
Defendant objects to this Interrogatory on the grounds that it is
overly broad and unduly burdensome as it is not reasonably limited
as to geographic scope or to individuals similarly situated to
Plaintiff. In addition it seeks information regarding the allegations
of FMLA violations which is information outside the scope of the
allegations in the current lawsuit. Consequently, the Interrogatory
is not proportional to the needs of the case. Defendant further
objects to this Interrogatory on the grounds that it seeks
information entirely irrelevant to Plaintiff’s claims and the
allegations contained in Plaintiff’s First Amended Complaint.
Defendant also objects to this Interrogatory to the extent that it
seeks personal and confidential information of individuals not
party to this litigation, including confidential employment-related
and medical information.
(Id. at 5.)
Plaintiff states that he narrowed the information originally sought and is now only
seeking unproduced information relating to the Family and Medical Leave Act (“FMLA”) for
AWG’s Kansas City, Kansas location. Indeed, AWG produced information pertaining to
litigation relating to other claims under the ADA. It argues that discovery regarding other forms
of discrimination is irrelevant and not generally permitted. For instance, Plaintiff’s claim in this
case involves the Americans with Disabilities Act (“ADA”); whereas the discovery sought
involves AWG’s litigation of claims involving the FMLA.
Generally, “a request for discovery should be considered relevant if there is ‘any
possibility’ that the information sought may be relevant to the claim or defense of any party.”1
“When the discovery sought appears relevant, the party resisting the discovery has the burden to
establish the lack of relevance by demonstrating that the requested discovery (1) does not come
within the scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal
relevance that the potential harm occasioned by discovery would outweigh the ordinary
presumption in favor of broad discovery.”2 When relevancy is not readily apparent, however,
the party seeking discovery has the burden of showing the relevancy of the discovery request.3
Plaintiff argues that he seeks relevant information, because evidence of complaints of
discrimination or retaliation by other employees due to their medical conditions may be
probative of AWG’s discriminatory or retaliatory intent—and thus a jury could infer from such
information that AWG acted with discriminatory or retaliatory intent when it terminated
Plaintiff. The Court agrees and finds this establishes that relevancy is apparent. Thus, AWG
bears the burden of showing irrelevance or, in the case of marginally relevant discovery,
potential harm occasioned by discovery would outweigh the ordinary presumption in favor of
Despite AWG’s arguments and authorities to the contrary, the Court is persuaded that
discrimination in the form of the denial of such leave, or in the form of retaliation for taking such
Sheldon v. Vermonty, 204 F.R.D. 679, 689-90 (D. Kan. 2001); see also Fed. R. Civ. P. 26(b)(1).
Gen. Elec. Capital Corp. v. Lear Corp., 215 F.R.D. 637, 640 (D. Kan. 2003).
Pulsecard, Inc. v. Discover Card Servs., 168 F.R.D. 295, 309 (D. Kan. 1996) (citation omitted).
leave, can constitute discrimination under both the FMLA and the ADA.4 While AWG is correct
that the FMLA and ADA create different rights, the Court is not convinced this precludes
discovery of evidence of one when only the other is alleged. This is especially true where there
is significant interplay between the two causes of action, as evidenced by 29 C.F.R. § 825.702.
Indeed, the Court might hold differently, if Plaintiff were seeking discovery about other types of
discrimination, as he did before narrowing his request.
Defendant has not supported its contention that the interrogatory is unduly burdensome.
Accordingly, the Court finds the request is not unduly burdensome, particularly as to Plaintiff’s
narrowed scope. The Court thus limits this holding to require the discovery only as to
information within the narrowed scope Plaintiff has described, i.e. the FMLA and as to AWG’s
Kansas City, Kansas, location. The Court thus overrules the objection to Interrogatory No. 6,
and directs AWG to produce the discovery as requested, limited to the FMLA and to AWG’s
Kansas City, Kansas, location(s).
B. Interrogatory No. 11
Plaintiff requests the following information in his eleventh interrogatory:
Please identify all available job positions Defendant has had in the
previous five years at its Kansas City, KS location. For each,
a) Name of available position
b) When did Defendant fill available job positions
c) With whom did Defendant fill the available job positions
d) Did Defendant advertise to fill the available job
positions, and if so, in what manner?
(ECF 74-2 at 7.)
See 29 C.F.R. § 825.702(c)(2); see also Capps v. Mondelez Glob., LLC, 847 F.3d 144, 156 (3d Cir. 2017)
(“We recognize that a request for FMLA leave may qualify, under certain circumstances, as a request for a
reasonable accommodation under the ADA, see 29 C.F.R. § 825.702(c)(2) . . . .”).
Defendant objects to this Interrogatory on the ground that it is
overbroad and unduly burdensome in that it is not reasonably
limited as to positions for which Plaintiff applied and/or was
qualified, and, therefore, is not proportional to the needs to the
case. Subject to and without waiving this objection, Defendant
states that it has only hired two non-supervisory EMT/Security
Guards at its Kansas City Kansas location between 2014 and the
present. The posting used for both of these positions will be
Plaintiff states that in discussions with AWG’s counsel, he attempted to limit this
interrogatory to the positions for which Plaintiff was qualified. He argues the information is
relevant in two primary ways. First, because Plaintiff alleges a joint-employer theory, whether
AWG was Plaintiff’s employer under the law is an unresolved issue. This means that the
requested discovery may demonstrate AWG’s role in regard to Plaintiff’s employment. Second,
Plaintiff believes one of AWG’s future arguments may be that Plaintiff was not qualified for the
job from which he was terminated. Because the ADA has a reasonable accommodation element,
Plaintiff argues he should be able to discover what other job positions were open in which he
could have been placed as a reasonable accommodation.
AWG argues the interrogatory is overly broad, speculative, and irrelevant. For instance,
AWG suggests that information regarding open positions that Plaintiff was “qualified for” during
the past five years is irrelevant, because Plaintiff never indicated any interest in another position.
AWG argues that it had no duty to reasonably accommodate Plaintiff, if it was not his employer.
AWG is also unsure how it would determine in hindsight whether Plaintiff was “qualified” for a
particular position, given that AWG allegedly never evaluated Plaintiff’s resume or application,
nor did anyone interview him for the security guard position he ultimately obtained. AWG also
argues the request is not proportional to the needs of the case because many of the jobs that may
have been open during the five-year period were governed by a bidding process under the terms
of a collective bargaining agreement. Finally, AWG argues the temporal scope of the
interrogatory is overbroad in that Plaintiff only worked at AWG’s facility from March 2014 to
August 2014. Thus AWG contends the only open positions that are relevant to this case were
those open during the summer and fall of 2014.
The Court finds that AWG’s production of all non-supervisory EMT/Security Guard
positions available at its Kansas City facility between 2014 and the present adequately responds
to this interrogatory. AWG is correct that a request for information as to all available job
positions is overly broad and irrelevant. Plaintiff applied for and was hired for a security
position. That a florist position, for example, may have been available is not relevant here.
C. Requests for Production 31 & 32
Plaintiff requests the following information in his requests for production:
31. All policies/procedures to which Plaintiff was required to
follow while employed by AWG.
Plaintiff was employed by Kelley and not by AWG. AWG
understands from documents produced during discovery that
Plaintiff agreed to follow a number of policies and procedures of
co-Defendant Kelley and signed off on acknowledgment forms of
Kelley to this effect. Kelley, and not AWG, would be in
possession of these policies/procedures to the extent they exist in
writing. During the time he was onsite at AWG, it was expected
that Plaintiff would abide by the post orders in effect at the time.
Those post orders have previously been produced. In addition,
AWG notes that during discovery co-defendant Kelley has
produced certain email correspondence between Kelley employees
and Plaintiff (as well as to other Kelley employees) which could be
deemed responsive to this request.
Plaintiff requests the following information in request 32:
32. All disciplinary policies utilized by Defendant at Defendant’s
Kansas City, KS location from March 2014-present.
Defendant objects to this Request on the grounds that it seeks
documents entirely unrelated to Plaintiff’s claims as Plaintiff was
employed by co-Defendant Kelley, not AWG. Pursuant to the
contract between AWG and Kelley, Kelley was solely responsible
for directing and supervising Plaintiff, and, from documents
produced during discovery, AWG understands that Plaintiff agreed
to follow a number of policies and procedures of co-Defendant
Kelley, signing off on acknowledgement forms of Kelley to this
AWG asserts Plaintiff was not its employee and thus never subjected to its policies. The Court
notes that this is a valid objection to the request, as written. Rather than requiring Plaintiff to
reword his request, the Court orders production because the employment relationship between
Plaintiff and AWG remains a live issue in this case. But the Court makes no findings at this
point as to whether any employer-employee relationship ever existed between Plaintiff and
AWG. His request is otherwise relevant and proportional to the needs of the case. If AWG is
found not to be Plaintiff’s employer, the discovery of these documents will not prejudice it. It
may be relevant, however, if AWG is found to have been Plaintiff’s employer—joint or
otherwise. The Agreed Protective Order (ECF 32) also avoids any potential prejudice.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to Compel
Discovery (ECF 74) is granted in part and denied in part. With respect to Interrogatory 11 and
Requests for Production 31 and 32, Plaintiff’s request is granted. AWG is directed to produce to
Plaintiff the discovery as discussed herein on or before May 12, 2017. With respect to
Interrogatory 12, Plaintiff’s request is denied.
Dated April 28, 2017, at Kansas City, Kansas.
S/ Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge
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