Debord v. Mercy Health System of Kansas, Inc. et al
Filing
137
MEMORANDUM AND ORDER denying 111 Defendants' Motion to Compel; granting 113 Defendants' Motion to Continue Pretrial Conference; denying 119 Defendants' Motion for Extension of Time; granting 120 Defendant Weaver's Motion to amend. Defendant Weaver shall file his amended counterclaim on or before 8/15/2011. See order for details. Signed by Magistrate Judge Karen M. Humphreys on 8/8/2011. (sj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SARA C. DEBORD,
Plaintiff,
v.
MERCY HEALTH SYSTEM OF
KANSAS, INC. and
LEONARD WEAVER,
Defendants.
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Case No. 10-4055-WEB
MEMORANDUM AND ORDER
This employment discrimination lawsuit is before the court on the following motions:
1. Defendants’ Motion to Compel Discovery (Doc. 111);
2. Defendants’ Motion to Continue Pretrial Conference (Doc. 113);
3. Defendants’ Motion for an Extension of Time to Complete Discovery (Doc.
119); and
4. Defendant Weaver’s Motion for Leave to Amend (Doc. 120).
The rulings are set forth below.
Background
Defendant Mercy Health Systems of Kansas (“Mercy”) employed Sara Debord as a
nuclear medicine/radiologic technician from 2004 to 2009. Highly summarized, plaintiff
alleges that she was subjected to unwelcome touching and sexually inappropriate comments
from her supervisor, Leonard Weaver. On July 6, 2009, Weaver approached plaintiff in her
work area and wrapped his arms around her in an attempt to give her a hug. Plaintiff posted
a comment on her Facebook page that same day, stating that Weaver needed to “keep his
creepy hands off” me. Weaver learned about this Facebook comment and complained to
Mercy’s human resource department. When questioned by human resources about the
Facebook posting, plaintiff provided Mercy with additional comments concerning Weaver’s
inappropriate physical contact with her and other female employees. Mercy suspended
plaintiff and five days later terminated her employment.
Plaintiff alleges sexual
discrimination and retaliation in violation of Title VII against Mercy and state law claims of
assault and battery against Weaver.
Mercy denies that it engaged in sexual discrimination or retaliation and asserts that
plaintiff was terminated on July 13, 2009 for disruptive behavior and dishonesty.
Specifically, Mercy alleges that plaintiff’s Facebook posting on July 6 falsely accused
Weaver of submitting improper time records. Weaver denies plaintiff’s allegations of
inappropriate or unwelcome physical contact and asserts a counterclaim for “defamation.”1
The defamation counterclaim is based on plaintiff’s accusation that Weaver improperly
increased “favorite” employee paychecks by modifying time-keeping records of the hours
1
Weaver admits that “he has demonstrated, without objection, that his hands were
cold by bringing them into contact with the forearms of male and female employees,
including plaintiff.” (Doc. 12, paragraph 14).
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worked by his employees.
Motion to Compel (Doc. 111)
Defendants move to compel plaintiff to produce documents responsive to Production
Request Nos. 1, 2, 3, and 5.2 As explained in greater detail below, the motion shall be
DENIED.
Production Request No. 1
Request No. 1 seeks production of “all documents that reflect, constitute, relate, or
refer to your Facebook status and any all comments thereto on July 15, 2009 and September
16, 2009.” Specifically, defendants seek production of Facebook postings that plaintiff sent
to former coworkers in the radiology department “pertaining to infidelous [sic] behavior of
their respective love interests.” (Doc. 111, p. 2). Plaintiff opposes the motion, arguing that
the requested information is not relevant. The court agrees.3 Plaintiff was terminated on July
13, 2009 for disruptive behavior and subsequently sent Facebook comments about infidelity
and affairs to her former coworkers on July 15 and September 16, 2009. Regardless of
2
Mercy’s motion also lists Production Request No. 6 as disputed. (Doc. 111, p. 1).
The court assumes that the reference to Production Request No. 6 was a drafting error
because there is no further mention of Request No. 6 in the parties’ briefs.
3
Mercy’s legal arguments concerning relevance are based on older legal authority
which discuss former versions of Fed. R. Civ. P. 26 and the scope of discovery. Fed. R.
Civ. P. 26(b) was amended in 2000 and refined the scope of discovery.
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whether the July 15 and September 16 comments may have upset certain former coworkers,
the Facebook postings could not have provided the basis for terminating plaintiff on July 13.4
Accordingly, defendants’ request to compel Production Request No. 1 shall be denied.
Production Request No. 2
Closely related to Request No. 1, Request No. 2 seeks all documents that relate “to
correspondence between you and Lisa Warner (aka Lisa Smith) from July 2009 to September
2009 including but not limited to Facebook messages acknowledged by you in your
deposition that relate or refer to Danny Bernd, Lisa’s relationship with Danny Bernd, or any
affirmative allegations or defenses raised in the pleadings.” (Doc. 111, p. 3). As discussed
above, plaintiff was terminated on July 13 and her communications to Lisa Warner after that
date could not be the basis for her termination. Mercy’s motion to compel Production
Request No. 2 shall also be denied.
Production Request No. 3
Request No. 3 seeks all documents in any form to or from six named individuals and
any current or former Mercy employees between July 1, 2009 and September 30, 2009
concerning (1) Mercy, (2) any former or current Mercy employee, (3) sexual harassment,
4
Plaintiff previously produced Facebook posts that “relate to any event alleged in
[plaintiff’s] complaint.” (Doc. 87). Gossip after plaintiff’s termination about whether
someone’s spouse was “cheating” is too remote in time from the allegations in the
complaint to be relevant.
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and/or unwanted or unwelcome touching or comments. Plaintiff contends that she has
produced the requested documents and defendants present no credible or persuasive evidence
that plaintiff’s contention is erroneous. Under the circumstances, defendants’ motion to
compel Request No. 3 shall be denied.
Production Request No. 5
Plaintiff sent a September 16, 2009 email to Kelli Sims “concerning ‘a guy’ and
plaintiff’s belief that he liked her.” Request No. 5 seeks all email messages between plaintiff
“and the ‘guy’ which led you to believe that he liked you and your responses thereto.”
Plaintiff opposes the motion to compel based on relevance, vagueness and invasion of
privacy. Defendants justify their discovery request by arguing that this information is
relevant to plaintiff’s “reputation, sexual proclivities and credibility.”
The motion to compel Request No. 5 is summarily denied. Defendants fail to present
any cogent explanation why plaintiff’s relationship with an unnamed man two months after
her termination has any relevance to this case. Moreover, the request appears designed to
embarrass plaintiff and, if so, is an abuse of the discovery process. The motion to compel
Request No. 5 is denied.
IT IS THEREFORE ORDERED that defendants’ motion to compel (Doc. 111) is
DENIED.
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Defendants’ Motion to Continue (Doc. 113)
Defendants move to continue the pretrial conference and to reset the deadlines for the
filing of dispositive motions until the pending motions in the case are resolved. The motion
is GRANTED and revised deadlines will be established in a separate order.
Defendants’ Motion for an Extension of Time (Doc. 119)
The Scheduling Order established a March 31, 2011 deadline for the completion of
discovery. (Doc. 39). Defendants move to reopen discovery, arguing that they learned from
depositions on March 23 and 24 that plaintiff did not produce all of her Facebook comments
related to this case in response to earlier discovery requests. The discovery relief requested
includes: (1) issuance of a Rule 45 subpoena to Facebook to obtain all documents from
plaintiff’s Facebook account, (2) service of a Rule 34 production request to inspect plaintiff’s
Facebook account “for a historical download,” and (3) a court order requiring plaintiff’s
execution of a “consent and authorization” for Facebook information. Defendants also
propose that the Facebook information be delivered to an independent third party for a
determination of whether additional responsive documents are contained within the materials
and the related costs would be shared equally by the parties. Plaintiff opposes the motion
and, for the reasons set forth below, the motion shall be DENIED.
The first snippet of deposition testimony proffered by defendants in support of their
motion relates to plaintiff’s March 23, 2009 responses to a series of questions:
Q.
When’s the last time that you or anybody on your behalf that you
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know of has contacted Ms. Riley, communicated with Ms. Riley?5
A.
Regarding this case, or just –
Q.
This matter, um-hum.
A.
Pardon?
Q.
Yes.
A.
Never. I mean, I sent a message to her maybe three, four, five,
six months after I was fired saying that I didn’t work at Mercy
anymore, that I was fired, but that was it.
Q.
Did she respond?
A.
She said I can’t believe you were fired.
Q.
And you sent her a text message?
A.
No, I believe that was a Facebook message.
Q.
Did you tell her why you were fired?
A.
I think I did, but I’m not positive.
Q.
What do you recall telling her?
A.
It’s the same thing I told everyone, that I complained of sexual
harassment and I was fired.
The second snippet of deposition testimony came from Heather Boss on March 24, 2009.
Ms. Boss testified that she sent a Facebook message to plaintiff “six or eight months ago”
expressing surprise that this lawsuit was listed in a Florida magazine. Defendants contend
5
Ms. Riley apparently was a student at Mercy during some unspecified period of
time.
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that an extension of time to conduct “limited” discovery of the Facebook information is
warranted because of plaintiff’s “pattern of dishonesty.”
The court is not persuaded that defendants have established good cause for extending
the discovery deadline. First, the two examples of deposition testimony cited by defendants
are benign and do not establish a “pattern of dishonesty.” More importantly, “the burden or
expense of the proposed discovery outweighs its likely benefit, considering the needs of the
case.” Fed. R. Civ. P. 26(b)(2)(C). As noted above, this case is relatively straightforward:
plaintiff contends that Mr. Weaver engaged in inappropriate touching and comments and that
she was terminated after complaining about his misconduct. Mr. Weaver and Mercy concede
that he frequently touched subordinate employees but that (1) the contact was not of a sexual
nature and (2) his subordinates did not object to his physical contact or comments. Mercy
also contends that plaintiff was terminated for (1) “disruption” and (2) alleging that Weaver
allowed his favorite employees to be overpaid. The contentions concerning the factual
circumstances leading up to plaintiff’s termination are well defined and a jury will ultimately
be asked to determine whether Mr. Weaver’s physical contact and comments to subordinates
amounted to sexual harassment and whether Mercy retaliated after plaintiff expressed
complaints.
Defendants’ proposed discovery of plaintiff’s Facebook account focuses on the period
of time following her termination and extending to the present. It would include production
of significant personal information which has nothing to do with this case. The court is
simply not persuaded that the benefits of the proposed discovery outweigh the associated
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burdens and expenses, given the needs of the case. Accordingly, defendants’ motion shall
be denied.
IT IS THEREFORE ORDERED that defendants motion “for an extension of time”
(Doc. 119) is DENIED.
Defendant Weaver’s Motion to Amend (Doc. 120)
Defendant Weaver moves to amend his counterclaim to (1) add new defamatory acts
and (2) streamline the existing claims to conform to the evidence that was adduced prior to
the close of discovery. Plaintiff does not object to Weaver amending his counterclaim to
“streamline” the existing issues in the case but does object to adding “new claims.” For the
reasons set forth below, Weaver’s motion shall be granted.
The standard for permitting a party to amend his pleading is well established. Without
an opposing party's consent, a party may amend his pleading only by leave of the court. Fed.
R. Civ. P. 15(a). Although such leave to amend “shall be freely given when justice so
requires,” whether to grant leave is within the court's discretion. Panis v. Mission Hills
Bank, 60 F.3d 1486, 1494 (10th Cir. 1995)(citing Woolsey v. Marion Labs., Inc., 934 F. 2d
1452, 1462 (10th Cir. 1991)). In exercising its discretion, the court must be “mindful of the
spirit of the federal rules of civil procedure to encourage decisions on the merits rather than
on mere technicalities.” Koch v. Koch Industries, 127 F.R.D. 206, 209 (D. Kan. 1989). The
court considers a number of factors in deciding whether to allow an amendment, including
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untimeliness, prejudice to the other party, bad faith, and futility of amendment. Hom v.
Squire, 81 F.3d 969, 973 (10th Cir. 1996).
The focus of plaintiffs’ objections to the motion to amend is Weaver’s proposal to add
two “new” allegations of defamation to his counterclaim. Specifically, Weaver seeks to add
allegations that plaintiff defamed him (1) on July 8, 2009 by telling Heather Boss, a former
co-worker who reported to Mr. Weaver, that Weaver had destroyed certain work records, and
(2) in 2010 when plaintiff told Melissa Stewart, another former coworker, that Weaver took
the callback logs from the Radiology Department to hide the fact that he had been adding
money to plaintiff’s paycheck.
Plaintiff contends the motion to amend is untimely because (1) the scheduling order
established an October 5, 2010 deadline to amend the pleadings and (2) Weaver was not
diligent in conducting discovery and amending his complaint. Weaver counters that he did
not discover the two new acts of defamation until March 24, 2011 when he deposed Stewart
and Boss. Weaver also argues that deferring the deposition of the two witnesses until March
24 was reasonable because the parties had scheduled mediation on March 2, 2011 and, had
a settlement been reached, the depositions of the two witnesses would have been
unnecessary.
Under the circumstances, Weaver’s decision to wait until after the scheduled
mediation to depose Stewart and Boss was reasonable given the parties’ scheduled mediation
on March 2, 2011. More importantly, the proposed “new” allegations parallel the allegations
in the original counterclaim and provide more detail.
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Weaver’s original counterclaim
alleged that plaintiff falsely and maliciously defamed him on July 8 by telling Tena Walsh
that Weaver took the call back records “to get rid of them.” (Doc. 28, paragraphs 4, 5, 6,
and &7).6 The next paragraph then alleges that the defamatory statements were
published to plaintiff’s friends and coworkers, many of whom worked
directly under Mr. Weaver’s supervision, and then repeated and
published to other employees of Mercy Hospital in Independence Kansas
and others in Mr. Weaver’s community.
(Doc. 28, paragraph 8)(emphasis added). The proposed amended counterclaim clarifies the
“who” and “when.” Given the language in the original counterclaim, plaintiff is not
prejudiced by the amendment which provides more specificity. Because the proposed
amendment is neither untimely nor prejudicial, Weaver’s motion shall be granted.
IT IS THEREFORE ORDERED that defendant Weaver’s motion to amend (Doc.
120) is GRANTED. Weaver shall file his amended counterclaim on or before August 15,
2011.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 8th day of August 2011.
S/ Karen M. Humphreys
KAREN M. HUMPHREYS
United States Magistrate Judge
6
Weaver contends that the records were in fact taken by a hospital supervisor who
was conducting an investigation concerning plaintiff’s allegations of payroll misconduct.
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