Kear v. Kohl's Department Stores, Inc.

Filing 128

MEMORANDUM AND ORDER granting 104 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 7/15/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TIFFANY KEAR

)
)
)
Plaintiff,
)
)
vs.
) Case No. 12-cv-1235-JAR-KGG
)
KOHL’S DEPARTMENT STORES, INC., )
)
Defendant.
)
___________________________________ )
MEMORANDUM & ORDER ON
PLAINTIFF’S SECOND MOTION TO COMPEL
This case is before the Court on Plaintiff’s second motion requesting an
Order compelling Defendant to provide supplemental discovery responses. (Doc.
104.) For the reasons set forth below, Plaintiff’s motion is GRANTED under a the
modified geographic scope discussed herein.
BACKGROUND
Plaintiff Tiffany Kear was employed by Defendant Kohl’s Department
Stores, Inc. as an Assistant Store Manager from December 27, 2004, until
September 10, 2010, when Plaintiff claims she was constructively discharged. In
this action, Plaintiff claims damages for lost wages as well as “mental anguish” and
“emotional distress” suffered during her employment with Kohl’s. Plaintiff alleges

violations of Title VII of the Civil Rights Act of 1964 in the form of gender
discrimination, gender stereotyping, pregnancy discrimination, and hostile
environment created by sexual harassment. Plaintiff also claims discrimination
under Kansas state law, K.S.A. §44-1001.
The procedural history of this case has been discussed by this Court in two
recent Orders regarding discovery motions filed by the parties. (See Docs. 119,
127.) That discussion is incorporated herein by reference.
DISCUSSION
In its most recent Order, this Court generally overruled Defendant’s
objections regarding relevance, burdensomeness, and oppressiveness. (Doc. 127,
at 3-4, 6-9.) The Court incorporates that analysis herein and applies those findings
to the discovery requests currently at issue. The Court previously modified the
temporal scope of Plaintiff’s requests to the time frame of January 1, 2005, to
September 10, 2012. (Id., at 5.) The Court also modified Plaintiff’s requested
geographic scope to the districts, regions, and territories overseen by District
Manager Scott Link, Vice President-Regional Manager Peter Riley, and Territory
Human Resources Executive Jolene Christensen, because these supervisors held
positions overseeing Plaintiff’s potential promotion. Thus, the corporate decisions
and actions in these areas are likely relevant to Plaintiff’s claim regarding

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employee promotion and potential discriminatory behavior. (Id., at 5-6.) The
Court finds it appropriate to apply these modified temporal and geographic
parameters to the discovery at issue.
The Court instructs the parties to apply these guidelines to future discovery
wherever possible in an effort to reduce the likelihood of requesting judicial
intervention to resolve these same issues yet again. The Court further instructs the
parties to concentrate on the facts and relevant law in their briefing to the Court
while refraining from making personal aspersions as to opposing parties and
counsel. Such content is neither helpful to the Court nor the continuing progress of
this litigation.
Within these parameters, the Court will address the discovery requests at
issue, Nos. 1 and 2 of Plaintiff’s second set of Requests for Production to Plaintiff.
Each will be discussed in turn.
A.

Request for Production No. 1.
Request No. 1 seeks copies of settlement agreements Kohl’s entered to

resolve claims of gender discrimination, sexual harassment, pregnancy
discrimination, and/or familial status discrimination from 2007 - 2012. (Doc. 1052, at 3.) In its response to Plaintiff’s motion, Defendant objects to the “nation-wide
class action” approach Plaintiff is taking towards discovery. (Doc. 112, at 4.)

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“‘Similarly situated employees are those who deal with the same supervisor and
are subject to the same standards governing performance evaluation and
discipline.’” (Id., at 5 (quoting McGowan v. City of Eufala, 472 F.3d 736, 745
(10th Cir. 2006) (internal citation omitted))).
As discussed above, however, the Court has limited the geographic scope of
Plaintiff’s requests to the districts, regions, and territories overseen by decisionmakers Scott Link, Peter Riley, and Jolene Christensen. The Court finds that any
such settlement agreements to resolve claims of gender discrimination, sexual
harassment, pregnancy discrimination, and/or familial status discrimination in any
area under the supervision of these individuals at any time from 2007 - 2012 are
discoverable.
To the extent Defendant is concerned about the confidentiality of such
documents, Defendants can request the entry of an appropriate protective order.
Confidentiality is not a privilege to discovery. Kendall State Bank. v. West Point
Underwriters, LLC, No. 10-2319, 2013 WL 593957, at *2 (D. Kan., Feb. 15,
2013) (holding “it is well-established in this District that ‘privileged’ and
‘confidential’ are two distinct concepts” and that even assuming certain records to
be “confidential, this does not mean the records are privileged and/or
nondiscoverable” (internal citation omitted)). While Courts in this District have

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acknowledged that courts elsewhere have employed a heightened standard in order
to allow discovery of information contained in settlement agreements, DIRECTV,
Inc. v. Puccinelli, 224 F.R.D. 677, 686 (D.Kan. 2004), Defendant has not
specifically requested the Court to address this balancing issue.
Defendant also argues that Plaintiff “cannot demonstrate that the
confidential settlement agreements are relevant evidence, because she cannot
demonstrate that settlement agreements are evidence of wrongdoing at all.” (Doc.
112, at 7 (emphasis in original).) Given the broad interpretation of relevance in
discovery, Fed.R.Civ.P. 26(b), the Court finds Defendant’s argument to go to the
issue of admissibility, rather than discoverability, of the evidence.
Plaintiff’s motion is, therefore, GRANTED in regard to Request No. 1,
within the modified geographic parameters discussed above. The Court orders
Defendant to respond to this Request within thirty (30) days of the date of this
Order.
B.

Request for Production No. 2.
Request No. 2 seeks “documents reflecting the amount of money Kohl’s

spent on antidiscrimination [sic] for its employees” from 2007 to 2012.1 (Doc.

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The Court understands from the parties’ briefs that what Plaintiff is seeking is
information regarding amounts spent on anti-discrimination training and education
during this time frame.
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105-2.) In response to Plaintiff’s motion, Defendant argues that the amount spent
is “irrelevant; it is only the fact of the policies’ and training’s existence that is
relevant.” (Doc. 112, at 9-10.)
Again, however, given the broad interpretation of relevance during
discovery, the Court cannot find that this information has “no possible bearing on
the subject matter of the action.” Snowden By and Through Victor v. Connaught
Lab., 137 F.R.D. 325, 341 (D.Kan.1991), appeal denied, 1991 WL 60514 (D.Kan.
Mar. 29, 1991). This is especially true in the context of the Faragher/Ellerth
defense to Title VII discrimination claims. See Helm v. Kansas, 656 F.3d 1277,
1285 (10th Cir. 2011) (holding that an employer must establish that it “exercised
reasonable care to prevent and correct promptly any sexually harassing behavior,
and . . . that the plaintiff unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm otherwise”
(citing Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141
L.Ed.2d 662 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765,
118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).
Plaintiff’s motion is, therefore, GRANTED in regard to Request No. 2. The
Court orders Defendant to respond to this Request within thirty (30) days of the
date of this Order.

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IT IS THEREFORE ORDERED that Plaintiff’s Second Motion to Compel
(Doc. 104.) is GRANTED as more fully set forth above.
Dated at Wichita, Kansas, on this 15th day of July, 2013.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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