Folger v. Medicalodges, Inc. et al

Filing 49

MEMORANDUM AND ORDER granting in part and denying in part 35 Motion to Compel. See order for details. Signed by Magistrate Judge Karen M. Humphreys on 12/3/2013. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JACQUELINE FOLGER, et al.,
Plaintiffs,
v.
MEDICALODGES, INC., et al.,
Defendants.

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Case No. 13-1203-MLB

MEMORANDUM AND ORDER

This matter is before the court on defendants’ motion to compel (Doc. 35). For the
reasons set forth below, the motion shall be GRANTED in part and DENIED in part.
Background
Plaintiff brings this action against her former employer, Medicalodges, Inc., and its
president, Garen Cox, alleging employee misclassification and unpaid wages under the Fair
Labor Standards Act1 (“FLSA”) and the Kansas Wage Payment Act2 (“KWPA”).
Plaintiff claims she was initially hired by defendants as an MDS Coordinator3 at
Medicalodges in Goddard, Kansas (a nursing care facility) as an hourly, non-exempt
1

29 U.S.C. §§ 201, et seq.
K.S.A. §§ 44-301, et seq.
3
Plaintiff does not define the term “MDS Coordinator” in the pleadings; however, defendants
identify this position as a “Minimum Data Set” coordinator, a common position in nursing homes
which required plaintiff to assess the nursing needs and coordinate a plan of care for each nursing
home resident (Defs.’ Mem. Supp., Doc. 36 at 2, 11).
2

employee. She alleges that she was often required to work more than forty (40) hours per
week but was only paid for forty (40) hours. She also maintains that defendants’ purported
practice of “rounding down” employees’ work hours led to underpayment. After working
for defendants for a period of time, plaintiff was reclassified as a salaried, exempt employee
although she continued working in the same position. Plaintiff asserts that this classification
was an intentional misclassification under the FLSA by defendants to avoid payment of
overtime wages.
In addition to her “off-the-clock” and misclassification wage claims, plaintiff also
brings state common law claims of unjust enrichment/quantum meruit and breach of
contract. Plaintiff filed this case as a collective action under the FLSA and a class action
under Fed.R.Civ.P. 23 on behalf of all other similarly situated employees pending
certification by the district court.

Defendants’ Motion to Compel (Doc. 35)
Defendants’ motion concerns plaintiff’s responses to defendants’ First Request for
Production of Documents and First Set of Interrogatories.

Plaintiff timely responded to

defendants’ requests, but the parties disagreed on the sufficiency of those responses.

As

required by D. Kan. Rule 37.2, the parties exchanged correspondence and conferred
regarding this dispute. Despite the efforts at resolution, plaintiff’s responses to defendants’
First Interrogatories Nos. 3, 11, 13, and 15 and Request for Production No. 15 remain at
issue for a ruling by the court.4 For ease of discussion, the requests are analyzed below in

4

Defendants’ briefing repeatedly refers to Requests for Production Nos. 13 and 16 (see Defs.’ Mot.,
Doc. 35 at 1; Mem. Supp., Doc. 36 at 12; Reply, Doc. 43 at 11.) Defendants’ briefing provides no
2

the categories referenced in the parties’ briefing.

I.

PLAINTIFF’S PERSONAL INFORMATION
A highly-contested portion of the discovery sought by defendants includes plaintiff’s

personal phone records and consumer information. To meet their burden to rebut plaintiff’s
evidence of uncompensated work, defendants contend that they must be allowed to discover
this personal information.5 Plaintiff argues that the information lacks relevance, and the
requested discovery is overbroad, creates undue burden and invades plaintiff’s privacy.

A. Phone Records: Interrogatory No. 13 and Request for Production No. 15.
Defendants’ Interrogatory No. 13 seeks identification of “each and every telephone
number—whether residential, mobile, facsimile, or other—[plaintiff] utilized and/or
maintained in [her] name during the time” that she was employed by defendants, as well as
the corresponding service provider. Plaintiff objects to Interrogatory No. 13 as “seeking
information that is neither relevant to the subject matter of this lawsuit nor reasonably
calculated to lead to the discovery of admissible evidence.”
Similarly, defendants’ Request No. 15 seeks “records, invoices, bill, and/or
documents reflecting telephone calls, and the times and durations of such calls, placed to or
received on [plaintiff’s] residential telephone, cellular telephone, or any other telephone
[plaintiff] utilized” during her employment. Plaintiff objects to the request by repeating the
argument regarding either Request Nos. 13 or 16, but focuses on Request No. 15. Plaintiff’s
response notes that she provided responsive documentation to Request No. 13 and that the parties
agreed upon resolution to any dispute regarding Request No. 16. (Pl.’s Mem. Opp., Doc. 38, at 8
n.3.) Because defendants failed to refute plaintiff’s characterization of the requests in dispute, the
Court disregards any demand for responses to Request Nos. 13 and 16 and focuses solely on
Request No. 15.
5
See discussion infra Sect. I.A at 8.
3

relevance objection and asserting that the request is “overly broad and unduly burdensome
in scope, [and] harassing.”
Plaintiff objects to both requests on the basis of relevance. Fed.R.Civ.P. 26(b) states
that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to
the claim or defense of any party . . . . Relevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.” Relevance is broadly construed at the discovery stage6 and discovery relevance
is minimal relevance,7 which means a request should be deemed relevant if there is any
possibility that the request will lead to the discovery of admissible evidence.8
The party requesting discovery bears the low burden of showing the request to be
relevant on its face, but once facial relevance is established, the burden shifts to the party
resisting discovery.9 “The party opposing discovery is required to come forth with more
than a mere conclusory statement that the discovery is irrelevant and must specifically
demonstrate how the request is not reasonably calculated to lead to the discovery of
admissible evidence.”10 The decision to grant a motion to compel is a matter of discretion

6

Nkemakolam v. St. John's Military Sch., 2013 WL 5551696, at *3 (D. Kan. Oct. 7, 2013) (citing
Smith v. TCI, 137 F.R.D. 25, 26 (D. Kan 1991)).
7
Teichgraeber v. Memorial Union Corp. of Emporia State University, 932 F.Supp. 1263, 1265
(D.Kan.1996) (internal citation omitted).
8
Nkemakolam, 2013 WL 5551696, at *3 (citing Smith, 137 F.R.D., at 26).
9
See Johnson v. Kraft Foods N. Am., Inc., 238 F.R.D. 648, 653 (D. Kan. 2006).
10
Jackson v. Coach, Inc., 2008 WL 782635, at *4 (D. Kan. Mar. 20, 2008)(citing Teichgraeber,
932 F.Supp. at 1266)).
4

for the court.11 “Courts should lean towards resolving doubt over relevance in favor of
discovery.”12
To support their assertion of relevance, defendants outline the applicable burden of
proof which plaintiff does not dispute. Though the ultimate determination of applicable law
will be made by the district judge, a brief review of the defendants’ prospective burden of
proof demonstrates the relevancy of evidence to rebut plaintiff’s claims. Once plaintiff
provides sufficient evidence supporting her claim that she performed uncompensated work,
the burden will shift to defendants to provide evidence which negates “the reasonableness of
the inference to be drawn from the employee’s evidence.”13 A review of relevant case law
reveals little about what specific types of evidence might meet defendants’ burden.14
Plaintiff’s claim that she worked hours off-the-clock and defendants’ burden of
rebuttal make at least minimally relevant any information which could possibly lead to
admissible evidence that she was not working during the claimed hours. Because the

11

G.D. v. Monarch Plastic Surgery, P.A., 239 F.R.D. 641, 644 (D. Kan. 2007) (citing Martinez v.
Schock Transfer & Warehouse Co., 789 F.2d 848, 850 (10th Cir. 1986)).
12
Jackson, 2008 WL 782635, at *4 (citing Teichgraeber, 932 F.Supp. at 1266) (internal citations
omitted).
13
Robinson v. Food Serv. of Belton, Inc., 415 F. Supp. 2d 1227, 1229 (D. Kan. 2005) (citing
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946)); see also Dressler v. Kansas
Copters & Wings, Inc., 2010 WL 3168358, at *6 (D. Kan. Aug. 10, 2010) (finding that plaintiff was
owed overtime because defendants failed to provide rebuttal evidence).
14
See, e.g., Doty v. Elias, 733 F.2d 720, 725 (10th Cir. 1984) (noting that both parties provided
testimony to meet their respective burdens); Garcia v. Tyson Foods, Inc., 890 F. Supp. 2d 1273,
1284 (D. Kan. 2012) (stating “Employee testimony, documentary evidence, and expert testimony
are appropriate methods of making a prima facie showing of a pattern or practice of unpaid time and
wages” and finding that the employer failed to rebut the evidence); McLaughlin v. Somnograph,
Inc., 2005 WL 3489507, at *5 (D. Kan. Dec. 21, 2005) (describing spreadsheets containing
overtime estimates by defendant); see also Am. Fed'n of State, Cnty. & Mun. Employees v.
Louisiana ex rel. Dep't of Health & Hospitals, 2001 WL 29999, at *5 (E.D. La. Jan. 9, 2001)
(noting that plaintiff provided numerous documents, as well as photo albums, credit card receipts,
notes, and videos to support his claims of uncompensated overtime).
5

discovery sought appears relevant on its face, it is plaintiff’s burden to establish a lack of
relevance. Though plaintiff speculates that the telephone information might not provide a
specific location or what person may have been involved in the telephone call, these
assumptions do not meet her burden.

Therefore, defendants’ requests for telephone

information in Interrogatory No. 13 and Request No. 15 meet the minimal relevance
standard of discovery.
Plaintiff’s remaining objections to Interrogatory No. 13 and Request No. 15 are
overruled.

Plaintiff’s overbreadth objection is rejected because defendants properly

narrowed the requests to those telephone numbers held during plaintiff’s employment.
Further, plaintiff’s response notes that there are only two (2) phone numbers for which
information will be available, which would apparently amount to approximately 60
telephone statements. The court finds that any potential burden is not disproportionate to
any potential benefit to defendants.15 Although plaintiff argues in her response that the
requested discovery invades her privacy, the objection is waived because it was not timely
raised in plaintiff’s initial responses.16
Defendants’ motion to compel responses to Interrogatory No. 13 and Request No. 15
is GRANTED. Plaintiff provided her residential phone number and her cellular number in
her response to Interrogatory No. 1.17 Plaintiff is hereby directed to supplement her answer
15

See, e.g., Manning v. Gen. Motors, 247 F.R.D. 646, 654 (D. Kan. 2007) (overruling the objection
of undue burden, finding that even if defendant must review hundreds of documents at great labor
and expense, defendant failed to show that the hardship would be undue and disproportionate to the
benefits plaintiff would gain from the document production.)
16
Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 621 (D. Kan. 2005) (“It is also well
settled that when a party fails to assert an objection in its initial response to the discovery request
and raises it for the first time in response to a motion to compel, the objection is deemed waived.”).
17
Defs.’ Reply, Doc. 44, Ex. B, at 3, 8.
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to Interrogatory No. 13 with any other numbers utilized or maintained during her
employment with defendants, to identify her service provider for all number(s), and to
respond to Request for Production No. 15.

B. Consumer history: Interrogatory No. 15
Defendants’ Interrogatory No. 15 asks plaintiff to identify “each and every private or
public accommodation or facility—such as health clubs, video rental stores, turnpikes,
tanning salons, etc.—for which [plaintiff’s] ability to access such accommodation or facility
depended upon obtaining a membership or utilizing a password, identification number, or
data transmission device unique to” plaintiff, specific to the time period of plaintiff’s
employment by defendants. Plaintiff objects to Interrogatory No. 15 by repeating the
relevance objection and asserting that the request is “overly broad and unduly burdensome
in scope, [and] harassing.”
Plaintiff argues that the relevance of this information is not shown by the alleged
conclusory statements of defendants.

But as analyzed above,18 though the consumer

information may not later be admissible at trial, on its face the request meets the standard of
minimal relevance for discovery.

Additionally, the request for identification of these

consumer accounts is not, in and of itself, overbroad. Defendants have narrowed their
request to those accommodations which would require specific identification or passwords
and the request is confined to the time period of plaintiff’s employment by defendants.
Although plaintiff argues that the requested discovery invades plaintiff’s privacy, that
objection was not timely raised in plaintiff’s initial responses and the objection is therefore
18

See discussion supra Sect. I.A., at 5-6.
7

waived.19 Defendants’ motion to compel a response to Interrogatory No. 15 is therefore
GRANTED.

II.

PLAINTIFF’S WORK HISTORY: Interrogatories No. 3 and 11
The remaining discovery at issue concerns plaintiff’s work history, both before and

after her employment by defendants. Defendants assert that plaintiff’s work history is
relevant to her classification as an exempt employee, while plaintiff argues that the only
relevant employment considerations to her classification are the specific duties she
performed for defendants.
Interrogatory No. 3 asks plaintiff to provide her work history after high school, along
with specific details of her employment, and to provide an authorization for release of
related employment records. Interrogatory No. 11 asks plaintiff to identify details of all
applications for employment since her separation from defendants’ employment and seeks
authorization for release of related employment records.
Plaintiff objects to Interrogatory No. 3 as “overly broad and unduly burdensome in
time and scope and seeking information that is neither relevant to the subject matter of this
lawsuit nor reasonably calculated to lead to the discovery of admissible evidence.” With the
exception of the breadth of time, plaintiff’s objection to No. 11 is identical.
Defendants assert that plaintiff’s entire work history is relevant to show that she was
capable of performing specific duties and to dispel plaintiff’s assertions that she was not
19

Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 621 (D. Kan. 2005) (“It is also well
settled that when a party fails to assert an objection in its initial response to the discovery request
and raises it for the first time in response to a motion to compel, the objection is deemed waived.”).
Furthermore, any privacy concerns may be appropriately safeguarded by the protective order
currently in place. (See Prot. Order, Doc. 29.)
8

properly classified.

Defendants further reason that her post-separation employment is

relevant because she would not have applied for jobs post-separation that she was not
capable of performing. Plaintiff maintains that the only relevant inquiry to her proper
classification is whether her specific duties at Medicalodges permit exemption under the
FLSA and therefore any outside employment history is irrelevant.
Both parties rely, in part, on the Code of Federal Regulations but neither party’s
reliance on the regulations is entirely dispositive. Plaintiff erroneously cites to 5 C.F.R. §
551.202 to assert that the proper FLSA classification of an employee rests only on the
“duties actually performed by the employee.” While this provision may be instructive,
plaintiff ignores the fact that this regulation applies only to governmental determination of
administrative personnel in the Office of Personnel Management and is inapplicable to
plaintiff’s claims. Defendants more appropriately cite 29 C.F.R. § 541.301 which outlines
the “learned professional” exemption, which is applicable to plaintiff’s classification.
Section 541.301 outlines a three-part “primary duty test” to determine whether an
employee is exempt as a learned professional. This test requires, in part, both analysis of an
employee’s actual duties20 and how an employee acquired the advanced knowledge required
to meet the exemption—whether through intellectual instruction or through a “combination
of work experience and intellectual instruction.”21 Though the regulation notes that the
“best prima facie evidence” of proper classification is attainment of the appropriate
academic degree,22 the evidence is not specifically limited to education. Likewise, though

20

29 C.F.R. § 541.301(a)(1).
29 C.F.R. § 541.301(d).
22
29 C.F.R. § 541.301(d); see 29 C.F.R. § 541.301 (e)(2) “registered nurses . . . generally meet the
21

9

plaintiff’s duties at Medicalodges must be analyzed, those duties are not the sole factor.
Plaintiff’s work history as a licensed nurse meets the minimal standard of relevance
because it would tend to provide evidence of experience that may come into play when
determining whether she would have been properly classified as a learned professional. To
that end, plaintiff’s degree in nursing is a starting point for that consideration and would
provide approximately fifteen (15) years of employment history.23 Any request for work
history prior to her attainment of the nursing degree does not meet even the minimum
standard of relevance and is overbroad on its face, and defendants fail to show why her prenursing work history is relevant to her classification. That portion of Interrogatory No. 3 is
therefore DENIED.
Likewise, plaintiff’s post-separation employment clearly could not have been a
consideration for her proper classification by defendants and is not relevant on its face.24
Plaintiff’s objection to Interrogatory No. 11 is sustained on the basis of relevance and
defendants’ request for that information is DENIED.
The court also denies that portion of the motion to compel requesting plaintiff to
execute releases allowing defendants to obtain plaintiff’s employment records from all
employers, past and present. Defendants disingenuously argue that they have only asked
plaintiff to identify her employers25 and ignore that they have requested that plaintiff sign
duties requirements for the learned professional exemption.”
23
See Doc. 36, Ex. D at 1; Doc. 44, Ex. B at 3.
24
In fact, defendants’ Reply focuses on plaintiff’s previous work history and ignores plaintiff’s
post-separation employment. Defendants argue that plaintiff’s “employment history meets the
minimal relevance threshold . . . because her prior work history is a relevant consideration to her
classification as an exempt employee.” (Doc. 44 at 10, 11).
25
See, e.g., Defs.’ Reply, Doc. 44 at 8 (stating “Defendants ask Plaintiff to identify her prior
employers.”).
10

releases of information for all identified employers. However, defendants do not seek such
releases in either their motion or reply.

The court further finds that the breadth of

information that is likely included in 15 years of personnel files is overbroad on its face, and
a narrowly-tailored business record subpoena under Fed. R. Civ.P. 45 to specific employers
for precise information would be the appropriate procedure to compel such information if
defendants later find it warranted.

IT IS THEREFORE ORDERED that defendants’ motion to compel (Doc. 35) is
GRANTED in part and DENIED in part as set forth above.

Defendants’ motion is

GRANTED as to Interrogatory Nos. 13 and 15 and Request No. 15. Defendants’ request
as to Interrogatory No. 3 is GRANTED only as to identification of plaintiff’s employment
history for the time period from her attainment of a nursing degree in 1995 to her
employment with defendants; it is DENIED as to pre-nursing employment and as to a
signed release to all past employers. Defendants’ motion as to Interrogatory No. 11 is
DENIED. In light of the approaching December 20, 2013 discovery deadline, Plaintiff is
ordered to respond to all requests on or before December 17, 2013.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 3rd day of December, 2013.

S/ Karen M. Humphreys
KAREN M. HUMPHREYS
United States Magistrate Judge

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