Whitaker v. Fedex Freight, Inc. et al

Filing 53

ORDER granting in part and denying in part 37 Motion to Compel Discovery. The motion is GRANTED to the extent that defendant shall provide supplemental responses to plaintiffs 5 interrogatory, 19 request for production, and 8 supplemental request for production within twenty-one (21) days of this Order. In all other respects, the motion is DENIED.. Signed by Magistrate Judge Docia L Dalby on 12/16/2011. (LSM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SHIRLEY WHITAKER

CIVIL ACTION

VERSUS

NUMBER 10-428-BAJ-DLD

FEDEX FREIGHT, INC., AND FEDEX
CORPORATION

ORDER
This matter is before the court on pro se plaintiff’s “motion to compel plaintiff
requested information from first, second and third set of supplemental discovery and its
interrogatory #5 and request for production #19.” (rec.doc. 37) The motion is opposed.
Background
Plaintiff began employment with defendant (or its predecessor) in 1999 as a billing
associate. In February 2009, staffing changes were implemented, which affected plaintiff’s
full-time billing associate position in that she was the employee given the option either to
accept a transfer to another office; agree to a layoff with a severance package; or accept
a part-time position as a supplemental office associate. Plaintiff accepted the part-time
position.
Thereafter, on March 5, 2009, plaintiff filed an EEOC charge (“Charge 1") which
asserted race and age discrimination in connection with her job change from a full-time
billing associate to a part-time supplemental office associate. On April 24, 2009, plaintiff
filed a second EEOC charge (“Charge 2") which stated that on March 26, 2009, she had
been written up as tardy for calling in sick, and asserted that this write-up was in retaliation
for filing Charge 1.

On May 13, 2010, plaintiff filed a third EEOC charge (“Charge 3") based on
retaliation, which stated that her full-time status, along with the benefits associated with that
position, had not been restored; she continued to receive threats and corrective actions
regarding her job performance; her FMLA leave was denied; she received “negative emails”
constantly; and she was subjected to a “rude and hostile work environment.”
Plaintiff thereafter filed this Title VII action on June 28, 2010, with respect to the
right-to-sue notices she received on Charges 1 & 2, and subsequently amended her
complaint to include Charge 3 once the right-to-sue notice was received on that charge.
Approximately three months after the filing of this lawsuit, on September 27, 2010, plaintiff
was terminated by defendant for violation of its attendance policy.
The Motion to Compel
On September 28, 2011, plaintiff filed the instant motion to compel, generally
seeking information relating to: 1) dates for “pre-shift” meetings between 2002 and January
1, 2011, which addressed changes to the employee handbook; 2) data on the supplemental
office associate who replaced plaintiff after her termination; 3) general employment data
from January 1, 2006, to September 27, 2010, for all associates; and 4) unredacted
“Kronos Edit Timesheets” for Joann Robertson, an alleged similarly situated employee.
With regard to the “pre-shift” meetings, plaintiff’s interrogatory no. 5 sought the dates
of the meetings and her request for production no. 19 sought the signature sheets for the
meetings.

Defendant responded that the discovery was overly broad, vague and

ambiguous, sought irrelevant information, was not reasonably calculated to lead to the
discovery of admissible documents, and the burden or expense of complying outweighed
its likely benefit.
2

While the court agrees that nine years’ worth of documents relating to employee
meetings regarding changes to the employee handbook is overly broad and somewhat
vague, the court finds that defendant’s responses with regard to these two discovery
requests are insufficient. The court will order that defendant supplement their responses
to include the dates of all “pre-shift” meetings held at the Baton Rouge facility between
January 1, 20071, through September 27, 2010, and to provide the signature sheets for
these “pre-shift” meetings.
Next, plaintiff states that she requested the pre-shift log for a February 6, 2009,
meeting which concerned staffing adjustments, and seems to argue that she was not
informed of the staffing adjustment through the meeting as were other similarly situated
employees but instead was notified on February 5, 2009, of the changes with regard to her
position. Plaintiff did not provide a discovery request in connection with this statement, but
she indicates that defendant responded that it was not aware of any staffing adjustment
meeting on February 6, 2009. (rec.doc. 37, pg. 2) In response, defendant’s opposition
does state there was a February 6, 2009, meeting concerning staffing adjustments, but that
defendant was “not aware of any preshift meeting requirement or any sign-in sheet for the
February 2009 staffing adjustments meeting.” (rec.doc. 45, pg 6) As defendant has stated
there was no sign-in sheet for the February 2009 staffing adjustments meeting, defendant’s
response is sufficient.

1

Plaintiff’s requests and interrogatories contain several different time periods. Plaintiff has requested
timesheets for her comparators, and the beginning time frame for this request is January 1, 2007. See
rec.doc. 45-1, pg 20) Thus, for the sake of consistency, the court will use January 1, 2007, as the beginning
time frame for the requests covered by this Order.

3

Moving on to plaintiff’s request for production no. 6, plaintiff requested the resume
and employment application for the person who replaced plaintiff either as a supplemental
office associate or supplemental dock associate. Defendant objected to the request, but
stated that upon the entry of a protective order and in the event it located responsive
documents, such would be provided.

(rec.doc. 45-1, pg. 11).

Defendant later

supplemented its response to note that after plaintiff’s termination, plaintiff was not
replaced, but defendant instead used “in-house, cross-trained employees [Supplemental
Dock Associates] to perform billing, which was plaintiff’s primary job responsibility at the
time of her termination.” (rec.doc. 45-4, pg. 10) Defendant contends that Gezniak was
hired as a Supplemental Field Office Associate in November, 2010, to perform driver
check-in, which were not a part of plaintiff’s duties at the time of her termination, and in
July, 2011, a Supplemental Office Associate was hired to perform billing.
There appears, however, to be some confusion as to whether or not plaintiff is
alleging that defendant’s response was insufficient to this request for production (request
no. 6), or if she meant to allege that defendant’s response was insufficient to a different
request for production (supplemental request no. 6). Plaintiff’s motion lists request no. 6
but provides defendant’s response to supplemental request no. 6. In the event that plaintiff
was referring to request for production no. 6 as indicated in her motion, the court
determines that defendant’s response (as noted above) was sufficient.
In the event that plaintiff was referring to her August 29, 2011, “supplemental
request for additional information on discovery (rec.doc. 45-3, pg 4, and rec.doc. 37, pg 2),”
which requested the dates of hire and resignation of Jake Minner, the job description for
a supplemental field office associate, and the job posting at the time of Sandra Genziak’s
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hire, plaintiff complains that defendant’s response that the job posting at the time of hire for
Sandra Genziak is not relevant is an insufficient response because the job positing “will
show who was hired as a Supplemental Office Associate after Plaintiff’s termination.”
(rec.doc. 37, pg 2) Defendant responded to this request by referring plaintiff to the
previously produced job description for this position, Bates-numbered FEDEX000619,
effective date of June 1, 2007. Thus, the court determines that defendant’s response was
sufficient.
Next, plaintiff’s supplemental request for production no. 8 requested all employment
data for January 1, 2007, to September 27, 2010, for “office full or part-time, supplemental
office associates, and supplemental dock associates,” including “name, hiring date,
employment location, facility, wages, their race, age, gender, discharge date and reason
for discharge." (rec.doc. 37, pg. 2) Defendant generally objected to the request on all
grounds and specifically objected that the discovery sought irrelevant information; was not
reasonably calculated to lead to the discovery of admissible evidence; sought confidential
information relating to third-parties; and the burden or expense of complying with the
request outweighed its likely benefit.2
The court notes that other than lodging objections, the record does not reflect that
defendant provided any documents related to supplemental request for production no. 8.
The court therefore will exercise its broad discretion in discovery matters and order
defendant to supplement its response to this discovery request to provide employment

2

Defendant further asserted in its opposition to the motion to compel that, with regard to this request,
that plaintiff requested information regarding dock associates and city drivers, positions which are not
comparators to plaintiff’s position; however, the court notes that plaintiff's request does not ask for employment
data regarding dock associates and city drivers.

5

information from January 1, 2007, through September 27, 2010, relating to office
associates, supplemental office associates, and supplemental dock associates at the Baton
Rouge facility. Such information shall include the names of the employees, their hiring
and/or termination dates, race, and age at time of hiring and/or termination. Defendant may
provide this information under seal and subject to the protective order currently in place.
However, with regard to plaintiff’s request for information relating to other facilities,
the court finds that this request is overly broad as plaintiff has not made any claim that the
alleged discrimination extended beyond the facility where she was employed. Moreover,
as plaintiff has not brought any claims regarding unequal pay, or raised a
discrimination/retaliation claim based on her sex, her request with regard to her
comparators’ pay or sex seeks information which is not relevant to any claim or defense
in this matter.3 Thus, the court will not order defendant to produce this employment
information in response to supplemental request for production no. 8.
Lastly, plaintiff seeks unredacted Kronos timesheets for office associates and
supplemental office associates including Jo Ann Robertson from January 1, 2007, through
December 31, 2010. (rec.doc. 45-1, pg 20) Plaintiff asserts that defendant provided
redacted timesheets which did not include dates, and that this was done to cover up
Robertson’s tardiness in 2008-2010. (rec.doc. 37, pg. 3) Defendant contends that any
redactions were to prevent disclosure of Social Security numbers, home addresses, and

3

The court is aware that plaintiff’s change in position resulted in a loss of pay on an hourly basis;
however, plaintiff has not indicated that her hourly wage differed in any way from other part-time supplemental
office associates due to a discriminatory basis. Likewise, as plaintiff’s EEOC charges are devoid of any
discrimination or retaliation based on her sex, any information relating to her comparators' sex is not relevant
to a claim or defense in this matter.

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phone numbers, and that no dates or reasons for completion of the Kronos timesheet forms
were redacted.
The court notes that plaintiff did not provide an example or copy of a redacted
timesheet for its review, or explain how the alleged missing information on someone else’s
timesheet is relevant to her claims. Thus, the court finds that defendant’s response to this
request is sufficient.
Accordingly,
IT IS ORDERED that plaintiff’s motion to compel discovery responses (rec.doc. 37)
is GRANTED in part and DENIED in part as follows:
1.

The motion is GRANTED to the extent that defendant shall provide
supplemental responses to plaintiff’s interrogatory no. 5, request for
production no. 19, and supplemental request for production no. 8 within
twenty-one (21) days of this Order; and

2.

In all other respects, the motion is DENIED.

Signed in Baton Rouge, Louisiana, on December 16, 2011.

MAGISTRATE JUDGE DOCIA L. DALBY

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