Jackson v Strategic Restaurants Acquisition Co, LLC

Filing 13

ORDER granting 8 Motion to Compel. A telephone status conference is SET for July 12, 2012, at 1:00 p.m. All scheduling deadlines are stayed until further order of the court. Signed by Magistrate Judge Docia L Dalby on April 26, 2012. (SR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SHANTRICE JACKSON

CIVIL ACTION

VERSUS

NUMBER 11-268-JJB-DLD

STRATEGIC RESTAURANTS
ACQUISITION CO., LLC d/b/a
BURGER KING
ORDER
This matter is before the court on defendant’s motion to compel discovery. (rec.doc.
8) The motion is opposed.
Background
Plaintiff filed this suit pursuant to the Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000(e) (“Title VII”), et.seq, alleging “severe and/or pervasive supervisory sexual
harassment,” and “constructive discharge.” (rec.doc. 8) In support of these claims, plaintiff
contended that she was a shift manager at one location of Burger King, and was subjected
to “unwanted sexual comments, joking, and sexual advances” by the Restaurant Manager
between July 10, 2009, through September 1, 2009. She stated that she reported the
behavior to other shift managers, but the harassment did not stop.

She then was

transferred to a second location on October 15, 2009, where “she was subjected to
employee questions and negative comments about her schedule and her mental status
deteriorated further.” Thereafter, she was transferred to a third location on December 15,
2009, where she contended she did not have her own keys to the store or the access code
for the computer, and there were not enough employees assigned on her shift. She also
alleged that a manager of another location blocked operational changes she was to

implement and re-assigned her employees to his location. While at this third location, she
reported her relief manager for reporting to work early and smoking marijuana, and when
she did not receive a response to her report, she gave a two-week notice of resignation.
At this time, it appears that a meeting was held, but no changes were made, and she
thereafter resigned on January 20, 2010. Plaintiff seeks relief in the form of back and front
pay, fringe benefits, damages for emotional distress, and punitive damages. Id. Further,
in the status report filed with this court, plaintiff alleges that she has “suffered heart
problems, HBP [high blood pressure], and panic attacks.” (rec.doc. 6)
The Instant Motion to Compel
Defendant’s motion concerns two matters: 1) the completion of plaintiff’s deposition
testimony, which has been shortened twice due to plaintiff’s alleged medical condition; and
2) the failure to produce two settlement agreements executed between plaintiff and others
relating to recent automobile accidents.
Issue 1 - Completion of Plaintiff’s Deposition
Defendant scheduled plaintiff’s deposition for January 23, 2012, at 9:30 a.m. in the
office of plaintiff’s counsel in Metairie, Louisiana. Defendant began questioning plaintiff
about her background and employment; however, as a courtesy to plaintiff’s counsel, the
deposition was stopped briefly to allow plaintiff’s counsel to attend to another matter. When
the deposition resumed a few minutes later, defendant was advised by plaintiff’s counsel
that plaintiff had taken anti-anxiety medication during the break that would cause her to be
asleep “from the time she ordinarily takes it at 8:30 until the kids come home from school,”
and that failure to take it would make her “begin to feel faint. So either way, she can’t

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continue.” (rec.doc. 8, rec.doc. 8-3, pgs 4-5) The parties agreed to reconvene plaintiff’s
deposition in Baton Rouge, Louisiana, on February 24, 2012, at 9:30 a.m. to accommodate
plaintiff.
At the second deposition, defendant asked plaintiff if she had taken any medications
that morning that would interfere with her ability to give competent testimony, and plaintiff
replied that she had not. However, when asked when she would next need to take any
medication, plaintiff responded with “9:30,” which was the start time for the second
deposition. This time, plaintiff indicated she would be “incapacitated for a period of 45
minutes to an hour after the drugs are taken,” but she advised she was mentally competent
of proceeding without taking the medication, and the deposition moved forward. (rec.doc.
8-1, pg 2) After a series of questions relating to her work history with defendant, the
questioning turned to the locations and events relating to the alleged harassment incidents
which are the subject of this lawsuit. Before defendant could question plaintiff about the
alleged harassment, however, plaintiff “began to breathe heavily,” and “began spitting into”
a wastebasket she held in her lap. Plaintiff then indicated she could not continue testifying
and again took medication during the break which left her incapacitated. Id, at pg 3.
Defendant now seeks to compel plaintiff to either complete her deposition, or face
dismissal of her suit for her failure to do so, under either Rule 37(b) or Rule 41(b) of the
Federal Rules of Civil Procedure. Defendant argues that plaintiff’s testimony is that the
medication renders her incapacitated for an hour, and that the deposition can be reset to
occur after the temporary incapacity has passed, but that a court order is necessary to
insure plaintiff’s compliance in the completion of her deposition.

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In response, plaintiff clarified that it was “not strictly, or even largely,” a matter of the
timing of her medication that stopped both her depositions prematurely; it was more her
perception that the defendant’s questions would have her address “the subject of the
alleged perpetrator,” which in turn, caused her flashbacks and made her sick. Plaintiff
further explained that following the second deposition, she visited her doctors at Earl K.
Long to discuss her issues with the deposition, where she learned that they would not
continue to treat her and referred her to the “Capital Area facility.” Plaintiff requests that
this court give plaintiff and her counsel “time to establish a relation with Capital Area and
determine what, if anything, might be done to enable plaintiff to complete her deposition,”
and asks that the scheduling order be vacated. (rec.doc. 9)
In reply to plaintiff’s opposition, defendant responds that it has been almost three
years since the alleged incidents occurred, one year since the filing of the lawsuit, and
more than 60 days since the failed deposition, which is enough time to have assessed
plaintiff’s ability to testify and proceed with her suit. Defendant contends that allowing
plaintiff an additional 30 days provides enough time for plaintiff to determine whether or not
she is medically able to participate in her own litigation. Additionally, the delays in being
able to take plaintiff’s deposition will result in the resetting of the current scheduling
deadlines, and defendant requests that the deadlines be reset following the completion of
plaintiff’s deposition.
As the parties are aware, the court has broad discretion in discovery matters. Here,
plaintiff filed suit alleging “severe and/or pervasive supervisory sexual harassment,” and
“constructive discharge” occurring at three different locations. (rec.doc. 8)

Plaintiff’s

testimony would seem to be indispensable, as a practical matter, to proving her case,
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absent defendant’s stipulation to liability and damages, which seems unlikely. It likewise
is clear that plaintiff cannot refuse to be deposed, regardless of the reason, and then
expect to be allowed to present testimony at trial. Here, plaintiff argues basically that she
suffers from panic attacks when faced with revisiting her allegations of harassment (which
make it impossible to function), which in turn necessitates taking anti-anxiety medications,
also which make it impossible to function. Plaintiff obviously finds herself on the horns of
a dilemma that only she can resolve.
According to counsel for plaintiff, plaintiff was to visit Capital Area on March 19,
2012, to assess her condition, in particular the feasibility of moving forward with the
litigation. Plaintiff should be able either to conclude her deposition or to determine that she
will not testify on her own behalf in this litigation within the next 60 days. The court therefore
will order that plaintiff appear for her deposition within the next 60 days or notify defendant
that she is either unwilling or medically unable to testify in this matter. Further, the court will
stay the current deadlines, all of which will be reset after the issue of plaintiff’s continued
participation in the litigation is resolved.
Issue 2 - The Production of the Settlement Agreements
Plaintiff testified that she filed two lawsuits relating to automobile accidents, one of
which was settled in 2009, and one of which is still pending. When defendant attempted
to question plaintiff regarding the amount she received in settlement of her claims, plaintiff’s
counsel objected and advised plaintiff not to answer the question because he thought at
that time that the settlements might be confidential. Although plaintiff later determined that
the agreements were not confidential, she refused to produce the agreements, stating that
“they seem discoverable only when related to the pending litigation.” (rec.doc. 8-1, pg. 7)
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Defendant contends the settlement agreements “bear heavily” on plaintiff’s credibility and
the existence of any physical, mental, or emotional conditions plaintiff may have suffered
prior to or after the alleged harassment claims raised in this lawsuit, especially as plaintiff
has claimed she has sustained mental and emotional damages as of result of the alleged
harassment.
Settlement agreements are discoverable under Rule 26(b)(1) if the settlement
information is relevant to defenses such as mitigation, waiver, and estoppel. Glaze v. G&G
Marine, Inc., 1997 WL 20738 at *1 (E.D. La. January 16, 1997). See also, Collins v.
Coastline Constr., 1992 WL 125382 at *2 (E.D. La. May 25, 1992) and Koch Industries v.
Columbia Gas Transmission Corp., 1990 WL 72789 (E.D. La. May 29, 1990). While the
two settlement agreements appear on the surface to have marginal relevance to the
pending litigation, they meet, albeit barely, the threshold requirement that they be relevant
to a claim or defense, or may lead to relevant information. The settlement agreements
therefore must be produced.
Accordingly,
IT IS ORDERED that the motion to compel discovery (rec.doc. 8) be GRANTED as
follows:
1.

Plaintiff shall appear for a mutually scheduled deposition within 60 days of
the date of this order or notify defendant that plaintiff is either unwilling or
medically unable to testify in this matter. In the event plaintiff fails either to
appear or to fully participate in a rescheduled deposition, the court shall issue
further appropriate orders upon the motion of either party.

2.

Plaintiff shall produce the two settlement agreements within 14 days of the
date of this Order.

3.

All scheduling deadlines are STAYED until further Order of this court.
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4.

In all other respects, the motion is denied.

IT IS FURTHER ORDERED that a telephone status conference is SET for July 12,
2012, at 1:00 p.m. Counsel for defendant shall initiate the conference call to chambers at
[phone].
Signed in Baton Rouge, Louisiana, on April 26, 2012.

MAGISTRATE JUDGE DOCIA L. DALBY

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