Minnis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College et al

Filing 40

RULING granting in part and denying in part 26 Motion to Compel. The portion of the motion as it pertains to Request for Production Nos. 6 and 7 is GRANTED. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 12/4/2013. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ANTHONY MINNIS

CIVIL ACTION

VERSUS

NO. 13-5-BAJ-RLB

BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY
AGRICULTURAL AND
MECHANICAL COLLEGE, et al

RULING ON PLAINTIFF’S MOTION TO COMPEL

Before the Court is Plaintiff’s Motion to Compel (“Motion”) responses to Interrogatories
and Requests for Production of Documents, filed on September 25, 2013. (R. Doc. 26). On
October 23, 2013, Defendant filed an Opposition (R. Doc. 27), to which Plaintiff replied. (R.
Doc. 38). Defendant then filed a Sur-Reply Memorandum (R. Doc. 39) in response to Plaintiff’s
Reply (R. Doc. 38). For the reasons given below, Plaintiff’s Motion to Compel is GRANTED
IN PART AND DENIED IN PART.
I.

BACKGROUND
In this action, Plaintiff alleges he was terminated by Louisiana State University after 21

years of employment as the head coach of the women’s tennis team. (R. Doc. 1-2). Plaintiff
alleges he was harassed and eventually terminated because of his race (African American) and in
retaliation for opposing racial discrimination. Plaintiff also alleges he received less pay than
Caucasian head coaches of comparable LSU sports and that his pay was disproportionate to other
tennis coaches in the Southeastern Conference (“SEC”). According to Plaintiff, Defendant’s

conduct violated several of his constitutional rights, in addition to 42 U.S.C. § 1981 and Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
On July 8, 2013, Plaintiff served Interrogatories and Requests for Production of
Documents on Defendant. (R. Doc. 26-1 at 8). According to the Federal Rules of Civil
Procedure, Defendant’s responses were due within 30 days of service. Fed. R. Civ. P. 33(b)(2)
(“The responding party must serve its answers and any objections within 30 days after being
served with the interrogatories.”); Fed. R. Civ. P. 34(b)(2)(A) (“The party to whom the request is
directed must respond in writing within 30 days after being served.”). Therefore, Defendant’s
responses were due by August 7, 2013.
Counsel for Plaintiff wrote to Defendant on August 16, 2013 regarding the outstanding
discovery requests and asking that Defendant respond by August 21, 2013. (R. Doc. 26-1 at 9).
Plaintiff’s counsel wrote to Defendant again on August 28, 2013, after Defendant continuously
failed to produce the outstanding responses. (R. Doc. 26-1 at 10). Plaintiff attached a copy of his
proposed Motion to Compel to the August 28, 2013 letter and advised Defendant that he
intended to file it if responses were not produced. (R. Doc. 26-1 at 10).
On August 30, 2013, Defendant’s counsel responded by e-mail to Plaintiff’s letters to
request a 3 week extension. (R. Doc. 26-1 at 11). The e-mail also indicates that Defendant failed
to respond to Plaintiff’s first letter, sent August 16, 2013. (R. Doc. 26-1 at 11). On September 3,
Plaintiff’s counsel responded by advising Defendant “to please forward the responses as soon as
possible.” (R. Doc. 26-1 at 10).
Having not received any discovery responses within the requested 3 week extension,
Plaintiff filed the instant Motion on September 25, 2013. (R. Doc. 26). Plaintiff’s Motion
requests that the Court compel Defendant to respond to his Interrogatories and Requests for

2

Production and sanction Defendant for its failure to respond discovery. (R. Doc. 26-2 at 2).
Defendant filed an Opposition (R. Doc. 27) advising the Court that it provided the
Plaintiff “a full and complete response” to its discovery requests. (R. Doc. 27 at 2). These
responses were provided on October 21, 2013, almost a month after the filing of the Motion to
Compel. Based on its discovery responses, Defendant suggests that “Plaintiff’s Motion to
Compel is moot” and “Plaintiff should be ordered to pay defendant’s reasonable expenses
incurred in opposing the motion to compel.” (R. Doc. 27 at 2, 6). Defendant also accuses
Plaintiff of failing to confer in good faith before filing its Motion to Compel.
After receiving Defendant’s answers to discovery, Plaintiff was granted leave to file a
Reply Memorandum. In his Reply, Plaintiff claims that Defendant’s responses are all either
incomplete or deficient. (R. Doc. 38).
Defendant was provided time to submit a Sur-Reply to address the deficiencies raised by
Plaintiff’s Reply. In addition to its objections to Plaintiff’s discovery requests, Defendant asks
the Court to not consider Plaintiff’s Reply because it vastly exceeds the scope of its Motion to
Compel. (R. Doc. 39).
II.

LAW AND ANALYSIS
Rule 26(b)(1) of the Federal Rules of Civil Procedure allows a party to “obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense.” A relevant
discovery request seeks information that is “either admissible or reasonably calculated to lead to
the discovery of admissible evidence.” McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894
F.2d 1482, 1484 (5th Cir. 1990) (quoting Fed. R. Civ. P. 26(b)(1)) (alterations in original).
Nonetheless, a party may withhold otherwise discoverable information on the basis of privilege.
Fed. R. Civ. P. 26(b)(1).

3

Rule 33 of the Federal Rules of Civil Procedure provides for the service of written
interrogatories. A party seeking discovery under Rule 33 may serve interrogatories on any other
party and the interrogatory “may relate to any matter that may be inquired into under Rule
26(b).” Fed. R. Civ. P. 33(a)(2). Rule 34 of the Federal Rules of Civil Procedure provides for the
discovery of documents and tangible items. A party seeking discovery must serve a request for
production on the party believed to be in the possession, custody, or control of the documents or
other evidence. Fed. R. Civ. P. 34(a). The request is to be in writing and must set forth, among
other things, the desired items with “reasonable particularity.” Fed. R. Civ. P. 34(b).
Unless stipulated to by the parties pursuant to Rule 29 or otherwise ordered by the Court,
the responding party must respond within 30 days after being served with the interrogatories or
requests for production of documents. Fed. R. Civ. P. 33(b)(2) and 34(b)(2)(A). The parties
may not agree, however, to any extension of time that would otherwise “interfere with the time
set for completing discovery.” Fed. R. Civ. P. 29(b).
If a party fails to answer interrogatories or permit inspection as required under Rules 33
and 34, the party seeking discovery may move to compel disclosure and for appropriate
sanctions under Rule 37. An “evasive or incomplete disclosure, answer, or response must be
treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4).
A.

Scope of the Motion to Compel
In order for the Court to fashion the appropriate relief, it must first determine whether the

relief requested by Plaintiff is appropriate and also properly before the Court.
Plaintiff’s Motion to Compel seeks an order compelling Defendants, Board of
Supervisors of Louisiana State University and Agricultural and Mechanical College, Miriam
Segar, Joseph Alleva and Eddie Nunez, to respond to Plaintiff’s outstanding discovery requests.

4

(R. Doc. 26 at 1). As raised in the Opposition (R. Doc. 27 at 1 n.1) and acknowledged in
Plaintiff’s Reply (R. Doc. 38 at 1 n.1), all claims against the individual Defendants, Miriam
Segar, Joseph Alleva and Eddie Nunez, were dismissed on September 18, 2013 (R. Doc. 25).
Plaintiff’s Motion to Compel is therefore DENIED as it relates to any individuals or entities that
are no longer parties in this matter.
In addition, although the relief sought concerns the lack of responses to Plaintiff’s
Interrogatories and Request for Production of Documents (R. Doc. 26-1), in the Memorandum in
Support of Motion to Compel he concludes with an allegation that “[c]ompounding the issue is
the fact Defendant has still not submitted Initial Disclosures.” (R. Doc. 26-2). Despite this
unequivocal representation, Plaintiff provides no background or correspondence regarding this
alleged failure to provide these required disclosures. Likewise, Plaintiff fails to certify that it has
“in good faith conferred or attempted to confer . . . in an effort to obtain” these initial disclosures
without court action. See Fed. R. Civ. P. 37(a)(1).
Contrary to Plaintiff’s claim, Defendant has timely provided its initial disclosures. (R.
Doc. 27-2 at 5-7). Plaintiff later acknowledges that he received those disclosures and used them
to propound his discovery (R. Doc. 38 at 2). For the first time in his Reply, however, Plaintiff
challenges the sufficiency of those disclosures, noting that it has not yet received copies of
documents that were described in those disclosures as promised. (R. Doc. 38 at 9-10).
The sufficiency of the initial disclosures is not properly before the Court. The Motion to
Compel did not raise this issue and the only mention regarding the initial disclosures – a single
sentence in the Memorandum in Support – was inaccurate. Plaintiff’s Motion to Compel is
therefore DENIED as it relates to the initial disclosures pursuant to Rule 26(a)(1) of the Federal
Rules of Civil Procedure.

5

The remainder of the briefing relates to the sufficiency of Defendant’s responses to
Plaintiff’s Interrogatories and Requests for Production of Documents. Defendant argues that
since the filing of the Motion to Compel it has provided the outstanding responses and therefore
the Motion is moot.
Defendant’s responses to Plaintiff’s discovery, dated October 21, 2013, were provided
105 days following the date they were propounded. 1 The responses include a set of generalized
objections to all of the Requests for Production of Documents. Specific objections are raised to
Interrogatory Nos. 4 and 5. 2 Specific objections are also raised to Request for Production Nos. 1,
2, 4, 6, and 7. Plaintiff challenges the sufficiency of all of these responses.
The parties have been given sufficient opportunity to address the discovery responses at
issue as they relate to the Motion to Compel. To do as Defendant suggests – consider the Motion
to Compel moot because partial responses with objections have now been provided, and
presumably require Plaintiff to file a new Motion to Compel regarding those responses to get
relief from the Court – would needlessly delay resolution of the issues in dispute. 3 Considering
the specific facts of this case, the time remaining for discovery under the Court’s Scheduling
Order, and the sufficient briefing regarding the issues, the Court will address the sufficiency of
Defendant’s responses.

1

The Court is not persuaded that “Defendant could only infer” that it was granted “an extension of an indeterminate
time” when the response to its request for an extension of three weeks was “forward the responses as soon as
possible.” (R. Doc. 27). In addition, to the extent such an indeterminate extension could run beyond the deadlines
contained in the Court’s scheduling order, any such stipulation between the parties would run afoul of Rule 29(b) of
the Federal Rules of Civil Procedure.

2

Objections to Interrogatories are appropriate if stated in a “timely objection” unless the court, for good cause,
excuses the failure. Fed. R. Civ. P. 33(b)(4).

3

Although it does not appear to be the case in the instant matter, the course of action suggested by Defendant could
also serve to reward parties that fail to comply timely with their discovery obligations, only to do the minimum
required to avoid an adverse ruling on a Motion to Compel, effectively eliminating significant amounts of time for
the parties to conduct effective discovery.

6

B.

Individual Discovery Reponses
Plaintiff’s discovery requests consist of 5 Interrogatories and 7 Requests for Production

of Documents. (R. Doc. 27-1). In addition to raising specific objections to some of the requests,
Defendant began its responses with generalized, blanket objections to Plaintiff’s entire set of
discovery requests. In his Reply, Plaintiff argues that each of Defendant’s responses to
discovery is deficient.
i.

Interrogatory No. 1

Interrogatory No. 1 asks Defendant to identify any potential trial witnesses, including
rebuttal and/or impeachment witnesses, and to “identify their expected testimony and/or
knowledge regarding this matter.” Defendant responded by providing a list of potential
witnesses and reserving its right to later supplement its response, if necessary. Plaintiff suggests
Defendant’s reservation of its right to supplement its potential witness list fails to “substantially
comply with Rule 26.” (R. Doc. 38 at 2). According to Plaintiff, he “will be completely
hamstrung in identifying witnesses” during discovery “only to have defendants later identify
persons after depositions are completed.” (R. Doc. 38 at 2).
Despite Plaintiff’s contentions, Defendant’s discovery responses are not deficient to the
extent alleged. Rule 26(e)(1) requires a party “to supplement or correct” its discovery responses
“in a timely manner if the party learns that in some material respect the . . . response is
incomplete or incorrect . . . .” Plaintiff’s fear that Defendant might not supplement its responses
until after discovery and leave him “completely hamstrung” is premature. Discovery is still open
and the Court will not assume a party’s future noncompliance with the Federal Rules of Civil
Procedure. Beyond that, the Federal Rules of Civil Procedure are designed to protect against the
very thing Plaintiff describes.

7

Under Rule 37(c)(1), a party who fails to give information “or identify a witness as
required by Rule 26(a) or (e) . . . is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is
harmless.” See Caskey v. Man Roland, Inc., 83 F.3d 418, at *5 (5th Cir. 1996) (“district court
violated its discretion in failing to invoke the mandatory exclusion sanction of Rule 37(c)(1)” by
not excluding defendant’s surveillance tape requested by plaintiff during discovery, but
presented by defendant for the first time at trial); Red Dot Bldgs. v. Jacob Technology, Inc., 2012
WL 2061904, at *3 (E.D. La. June 7, 2012) (Rule 37(c)(1)’s exclusion “is mandatory and
automatic unless the party demonstrates substantial justification or harmlessness.”); Moore v.
BASF Corp., No. 11-1001, 2012 WL 4344583, at *4 (E.D. La. Sept. 21, 2012) (a party is not
excused from its Rule 26 obligations “because it has not fully investigated the case”) (quoting
Fed. R. Civ. P. 26(a)(1)(E)).
As long as Defendant has made a good faith effort to respond to Interrogatory No. 1 and
has disclosed all of the responsive information known, its “reservation” is consistent with Rule
26. Defendant’s response is not deficient in that respect. Plaintiff has raised no other issues
regarding the sufficiency of Defendant’s response. Therefore, Plaintiff’s Motion to Compel is
DENIED as it relates to Defendant’s Response to Interrogatory No. 1.
ii.

Interrogatory No. 2 and Request for Production No. 5

Interrogatory No. 2 and Request for Production No. 5 ask Defendant to identify and
produce “any and all” documents that it may introduce at trial, including documents intended for
impeachment purposes and/or rebuttal. Defendant responds to both discovery requests by
explaining it has yet determined what documents it may offer at trial and reserving its right to
supplement its responses, if necessary, at a later date.

8

Plaintiff’s Motion advises that Defendant’s response is inconsistent with its June 24,
2013 initial disclosures, which actually identified and promised to later produce categories of
potential trial exhibits. Defendant indicates its production of Plaintiff’s “personnel file, payroll
records and written statements lodged against plaintiff,” in response to other requests and admits
it should have clarified that those documents were also responsive to Interrogatory No. 2 and
Request for Production No. 5. (R. Doc. 39 at 11-12).
The Court has reviewed both parties’ memoranda and attachments and finds Defendant
has produced documents potentially responsive to Interrogatory No. 2 and Request for
Production No. 5 in response to other discovery request. Plaintiff’s Motion is therefore
DENIED as to Interrogatory No. 2 and Request for Production No. 5. Nonetheless, to the
extent Defendant has identified additional documents responsive to Interrogatory No. 2 and
Request for Production No. 5 that have not otherwise been produced, Defendant must produce
those documents by December 11, 2013. 4
iii.

Request for Production No. 2

Plaintiff’s Request for Production No. 2 seeks: “A copy of the Plaintiff’s personnel file,
including all wage information, documents signed by [him] and any documents in your
possession relating to plaintiff’s employment with you.” Defendant objects to the request as
overly broad, but still provided a copy of plaintiff’s personnel file and wage information and
advised it is reviewing additional documents and will supplement its response, if necessary.

4

The Court reminds the parties of their on-going obligations to timely supplement their initial disclosures and
responses to discovery. Defendant has known about this case for one year (R. Doc. 1-2 at 16) and has had ample
time to investigate the claims against it. Likewise, it has been over 6 months since Defendant identified 5 categories
of documents in its initial disclosures and explained it was “in the process of compiling” them to produce to
Plaintiff. (R. Doc. 27-2 at 3). Any documents or information not timely produced by either party in accordance with
the Court’s Scheduling Order may potentially be excluded from trial.

9

Plaintiff alleges that Defendant’s response is incomplete because it failed to produce his
2008-2009 and 2010-2011 performance evaluations and his written complaints of discrimination
to LSU. Plaintiff further accuses Defendants of not producing responsive e-mails, which include
several of his complaints of racial discrimination and a response to an “unfounded letter of
reprimand.” 5 (R. Doc. 38 at 6). According to Plaintiff, the emails were in the “Outbox” folder of
his LSU e-mail account when the folder was “mysteriously deleted” after the e-mails were sent. 6
(R. Doc. 38 at 6). Plaintiff represents that he reported the issue to LSU. (R. Doc. 38 at 6).
Defendant does not address the deleted e-mails or missing performance reviews.
The Court finds Defendant’s response sufficient to the extent the entirety of Plaintiff’s
personnel file and wage documents known to Defendant have been produced and therefore
DENIES Plaintiff’s Motion as to Request for Production No. 2. Nonetheless, Defendant
should make every effort to locate any additional responsive documents, including any
performance reviews. 7 If Defendant has identified, but not produced any responsive documents,
Defendant must supplement its Response to Request for Production No. 2 by producing those
documents by December 11, 2013.
The Court now turns to Plaintiff’s allegation that Defendant failed to produce specific emails in his deleted Outbox folder and/or other documents Plaintiff wrote in response to a letter
of reprimand. Even if the Court accepted Plaintiff’s allegations as true, it would still find

5

It is not clear from Plaintiff’s Reply whether the allegedly deleted Outbox folder includes Plaintiff’s response to
the “unfounded letter of reprimand.”

6

Plaintiff’s Reply specifically identifies an e-mail he sent to Joseph Alleva on March 28, 2012 and his February 26,
2008 “rebuttal to Judy Southard, Skip Bertman, Eddie Nunez, Miriam Seger, and Wendy Nall to the unfounded
letter of reprimand.” (R. Doc. 38 at 6).

7

In his complaint, Plaintiff alleges that he never received a performance evaluation for the 2010-2011 season, in
violation of LSU’s own policy. (R. Doc. 1-2 at 4). Plaintiff fails to address this inconsistency in his Motion to
Compel.

10

Defendant’s response sufficient because Plaintiff’s request is overly broad to put Defendant on
notice of these specific documents Plaintiff wants produced.
Rule 34(b)(1)(A) requires a request for production to describe the sought after items with
“reasonable particularity.” “The goal is that the description be sufficient to apprise a man of
ordinary intelligence which documents are required.” U.S. v. Nat’l Steel Corp., 26 F.R.D. 607,
610 (S.D. Tex. 1960). Defendant could not have reasonably understood that Plaintiff was
seeking production of very specific e-mails from a request for “any and all” documents relating
to Plaintiff’s employment. As the requesting party, Plaintiff has an obligation to sufficiently
describe each item or category of items he desires. If Plaintiff wants these documents produced,
he should serve Defendant with a more particularized discovery request. Plaintiff’s Motion to
Compel is DENIED to the extent he seeks to compel production of these e-mails in response to
Request for Production No. 2.
iv.

Interrogatory No. 3

Interrogatory No. 3 asks Defendant to “identify each person, if any, who you may call as
an expert witness” and to disclose the subject matter and factual basis of each expert’s opinion
testimony. Plaintiff does not make any substantive argument or offer any legal authority in
support of his Motion with regards to Interrogatory No. 3. Regardless, the Court will not issue
an order compelling the identification of experts at a time that conflicts with its own Scheduling
Order. (R. Doc. 18). Plaintiff submitted the Status Report containing the expert disclosure
deadlines agreed upon and suggested by the parties, which were adopted by the Court’s
Scheduling Order. (R. Doc. 15) (Defendant must identify experts by February 3, 2014 and
exchange expert reports by February 14, 2014). Plaintiff has also not requested to modify the

11

Scheduling Order or showed the required “good cause” for any such modification. Therefore,
Plaintiff’s Motion is DENIED as it pertains to Interrogatory No. 3.
v.

Interrogatory No. 4 and Request for Production No. 1

Interrogatory No. 4 and Request for Production No. 1 ask Defendant to identify and
produce “all policies in effect” during Plaintiff’s employment “regarding harassment,
discrimination and/or retaliation.” Despite raising general objections, Defendant’s response
directed Plaintiff to LSU’s Policy Statement 1 and Permanent Memorandum 55, located on its
website, www.LSU.edu. (R. Doc. 27-1 at 5-6). Plaintiff believes this response is insufficient
because “PS 1 and PM 55 are LSU System policies” that are not specific to LSU’s Baton Rouge
campus. (R. Doc. 38 at 5). 8 The record is not clear whether any such LSU System Policies also
apply to the LSU Baton Rouge Campus. The discovery requests likewise contain no such
narrow limitation. Defendant’s Sur-Reply clarifies that Policy Statement 1 is not promulgated by
the LSU System, but is specific to Louisiana State University and not system-wide.” (R. Doc. 39
at 10-11).
Assuming Defendant’s response is complete and that these are the only two policies in
effect that have been identified, Plaintiff’s Motion to Compel is DENIED as to Interrogatory
No. 4 and Request for Production No. 1.

8

Plaintiff also suggests that this information is critical because it will be necessary to rebut an assertion of the
Faragher/Ellerth affirmative defense by Defendant. An employer is vicariously liable under Title VII for a
supervisor’s harassment of an employee. If the harassment results in a tangible employment action – i.e., an action
affecting the terms and conditions of employment – the employer is liable, regardless of whether it knew or should
have known of the harassment. When no tangible employment action is taken, a defending employer may raise the
affirmative defense articulated by the Supreme Court in Faragher and Ellerth. See Faragher v. City of Boca Raton,
524 U.S. 775, 807 (1998) (employers are vicariously liable for supervisor's harassment), and Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742 (1998) (same). The Faragher/Ellerth affirmative defense consists of two elements: (1)
the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the
employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the
employer or to avoid harm otherwise. Faragher, 524 U.S. at 807.

12

vi.

Request for Production No. 3

Request for Production No. 3 seeks: “Copies of any and all written or recorded
statement(s) and/or complaints brought or otherwise lodged against the plaintiff.” Defendant
responded by producing 59 pages of “written statements and/or complaints” and explained it is
reviewing additional documents and will supplement its response if necessary. (R. Doc. 27-1 at
6-7). According to Plaintiff, Defendant’s response merely indicates that it has not produced all of
the available documents and those that were produced are largely based on hearsay and written
by Shelly Mullenis, who is not listed as a witness. (R. Doc. 38 at 6).
Defendant’s response is sufficient to the extent Defendant has produced all responsive
documents of which it is aware. Whether these complaints are based on hearsay, as Plaintiff
contends, is largely irrelevant considering that information responsive to discovery requests
“need not be admissible at trial.” Fed. R. Civ. P. 26(b)(1). Therefore, Plaintiff’s Motion to
Compel is DENIED as it pertains to Request for Production No. 3.
vii.

Request for Production No. 4

Request for Production No. 4 asks Defendant to produce: “Copies of any and all
employee complaint(s) regarding harassment of any kind, discrimination of any kind, and
retaliation of any kind for the past 10 years.” (R. Doc. 27-1 at 8). Defendant objects to the
temporal and substantive scope of the request as overly broad and likely to illicit information
protected from production by attorney client and work product privileges. 9 Notwithstanding its

9

Defendant’s “generalized” and “conclusory” statements that the responsive documents might be privileged, are
insufficient to avoid disclosure. See Peacock v. Merrill, No. 08-01, 2008 WL 687195, at *3 (M.D. La. March 10,
2008) (an assertion of privilege “should be sufficiently detailed to allow the opposing party and the court to
determine whether the withholding party has satisfied its burden of demonstrating the existence of the claimed
privilege”); BG Real Estate Servs. v. American Equity Ins. Co., No. 04-3408, 2005 WL 1309048, at *3 (E.D. La.
May 18, 2005) (“the party resisting discovery by asserting any privilege bears the burden of proof sufficient to
substantiate its privilege claims and cannot rely merely on a blanket assertion of privilege”). Defendant’s blanket
and unsupported assertion of privilege prevents any meaningful consideration by the Court. Therefore, it will not be
considered.

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objections, “defendant shows that there have been no race-based complaints filed by any coaches
in the last five (5) years, including any lodged by plaintiff, Anthony Minnis.” (R. Doc. 27-1 at 8).
Plaintiff alleges that Defendant’s “response that Mr. Minnis did not file any
discrimination complaint is false.” (R. Doc. 38 at 7). Plaintiff further argues that 10 years is an
appropriate timeframe if PM 55 is the relevant harassment policy, as Defendant claims, because
PM 55 dates back to the year 2000. (R. Doc. 38 at 7). Plaintiff also points out that a 5 year
temporal scope would exclude complaints by Pokey Chapman, the former African American
head coach of women’s basketball who left LSU in 2008 after raising complaints of race
discrimination. (R. Doc. 38 at 7).
“Other claims of discrimination against an employer have been found relevant to a
discrimination claim if limited to the (a) same form of discrimination, (b) the same department or
agency where plaintiff worked, and (c) a reasonable time before and after the discrimination
occurred.” Willis v. U.S., No. 11-708, 2012 WL 5472032, at *1 n.6 (M.D. La. Nov. 9, 2012); see
also Marchese v. Secretary, Dep’t of the Interior, No. 03-3082, 2004 WL 2297465, at *2 (E.D.
La. Oct. 12, 2004) (same); Mitchell v. Nat’l Railroad Passenger Corp., 208 F.R.D. 455, 460
(D.D.C. 2002) (same). The relevant timeframe may range, depending on the facts of each case.
However, courts have generally limited discovery of other employees’ claims of discrimination
to 3 to 5 years. Gillum v. ICF Emergency Management Services, L.L.C., No. 08-314, 2009 WL
2136269, at *6 n.5 (M.D. La. July 16, 2009) (limiting discovery of other claims of discrimination
to “the past five (5) years”) (collecting cases); Marchese v, Secretary, Dep’t of the Interior, No.
03-3082, 2004 WL 2297465, at *2-3 (E.D. La. Oct. 12, 2004) (3 years).
Considering the parties’ arguments and the applicable law, the Court GRANTS
Plaintiff’s Motion as it pertains to Request for Production No. 4, subject to the following

14

restrictions. Plaintiff’s Request for Production No. 4 is limited to (1) complaints of any type of
racially discriminatory conduct, (2) made by any employee of the athletic department of LSU’s
Baton Rouge campus, including coaches, (3) made between January 1, 2008 and December 31,
2012. The Court uses the term “complaint” in its broadest sense. In other words, a complaint
constitutes any allegation of race discrimination, no matter how informal, including e-mails.
Therefore, Plaintiff’s Motion is GRANTED as to Request for Production No. 4. Defendant
must supplement its Response to Request for Production No. 4 consistent with the Court’s
Order by December 11, 2013.
viii.

Request for Production Nos. 6 and 7

Request for Production Nos. 6 and 7 seek copies of “any and all evaluations and/or
performance reviews” and “NCAA violations” for various head coaches of smaller men’s and
women’s sports between January 1, 1995 to the present. Defendant objects to the request,
arguing that these coaches “are not [sic] the proper comparators to plaintiff in his discrimination
claims.” (R. Doc. 27-1 at 9-10).
A plaintiff may establish a prima facie case of discrimination by showing that other
employees outside of his protected class “who engaged in similar acts,” known as similarly
situated comparators, were treated more favorably. Mayberry v. Vaught Aircraft Co., 55 F.3d
1086, 1090 (5th Cir. 1995) (plaintiff must show that similarly situated employees “were treated
differently under circumstances ‘nearly identical’ to his”). In the context of comparators, the
Fifth Circuit has explained that “nearly identical” circumstances does not equate to completely
“identical,” as such a “requirement would be essentially insurmountable.” Tuner v. Kansas City
Southern Ry. Co. 675 F.3d 887, 893 (5th Cir. 2012) (“This Circuit’s nearly identical standard is
not equivalent to identical.”). Rather, two employees engaged in some conduct of “comparable

15

seriousness” and who, at the time, hold the “same” or “materially” similar responsibilities are
similarly situated comparators. Turner, 675 F.3d at 896 (“Each employee's track record at the
company need not comprise the identical number of identical infractions.”) (internal citations
omitted).
Courts evaluating whether college sports coaches are appropriate comparators have noted
that:
In determining whether men's and women's coaching positions are equal, courts
have looked to such factors as team size, the number of assistant coaches,
recruiting responsibilities, the amount of spectator attendance and community
interest in the sport, the amount of revenue generated by the sport, the degree of
responsibility in the area of public and media relations and promotional activities,
and the relative importance of the sport in the athletic program as a whole.
Weaver v. Ohio State University, 71 F. Supp. 2d 789, 800 (S.D. Ohio 1998) (considering a
disparate pay claim under the EPA) (collecting cases); see also Richardson v. Sugg, 325 F. Supp.
2d 919, 926-27 (E.D. Ark. 2004) (considering levels of “experience, training, education, ability,
effort, and responsibility” to find plaintiff, an African American head basketball coach, and the
university’s Caucasian head football coach were similarly situated comparators in a Title VII
case); Peirick v. Indiana State University-Purdue University Indianapolis Athletics Dep’t, 510
F.3d 681, 690 (7th Cir. 2007) (finding the women’s and men’s tennis coaches were appropriate
comparators in a Title VII case partially because the two had similar duties and there was “no
distinctions in their responsibilities.”); Mehus v. Emporia State University, 326 F. Supp. 2d,
1221, 1228 (D. Kan. 2004) (evidence of whether volleyball, basketball and football programs
were “‘core sports’ which merit preferential funding . . . has clear relevance to plaintiff’s claim
that” both the men’s and women’s basketball coaches “are suitable comparators with regard to
salary.”).

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Considering the applicable law, the coaches listed in Request for Production Nos. 6 and 7
could potentially fall within the realm of similarly situated comparators. In this more unique
context, Plaintiff must rely on information pertaining to coaches of comparative sports and
information regarding these positions is discoverable. As Plaintiff aptly points out, it chose head
coaches of other smaller sports programs and excluded sports like LSU football for obvious
reasons.
The Court therefore finds the documents requested are likely to lead to the discovery of
admissible evidence because they are consistent with the type of evidence considered by courts
to determine if coaches of different sports are similarly situated comparators. See Peirick, 510
F.3d at 689-90 (comparing several coaches’ records of complaints by students and employees,
prior reprimands, prior misconduct, “NCAA rule violations and comments” in their performance
evaluations to determine whether they were similarly situated in a Title VII case). Plaintiff’s
Motion to Compel is GRANTED as it pertains to Request for Production Nos. 6 and 7.
C.

Expenses
Under Rule 37(a)(5)(C), if a motion to compel discovery is granted in part and denied in

part, a court may apportion the reasonable expenses for the motion. Because the Motion to
Compel has been granted in part and denied in part, the parties shall each bear their own costs in
connection with the Motion.
Signed in Baton Rouge, Louisiana, on December 4, 2013.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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