Kennedy v. Parkview Baptist School

Filing 37

RULING denying 29 Motion for an Order Compelling Discovery. Pursuant to Rule 37(a)(5)(B), Fed.R.Civ.P., within 14 days, the plaintiff shall pay to the defendant reasonable expenses in the amount of $400. Signed by Magistrate Judge Stephen C. Riedlinger on 9/18/2014. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MELISSA KENNEDY
CIVIL ACTION
VERSUS
NUMBER 13-478-SCR
PARKVIEW BAPTIST SCHOOL, INC.

RULING ON MOTION TO COMPEL DISCOVERY
Before the court is the Plaintiff’s Motion for An Order
Compelling Discovery.

Record document number 29.

The motion is

opposed.1
Plaintiff Melissa Kennedy filed a Complaint against her former
employer defendant Parkview Baptist School, Inc., alleging claims
of

harassment,

discrimination

and

retaliation

under

the

Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et
seq., and the Americans With Disabilities Act (“ADA”), 42 U.S.C. §
12101, et seq.

Plaintiff was employed as a full-time teacher in

the defendant’s elementary division from August 1, 2007 until her
termination on April 5, 2012.
plaintiff

was

48

years

of

At the time of her termination the
age

and

taught

the

third

grade.

Plaintiff alleged that during the relevant time period Dr. Melanie
Ezell was the school’s headmaster and Jill Cowart was the assistant
headmaster, head of the elementary division and the plaintiff’s
supervisor.

1

Record document number 30.

Plaintiff alleged that during the 2011-2012 school year she
was harassed and treated differently than her co-workers because of
her age and disability.

Plaintiff alleged and that she was

ultimately terminated by Ezell on April 5, 2012 after writing a
grievance letter in which she complained about harassment and the
medical issues she was experiencing because of the stress caused by
the harassment and discrimination.

Plaintiff also alleged that

during the period from August 2009 to May 2012, Cowart displayed a
pattern of replacing employees over the age of forty with employees
in their twenties.
This discovery motion arises out of the Plaintiff’s First Set
of Interrogatories and Request for Production of Document served by
the plaintiff on January 16, 2014.
and

responses

to

the

Defendant provided its answers

discovery

on

February

21,

2014.2

Approximately four months later, in an email correspondence dated
June 26, 2014, the plaintiff asserted that a large number of the
defendant’s responses were deficient and should be supplemented
because all of the information sought would support her claims
and/or undermine the credibility of the defendant’s proffered
legitimate

nondiscriminatory/nonretaliatory

employment

actions.

objections

based

on

Defendant
overbreadth,

2

reasons

essentially
relevancy

for

its

maintained

its

and

privacy,

and

Record document number 29-4, Exhibit 1. Plaintiff served 6
interrogatories and 77 requests for production of documents.
2

asserted that its answers and document production was a complete
and sufficient response to the plaintiff’s discovery requests. The
parties’ efforts to resolve the discovery dispute failed.3
It is not surprising that the plaintiff contends many of the
defendant’s

responses

are

deficient.

From

a

review

of

the

plaintiff’s discovery requests it is apparent that as a whole they
are extremely overbroad.

Plaintiff’s document requests call for

the production of virtually every personnel file and document
related to the employment of every faculty and staff member from
January 2007 to the present. Nevertheless, the plaintiff maintains
that she is entitled to all of the information and documents
requested, and in her motion did not suggest any limitations.

In

light of the plaintiff’s position, it would be both difficult and
inappropriate for the court to attempt to limit each of the
contested document requests so that the information sought would
come within scope Rule 26(b)(1), Fed.R.Civ.P.
amount

to

plaintiff.

the

court

propounding

discovery

Doing so would
requests

for

the

The court cannot rule on a discovery motion with a

wholesale rewriting the plaintiff’s overbroad discovery requests.
For this reason and the additional reasons explained below, with
the exception of Request for Production Nos. 46 and 47, the
plaintiff’s motion is denied.

3

Record document numbers 29-5 through 29-11, Exhibits 2
through 8, respectively.
3

Interrogatory No. 1, Request for Production Nos. 4, 6, 8
- 16, 18, 19, 41, 57 and 58
Review of the motion and memoranda shows that in response to
these extremely broad discovery requests4 the defendant produced
the plaintiff’s personnel file and all other documents related to
the plaintiff’s employment, and referenced documents designated as
PBS 0001-0545 that were provided to the plaintiff.

Defendant

stated that it produced 644 pages of documents in response to the
plaintiff’s discovery requests.
Plaintiff failed to establish that any of these discovery
requests are incomplete or deficient.

There is no basis to order

the defendant to supplement is responses to them.
Request for Production Nos. 22, 62, 63 and 64
Review

of

these

four

document

requests

shows

that

the

plaintiff is seeking production of: (1) all grade books and student
attendance records kept by the plaintiff during her employment with
the defendant from August 1, 2007 through April 5, 2012;5 (2) with
regard to two named students, the grade book and attendance records
4

For example, in Requests for Production Nos. 8-16, 18 and
19, the plaintiff sought production of all documents that support,
contradict, and relate to the defendant’s denial of all the
allegations contained in paragraphs 6-14, 16 and 17 of her
complaint.
In Request for Production No. 41 the plaintiff
requested all of the personnel files for 71 current and former
employees of the defendant. Together, in Requests for Production
Nos. 57 and 58, the plaintiff asked the defendant to produce the
formal and informal performance evaluations for each faculty and
staff member of the school from January 2007 to the present.
5

Requests for Production Nos. 62 and 63.
4

kept by the plaintiff, or any and all third grade teachers;6 and
(3) all documents that support, contradict or relate to the denial
of the allegations contained in paragraph 20 of the Complaint
(which alleged that Cowart told the parents of a student that the
plaintiff was “old school” and graded the “old way,” told the
plaintiff to stop grading so much, and later moved the student from
the plaintiff’s class to another teacher’s class).7

Defendant

essentially argued that these document requests are overbroad,
irrelevant and would infringe on the privacy rights of students.
Defendant also incorporated the arguments contained in its Motion
for a Protective Order.8
Defendant’s arguments have merit.
expansive

and

call

for

the

production

These requests are too
of

a

large

number

of

documents that are not relevant to the issues in this case.
Plaintiff’s requests would require the defendant to produce the
plaintiff’s grade books, her attendance records and the records of
two students covering a five year period.9

6

Request for Production No. 64.

7

Request for Production No. 22.

8

However, a review of

Record document number 14.

9

In her motion the plaintiff attempted to expand Request for
Production No. 22 to include a request for several years of grade
books from second and third grade teachers, for the purpose of
comparing her grading methods with those of her peers.
Record
document number 29-6, Exhibit 3,, p. 7. However, neither Request
for Production No. 22, nor any of the other three requests can
(continued...)
5

the Complaint, arguments and supporting exhibits shows that the
plaintiff’s

allegations

regarding

Cowart’s

statements

about

excessive grading focused on the 2011-2012 school year.10 Plaintiff
failed to explain how grade and attendance records for five years
is reasonably calculated to lead to the discovery of admissible
evidence.
Thus, the only relevant document that falls within the scope
of these requests as written is the plaintiff’s grade book for the
2011-2012 school year.

Nevertheless, it is unnecessary to order

the defendant to produce it.

A review of the defendant’s Motion

for Protective Order shows that the plaintiff already has her grade
book - she provided to the defendant in her response to the
defendant’s discovery requests.11 Therefore, an order to compel the
defendant to produce her grade book, or any additional documents in
response to Request for Production Numbers 22, 62, 63 and 64 is not
warranted.
Request for Production Nos. 42 and 43
Through these requests the plaintiff asked the defendant to

9

(...continued)
reasonably be interpreted to encompass a general request for other
teachers’ grade books. Even if they did, such a request would be
overbroad.
10

Record document number 29-12, Exhibit 9, p. 2; record
document number 29-15, Exhibit 12, p. 3.
11

Record document number 14-1, Memorandum in Support of Motion
for Protective Order, p. 2. Defendant argued that under federal
and state law a student’s educational records are confidential and
must be protected from disclosure. It is not necessary to address
these arguments to rule on this motion.
6

produce all documents related to any complaints made by or about
the plaintiff during her employment. In her motion the plaintiff
merely recited the discovery requests and the same information
included in the summary of deficiencies she provided to the
defendant - a description of the types of employment-related
documents she is seeking.12

In its discovery responses as well as

in its opposition to the motion, the defendant stated that to the
extent the documents exist, it has produced them by providing to
the

plaintiff

documents

in

her
its

entire

personnel

possession

file

concerning

and
the

any

additional

plaintiff’s

job

performance.
Plaintiff’s

motion

does

not

provide

any

arguments

or

explanation which support finding that the defendant’s response to
these document requests is deficient.
Request for Production Nos. 46 and 47
These

document

requests

relate

to

information

about

the

defendant’s corporate assets and liabilities as of April 5, 2012
and net profits for the years 2008 through 2013.

Defendant

objected to production of these financial documents, and the
plaintiff argued that the defendant should be ordered to produce
them because they are relevant to her claim for punitive damages.
In its opposition memorandum the defendant noted that under the
ADEA liquidated damages are available, but punitive damages are

12

Record document number 29-1, Memorandum in Support of
Plaintiff’s Motion for an Order Compelling Discovery, pp. 16-18;
record document number 29-6, Exhibit 3, pp. 9-10.
7

not, and acknowledged that punitive damages can be recovered under
the ADA.13
Defendant recently filed a Motion for Summary Judgment seeking
dismissal of all of the plaintiff’s claims.14

Therefore, the best

course is to deny the motion as to these document requests without
prejudice to the plaintiff re-urging this aspect of the motion
after a ruling is issued on the Motion for Summary Judgment.
Interrogatory No. 4, Request for Production Nos. 48, 51,
56, 67
Through this interrogatory and four document requests the
plaintiff sought: (1) information and documents regarding all
claims,

complaints

and

suits

for

discrimination,

harassment,

hostile work environment or retaliation that have been brought
against the defendant; (2) all documents related to complaints of
bullying and harassment made against the school, administration,
faculty, staff or students during the period from January 2007 to
the present; (3) all complaints made against Cowart, Ezell, the
school board or teachers during the period January 2007 to the
present;

and

(4)

all

documents

related

to

confidentiality

agreements of current and former employees from January 2007 to the
present. Plaintiff’s position is that this discovery would support
her

claims

and

undermine

the

credibility

of

the

defendant’s

legitimate, nondiscriminatory reasons, and would demonstrate a

13

See, E.E.O.C. v. DynMcdermott Petroleum Operations Co., 537
Fed.Appx. 437 (5th Cir. 2013).
14

Record document number 36.
8

“pattern and that this suit is not an isolated situation but rather
a continuous mode of operation for the defendant.”15

Defendant

objected to this discovery asserting that the requests were overbroad, sought irrelevant information, and infringed on the privacy
rights of non-parties.
Defendant’s

objections

breadth are valid.

on

grounds

of

relevancy

and

over

These discovery requests are patently over

broad and not reasonably calculated to lead to the discovery of
admissible evidence. Plaintiff’s claims under the ADA and ADEA are
individual claims for discrimination, harassment and retaliation,
not a pattern or practice claim against the defendant.16

Plaintiff

failed to show how information and documents related to other
employees and claims that are not similar to her allegations and
circumstances would be relevant to proving her individual disparate
treatment claims.

15

Defendant will not be required to provide any

Record document number 29-1, p. 21.

16

What is relevant regarding an individual disparate treatment
claim is the reason or reasons for the particular employment
decisions. That inquiry is governed by the framework of McDonnell
Douglass Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).
Evidence related to the defendant’s actions toward other employees
is only relevant if the employees are similarly situated to the
plaintiff. See, Wyvill v. United Companies Life Ins. Co., 212 F.3d
296, 302-03 (5th Cir. 2000); Celestine v. Petroleos de Venezuela
SA, 266 F.3d 343, 355 (Cir. 2001).
A pattern or practice claim is not a separate and distinct
cause of action, but another method by which disparate treatment
may be shown. However, this method of proof is typically used in
cases brought either by the government or as class actions, and
requires establishing by a preponderance of the evidence that
discrimination was the company’s standard operating procedure.
Celestine, supra.
9

information and documents in response to these discovery requests.
Request for Production Nos. 70 and 76
In these document requests the plaintiff requested production
of all documents related to the reason for her termination, and all
documents from January 2007 to the present from teachers, staff,
parents

and

students

reinstatement.
personnel

that

supported

her

or

requested

her

Defendant stated that it produced the plaintiff’s

file

and

all

documents

related

to

her

employment/

termination, and provided all the documents it has related to the
plaintiff’s employment.
Plaintiff’s motion does not provide any basis to find that the
defendant’s responses to Request for Production Nos. 70 and 76 are
deficient.
Award of Reasonable Expenses
Under Rule 37(a)(5)(B), Fed.R.Civ.P., if the motion is denied
the court must, after giving the opportunity to be heard, require
the movant, the attorney filing the motion, or both to pay the
party who opposed the motion its reasonable expenses incurred in
opposing the motion, including attorney’s fees, unless the motion
was substantially justified or other circumstances make an award of
expenses unjust.
Plaintiff’s motion was not substantially justified, and the
record does not reflect any circumstances that would make an award
of expenses unjust.

Defendant is entitled to reasonable expenses

under Rule 37(a)(5)(B).

Review of the plaintiff’s motion and the

10

defendant’s opposition supports a finding that an award of expenses
in the amount of $400 is reasonable. Should the court later decide
that the defendants must produce financial information this award
of expenses will be adjusted.
Accordingly, the Plaintiff’s Motion for an Order Compelling
Discovery is denied.

Pursuant to Rule 37(a)(5)(B), Fed.R.Civ.P.,

within 14 days, the plaintiff shall pay to the defendant reasonable
expenses in the amount of $400.
Baton Rouge, Louisiana, September 18, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

11