Strong v. Grambling State University et al

Filing 41

ORDER granting 30 Motion to Compel to the extent specified in the body of the ruling. IT IS FURTHER ORDERED that 30 Motion to Compel and for Attorney Fees is otherwise DENIED. Signed by Magistrate Judge Karen L Hayes on 2/6/14. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
AVAINE STRONG

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CIVIL ACTION NO. 13-0808

VERSUS

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JUDGE DONALD E. WALTER

GRAMBLING STATE UNIVERSITY,
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MAG. JUDGE KAREN L. HAYES
ET AL.
MEMORANDUM ORDER
Before the undersigned Magistrate Judge, on reference from the District Court, is a
motion to compel discovery [doc. # 30], and associated request for fees, costs, and/or expenses,
filed by Plaintiff Avaine Strong.1 For reasons assigned below, the motion is GRANTED IN
PART and DENIED IN PART.
Background
On April 18, 2013, Avaine Strong, a professor at Grambling State University, filed the
instant, pro se complaint pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and 1986; Title VII of the
Civil Rights Act; the Equal Pay Act; and 18 U.S.C. § 1346 against his employer, Grambling
State University, and various university officials. (Compl.). On August 1, 2013, Strong
amended his complaint to join each member of the Board of Supervisors for the University of
Louisiana System. See Amend. Compl. Strong contends, inter alia, that university officials
discriminated against him on account of his race, African American, and because he is

1

As this is not one of the motions excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive
of any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil
Procedure, this ruling is issued under the authority thereof, and in accordance with the standing
order of this court. Any appeal must be made to the district judge in accordance with Rule 72(a)
and L.R. 74.1(W).

heterosexual. See Amend. Compl., ¶ 17. He seeks approximately $7.8 million for compensatory
and punitive damages, attorneys fees, interest, and costs. Id.
On, or about October 13, 2013, Plaintiff, now represented by Dianne Hill, propounded
certain discovery requests to Defendants. (M/Compel, Exh. A). On November 8, 2013, defense
counsel, Holly Hargrove, responded to Plaintiff’s Requests for Admission, but objected to
Requests Nos. 8-15, on the grounds that they were irrelevant, and that they were issued only to
harass, intimidate, and embarrass Defendants. (Defs. Response; M/Compel, Exh. B).
On November 18, 2013, Hill wrote a missive to Hargrove in which she defended the
relevance of her requests for admission, and invited Hargrove to telephone her on November 26,
2013, if she remained unable or unwilling to supplement her previous responses. See Nov. 18,
2013, Letter from Hill to Hargrove; M/Compel Exh. C. Hill further advised Hargrove that she
had not received responses to Plaintiff’s other discovery requests. Id.
On November 26, 2013, Hargrove wrote to Hill, acknowledging receipt of her letter.
(Nov. 26, 2013, Letter from Hargrove to Hill; Opp. Memo., Exh.). Hargrove maintained,
however, that she saw no need to supplement her discovery responses. Id.
On December 10, 2013, Hill replied to Hargrove, stating that she still had not received
responses to Plaintiff’s Interrogatories. See Dec. 10, 2013, Letter from Hill to Hargrove;
M/Compel Exh. D. She further noted that she had set a discovery conference for November 25,
2013, but that Hargrove had not telephoned her. Id. Hill provided alternative dates of December
19 or 20 to discuss “these matters.” Id. By December 10, however, Hargrove had resigned her
position with the State. (Opp. Memo., ¶ 6). Needless to say, Hargrove neither responded to
Hill’s letter, nor contacted her thereafter.
Unaware of Hargrove’s departure, Hill filed the instant motion to compel on December

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23, 2013. On January 6, 2014, new counsel enrolled on behalf of Defendants. Thereafter, on
January 20, 2014, Defendants filed their opposition to the motion to compel, in which they argue
that the court should deny the motion on the sole basis that, before filing the motion to compel,
movant failed to make a good faith effort to resolve the matter pursuant to Federal Rules of Civil
Procedure, Rule 37 and Local Rule 37.1. Plaintiff filed her reply memorandum on January 28,
2014. Therefore, the matter is ripe.
Analysis
I.

Obligation to Confer in Good Faith
Rule 37 provides that

[o]n notice to other parties and all affected persons, a party may move for an order
compelling disclosure or discovery. The motion must include a certification that
the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court
action.
FED . R. CIV . P. 37(a)(1).
In addition, Local Rule 37.1 requires that the moving party certify that he or she has conferred in
person or by telephone for purposes amicably resolving the discovery dispute:
[n]o motion relative to discovery shall be accepted for filing unless accompanied
by a certificate of counsel for the moving party stating that counsel have conferred
in person or by telephone for purposes of amicably resolving the issues and stating
why they are unable to agree or stating that opposing counsel has refused to so
confer after reasonable notice.
W.D. LA . LOCAL RULE 37.1.
The court finds that movant substantially complied with the foregoing requirements. At
minimum, Plaintiff’s counsel made it clear in her December 10 letter that she intended December
19 or 20 to serve as dates for a Rule 37.1 discovery conference. She was not aware that defense
counsel had resigned her position. When Plaintiff’s counsel did not receive a call or reply from
opposing counsel, she was not required to forebear filing the instant motion.
3

Once new counsel enrolled on behalf of Defendants, Plaintiff’s counsel offered to extend
Defendants’ deadline to respond to the instant motion to afford Defendants time to respond to the
outstanding discovery. See Reply Memo., pg. 1. Defendants were not amenable to this course of
action.
Finally, the court notes that the motion to compel included the requisite certification that
movant “communicated with counsel for Defendant in an attempt to resolve this matter without
judicial intervention.” (M/Compel, pg. 1).
II.

The Unanswered and Disputed Discovery
Rule 33 provides that a party may serve an interrogatory on another party that relates to

any matter that may be inquired into under Rule 26(b). Fed.R.Civ.P. 33(a). Likewise, Rule 34
dictates that “a party may serve on any other party a request within the scope of Rule 26(b) . . . to
produce . . . any designated documents . . . or any tangible things” that are within the “party’s
possession, custody, or control . . .” Fed.R.Civ.P. 34(a)(1). Pursuant to Federal Rule of Civil
Procedure 36, a party may
serve on any other party a written request to admit, for purposes of the pending
action only, the truth of any matters within the scope of Rule 26(b)(1) relating to:
(A) facts, the application of law to fact, or opinions about either; and
(B) the genuineness of any described documents.
Fed.R.Civ.P. 36(a)(1).
An evasive or incomplete disclosure, answer, or response is treated as a failure to disclose,
answer, or respond. Fed.R.Civ.P. 37(a)(4).
Under Rule 26(b),
[u]nless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense--including the existence, description, nature, custody,
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condition, and location of any documents or other tangible things and the identity
and location of persons who know of any discoverable matter. For good cause, the
court may order discovery of any matter relevant to the subject matter involved in
the action. Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible
evidence . . .
Fed.R.Civ.P. 26(b)(1).
The courts understand the rule to provide for broad and liberal discovery. See Schlagenhauf v.
Holder, 379 U.S. 104, 114-5 (1964); Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385 (1947).
Nonetheless, the scope of discovery is limited by relevance, albeit “relevance” is to be broadly
construed. Wyatt v. Kaplan, 686 F.2d 276, 284 (5th Cir. 1982). Ultimately, the relevance inquiry
ends where it starts; i.e., the relevancy of a discovery request depends upon whether it is
“reasonably calculated” to lead to admissible evidence. Wiwa v. Royal Dutch Petroleum Co.,
392 F.3d 812, 820 (5th Cir. 2004). A party objecting to discovery “must state with specificity the
objection and how it relates to the particular request being opposed, and not merely that it is
‘overly broad and burdensome’ or ‘oppressive’ or ‘vexatious' or ‘not reasonably calculated to
lead to the discovery of admissible evidence.’” Reyes v. Red Gold, Inc. 2006 WL 2729412 (S.D.
Tex. Sept. 25, 2006). Pursuant to Rule 26(c), upon a showing of good cause, a court may issue
an order to “protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense . . .” Fed.R.Civ.P. 26(c).
a)

Interrogatories and Requests for Production

Defendants did not respond or otherwise object to Plaintiff’s interrogatories or requests
for production. Accordingly, within the next 14 days from the date of this order, Defendants
shall respond fully and completely to Plaintiff’s interrogatories and requests for production.2

2

By failing to timely respond to the discovery, and in the absence of good cause,
Defendants have waived their right to object to the discovery requests. See In Re U.S., 864 F.2d
5

b)

Requests for Admission Nos. 8-14

Requests for Admission Nos. 8 and 14 ask Defendants to confirm that Connie Walton and
Danny Hubbard, respectively, engage in homosexual relations. See Req. for Admissions Nos. 8
& 14; Pl. M/Compel, Exh. A. Requests for Admission Nos. 9-13 ask Defendants to admit that
Connie Walton had homosexual relations with certain, named females. See Req. for Admissions
Nos. 9-13; Pl. M/Compel, Exh. A. Defendants object to these requests on the grounds that the
discovery is irrelevant and seeks only to harass, intimidate, and embarrass Defendants. See Defs.
Response, Pl. M/Compel, Exh. B. Specifically, Defendants contend that Plaintiff never
complained to the EEOC that he was discriminated against on the basis of sexual orientation, and
therefore, the claim is precluded. Alternatively, Defendants contend that Walton and Hubbard
are not similarly situated to Strong, and thus, the requested discovery is not relevant.
The undersigned observes that gender discrimination and sexual harassment in public
employment violate the Equal Protection Clause of the Fourteenth Amendment. Southard v.
Texas Bd. of Criminal Justice, 114 F.3d 539, 550 (5th Cir. 1997) (citations omitted). Moreover,
“circuits addressing the issue have allowed plaintiffs suing their public employers for sexual
harassment and sex discrimination to assert claims under both Title VII and section 1983.” Id.
Of course, a government employee need not exhaust administrative remedies before proceeding
against his employer pursuant to § 1983. Jones v. City of Port Arthur, Civil Action No. 12-287,
2013 WL 149706 (E.D. Tex. Jan. 11, 2013).
Liberally construed, the instant complaint sets forth facts sufficient to support an equal

1153, 1156 (5th Cir. 1989).
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protection claim under the Fourteenth Amendment. See Amend. Compl., ¶¶ 2, 14, 17, 32, 36.3
Furthermore, while the Supreme Court has not recognized sexual orientation as a protected class,
a state violates the Equal Protection Clause if it disadvantages someone on the basis of sexual
orientation for reasons lacking any rational relationship to legitimate government aims. See
Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004) (citation omitted) (discussing
discrimination on account of homosexuality).
As to Defendants’ second argument, the court observes that disparate treatment of
similarly situated employees represents one avenue toward establishing unlawful discrimination.
Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005). Furthermore, to establish
a prima facie case of discrimination, plaintiff must demonstrate that (1) he is a member of a
protected class; (2) he was qualified for the position he sought; (3) he suffered an adverse
employment action; and (4) others similarly situated but outside the protected class were treated
more favorably. See Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (citations
omitted).
Here, Plaintiff has not shown that the different individuals identified in Requests for
Admission Nos. 9-13 received preferential treatment under otherwise identical circumstances. In
other words, there is no indication that they are potential comparators.4 Under these
3

In reviewing the pleadings, the court holds the allegations of a pro se complainant to
less stringent standards than formal pleadings drafted by lawyers Haines v. Kerner, 404 U.S.
519, 520, 92 S. Ct. 594, 596 (1972).
4

Indeed, a so-called “true comparator” requires proof of (1) the identity of the other
employee(s); (2) who is not a member(s) of the protected class(es); (3) who was shown
preferential treatment; (4) after engaging in “nearly identical” conduct; (5) which was considered
and reviewed in “nearly identical circumstances;” (6) by the same supervisors and decision
makers. King v. W. W. Grainger, Inc., Civil Action No. 11-016, 2012 WL 777319 (N.D. Miss.
Jan. 26, 2012), appeal dismissed (May 3, 2012), report and recommendation adopted, 2012 WL
777310 (N.D. Miss. Mar. 8, 2012) aff'd sub nom. King v. W.W. Grainger Inc., 502 F. App'x 360
7

circumstances, the court will not compel Defendants to disclose evidence of these individuals’
sexual history. See generally Fed.R.Evid. 412. If, however, at a later date, Plaintiff is able to
demonstrate that one or more of the individuals identified in Requests for Admission Nos. 9-13
otherwise meets the requirements for a “true comparator,” then Defendants shall supplement
their discovery response(s), without the need for further intervention by the court.
With regard to Requests for Admission Nos. 8 and 14, however, the court observes that
both Connie Walton and Danny Hubbard are named Defendants. Moreover, Plaintiff alleges that
Walton was a decision-maker, and that Danny Hubbard was Walton’s lieutenant, who
implemented her decisions. See Amend. Compl. Of course, “[w]hen the decision-maker
involved in employment decisions is also a member of a protected class, this fact creates another
inference that the decision-maker did not make the adverse decision because of the plaintiff's
protected class.” Scott v. Wal-Mart Stores, Inc., Civ. Action No. 07-0487, 2009 WL 367725
(W.D. La. Feb. 12, 2009) (citations omitted) (emphasis added). Thus, Walton and Hubbard’s
sexual orientation remains potentially relevant. Defendants shall respond to Requests for
Admission Nos. 8 and 14 within the next 14 days from the date of this order.5
III.

Fees, Costs, and/or Expenses
The court generally must award reasonable expenses to the prevailing party on a motion

to compel. Fed.R.Civ.P. 37(a)(5)(A). The rule authorizes exceptions, however, for nondisclosures and responses that were substantially justified, or other circumstances that make an
award unjust. Id. The rule further precludes an award for reasonable expenses when the movant
filed the motion before attempting in good faith to obtain the disclosure or discovery without

(5th Cir. 2012).
5

If warranted, the parties may agree to an appropriate confidentiality order.
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court action. Id. Moreover, when, as here, a motion to compel is granted in part and denied in
part, the court may apportion the reasonable expenses associated with the motion. Fed.R.Civ.P.
37(a)(5)(C).
Because of the initially ambiguous Rule 37.1 conference setting, the subsequent
resignation of defense counsel, and the mixed relief obtained by movant, the court is not inclined
to award costs, expenses, and/or fees in this instance.
Conclusion
For the above-assigned reasons,
IT IS ORDERED that the motion to compel discovery [doc. # 30] filed by Plaintiff
Avaine Strong is GRANTED IN PART only to the extent specified in the body of the decision.
IT IS FURTHER ORDERED that the motion [doc. # 30], including the request for fees,
expenses, and/or costs, otherwise is DENIED.
THUS DONE AND SIGNED in chambers at Monroe, Louisiana, this 6th day of February
2014.

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