Oates v. Target Corporation

Filing 75

ORDER Regarding 73 Plaintiff's Objections to Magistrate Judge's December 17, 2012 71 Opinion and Order. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAUNDRA OATES,
Plaintiff,
Case No. 11-14837
Hon. Gerald E. Rosen
Magistrate Judge Mona K. Majzoub

v.
TARGET CORPORATION,
Defendant.
_______________________________/

ORDER REGARDING PLAINTIFF’S OBJECTIONS TO
MAGISTRATE JUDGE’S DECEMBER 17, 2012 OPINION AND ORDER
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
February 12, 2013
PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court
By opinion and order dated December 17, 2012, Magistrate Judge Mona K.
Majzoub ruled on motions to compel brought by each party. In objections filed on
December 31, 2012, Plaintiff challenges three aspects of this ruling: (i) the Magistrate
Judge’s denial of Plaintiff’s request that Defendant be compelled to produce records
reflecting other incidents deemed to be “negligent conduct” under Defendant’s employee
counseling and corrective action plan; (ii) the Magistrate Judge’s purported refusal to
require Defendant to produce documents relating to an incident referred to in the
deposition testimony of Andrew Bourassa, a former asset protection manager for
Defendant; and (iii) the Magistrate Judge’s determination that Plaintiff should produce

records relating to financial accounts of which she is either sole or part owner. As
discussed below, the Court sustains the first of these objections in part, and otherwise
affirms the Magistrate Judge’s December 17, 2012 opinion and order.
As her first objection, Plaintiff argues that the Magistrate Judge erred in
determining that Plaintiff was pursuing an overbroad “fishing expedition” in seeking
discovery of all incidents characterized as “negligent conduct” under Defendant’s
employee counseling and corrective action plan, and instead limiting Plaintiff to
discovery as to only those incidents similar to the incident that allegedly led to Plaintiff’s
termination — i.e., “incidents where the [leader on duty] left the store unsecured, locked
someone in the store, or otherwise engaged in conduct similar to Plaintiff.” (12/17/2012
Op. at 8 (internal quotation marks, citation, and alteration omitted).) In support of this
objection, Plaintiff points to evidence that “all conduct falling under the penumbra of
‘negligent conduct’ was to be subject to the same discipline” under Defendant’s
corrective action policy, and she argues that it therefore is appropriate to treat all such
incidents of “negligent conduct” as comparable — and hence discoverable — in
determining whether Plaintiff has identified instances of disparate treatment for similar
actions. (Plaintiff’s Objections at 5.)
The Court agrees in part. As Defendant points out in its response to Plaintiff’s
objections, the “negligent conduct” portion of its counseling and corrective action plan
encompasses a wide variety of employee conduct, much of which — e.g., causing
property damage, failing to report an accident, or misusing a corporate credit card account
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— is wholly dissimilar from the conduct for which Plaintiff allegedly was disciplined and
terminated. (Defendant’s Response at 5.) Thus, the Magistrate Judge did not clearly err
in concluding that Plaintiff’s discovery request was overbroad to the extent that it sought
records as to any and all incidents falling within the wide ambit of “negligent conduct.”
Yet, within this general rubric of “negligent conduct,” Defendant’s corrective
action policy identifies a number of more specific categories of actions that can lead to
discipline. In particular, one such category (number 10) is the failure of an employee to
“use ordinary and reasonable care in the performance of his or her work-related duties,”
(Plaintiff’s Objections at 5 (internal quotation marks and citation omitted)), and
Defendant evidently determined that each of the two incidents for which Plaintiff was
disciplined and then terminated in the fall of 2009 “constituted a failure by Plaintiff to
exercise reasonable care in attending to her duties,” (Defendant’s Response at 6). By
Defendant’s own admission, then, such employee conduct that is deemed a failure to use
reasonable care is treated as “similar” under the company’s corrective action policy. (Id.
at 6.) Accordingly, while the Court agrees with the Magistrate Judge that Plaintiff’s
initial discovery request was overly broad, the Court sustains Plaintiff’s objection to the
extent that she seeks more limited discovery of records relating to disciplinary actions
taken under category number 10 of “negligent conduct” arising from an employee’s
failure to use reasonable care in the performance of his or her work duties.
Plaintiff next challenges the Magistrate Judge’s purported refusal to compel
Defendant to produce documents relating to an incident identified in the deposition
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testimony of Andrew Bourassa, a former asset protection manager for Defendant.
Specifically, Mr. Bourassa testified about an incident in which a boy was locked into one
of Defendant’s stores overnight. Plaintiff notes that such an incident would obviously be
comparable to (and seemingly more severe than) the incident that purportedly led to her
termination, when “an employee remained inside the building for approximately three
minutes after Plaintiff secured the building alarm.” (Plaintiff’s Objections at 6.) Yet, the
Magistrate Judge did not deny discovery as to this incident, but instead observed that
Defendant had claimed an inability to locate any records relating to this incident. (See
12/17/2012 Op. at 7-8.) The Magistrate Judge emphasized that Defendant has a
“continuing duty to supplement its responses should additional information be
uncovered,” (id. at 8), and Defendant likewise represents that it will produce to Plaintiff
any documents it is able to locate regarding this incident, (see Defendant’s Response at
8). Beyond this, however, the Court concurs in the Magistrate Judge’s observation that
Defendant can only be made to “produce the documents that are actually in its possession,
custody, or control.” (12/17/2012 Op. at 8.)1
Finally, Plaintiff takes issue with the Magistrate Judge’s ruling that she must
produce records relating to financial accounts that she owns, either herself or jointly with
her domestic partner. Plaintiff argues that this discovery is unduly intrusive, and that

1

To the extent that Plaintiff means to more broadly object that Defendant should be
compelled to produce records relating to all such “breaches in security” where a leader on duty
locked someone inside one of Defendant’s stores, Defendant correctly observes that the
Magistrate Judge has already ordered the production of such records. (See 12/17/2012 Op. at 8.)
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Defendant can obtain the necessary information concerning her financial status through
the tax returns she has agreed to disclose. Yet, as observed by the Magistrate Judge, there
is evidence to suggest that Plaintiff did not disclose all of her income in her tax returns, so
that the additional financial records sought by Defendant would not be “duplicative of
Plaintiff’s tax returns” and “may cast doubt on [Plaintiff’s] credibility.” (12/17/2012 Op.
at 14.) Against this backdrop, which Plaintiff does not acknowledge in her objections,
Plaintiff has failed to suggest how the Magistrate Judge might have erred in ordering the
disclosure of additional financial records. The Court agrees with Plaintiff, however, that
it is appropriate to redact irrelevant personal information that might be contained within
these records.2
For these reasons,

2

In addition, the production of these records may appropriately be made subject to the
terms of a protective order governing the disclosure and use of confidential information
contained in these records.
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NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiff’s December 31,
2012 objections (docket #73) to the Magistrate Judge’s December 17, 2012 opinion and
order are SUSTAINED IN PART and OVERRULED IN PART, in accordance with the
rulings in the present order.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: February 12, 2013
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on February 12, 2013, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager

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