Castle v. PetSmart, Inc. et al

Filing 31

ORDER Granting in part and Denying in part 23 Motion to Compel; Granting 29 Motion to Extend Scheduling Order, Set Scheduling Order Deadlines. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KELLY A. CASTLE,

Plaintiff,

Case No. 12-14497
HON. GERSHWIN A. DRAIN

vs.

PETSMART, INC.,
et al.,
Defendants.
__________________________________/
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
COMPEL DISCOVERY [#23] AND GRANTING PLAINTIFF’S MOTION TO
CONTINUE DATES [#29]

I.

PLAINTIFF’S MOTION TO COMPEL
A.

Introduction

Presently before the court is Plaintiff’s Motion to Compel Discovery filed on May 30, 2013.
Defendants filed a Response on June 12, 2013 opposing the Motion, stating that Plaintiff’s discovery
requests are overly broad. For the reasons that follow, Plaintiff’s Motion is GRANTED IN PART
and DENIED IN PART.
Plaintiff began working for Defendants in August of 2006 in the Ann Arbor location. She
was promoted to acting manager of PetsHotel in the summer of 2007, and later given the position
permanently. On or about April 7, 2011, Plaintiff notified Angela Clark, the manager of the Ann
Arbor location, that she was pregnant. Plaintiff claims that Clark responded to this news with
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“notable coolness” and was hostile towards Plaintiff afterwards. On April 10, 2011, there was a dog
fighting incident at the pet hotel that Plaintiff managed. This incident was investigated by the
Significant Incident Team (“SIT”), a centralized entity that has authority to investigate incidents that
occur in Defendants’ stores. The SIT is compiled of 14 members, though not every member is
required to take part in a review, nor does SIT keep track of what members did take part in a review.
On April 26, 2011, Plaintiff was terminated based on the recommendation of SIT.
Defendants claim they told Plaintiff at that time the reasons she was fired. During the discovery
process, Defendants produced a copy of the termination notice that explains Plaintiff was terminated
because she admitted to taking actions that were against safety policies and procedures and that she
“built a culture” that allowed associates to violate these rules. Plaintiff maintains that she always
received positive reviews in her position and that she was not responsible for the dog fighting
incident. She claims the actual reason she was terminated was because of her pregnancy. Plaintiff
filed suit on October 11, 2012, alleging wrongful termination under Title VII and the Michigan
Elliott-Larsen Civil Rights Act.
Plaintiff has made several discovery requests in an attempt to establish that she was treated
differently than similarly situated employee because she was pregnant. Specifically, Plaintiff
requested the same “incident details” at the other stores managed by the District Manager, James
Conner. Defendants responded to this request, but Plaintiff complains that many documents
produced were not requested, the documents that were produced related to irrelevant procedures,
and some of the same documents were produced multiple times. Plaintiff also claims that
Defendants failed to produce documents related to Plaintiff’s placement, benefit plans, personnel
policies, and organizational charts. In response, Defendants argue that Plaintiff requests information

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relating to national employees and is entirely too broad. Defendants also dispute that their response
included irrelevant information.
B.

Law & Analysis

The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite
broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Federal Rule of Civil
Procedure 26(b)(1) permits parties to "obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense . . . if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence." FED. R. CIV. P. 26(b)(1).
The first issue for consideration is Plaintiff’s discovery requests regarding treatment of
comparables. The main dispute is whether Plaintiff’s definition of “employees” is too broad. In her
requests, Plaintiff seeks information about employees who could be terminated by the same SIT
representatives that participated in the decision to terminate Plaintiff. Defendants object to this
request because SIT has jurisdiction over about 52,000 employees. Further, Defendants dispute that
SIT took part in the decision to terminate Plaintiff. Instead, Defendants maintain Linda Moore,
Dawn Olsen, James Conner, Todd Barth and Greg Scanlon took part in the decision to terminate
Plaintiff. Citing Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992), Defendants claim
that to be similarly situated an employee must have dealt with the same supervisor, be subject to the
same standards, and engage in the same conduct. Under that framework, Defendants insist that the
only relevant inquiry is the previous actions by the individuals who participated in the investigation
and decision to terminate Plaintiff.
More recent decisions, such as Bobo v. United Parcel Service, Inc., 665 F.3d 741 (6th Cir.
2012), have distinguished the decision in Mitchell. Bobo makes it clear that employees do not need

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to have the same supervisor to be similarly situated. Id. at 751. Rather, all that is required is that
Plaintiff demonstrate that she and her, “proposed comparators were similar in all relevant respects
. . . .” Id.
Employees under the jurisdiction of SIT that were reprimanded for similar conduct satisfy
the demands of Bobo. In the EEOC proceedings, Defendants asserted that SIT recommended
terminating Plaintiff. Since SIT recommended firing Plaintiff, SIT’s recommendations in similar
cases are also relevant. Further, as stated by Defendant, “SIT evaluates high priority pet safety
incidents for potential policy violations in an effort to establish consistency in enforcing policies and
procedures when policy violations are discovered.” This statement makes clear that policy
violations are evaluated on the same guidelines. Defendants concerns about the size of production
is understandable, but they have only their own highly-centralized review structure to blame.
Defendants are correct, however, that Plaintiff is not entitled to all employee files. For a file
to be relevant, the accused misconduct must be of “comparable seriousness.” Id. Without more
information before it, this Court may not provide a detailed list of equivalent violations. This Court
is optimistic that the parties may reach a fair agreement on this issue without further intervention.
As for the interrogatories seeking information regarding Defendants’ treatment of pregnant
employees, Defendants claim that they do not track whether employees are pregnant. If this
information is not maintained, then there is simply nothing for Defendants to produce in response
to these requests. If Defendants do maintain any records of this information, they must produce it,
which includes information such as maternity leave requests made by employees. If Defendants
intend to point towards beneficial treatment of pregnant employees, they must provide that
information as well since Request Nos. 30-31 are reasonable. If Plaintiff has reason to believe that

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Defendants may have additional responsive documents, she is welcome to file another motion.
Finally, Defendants must also produce the information requested by Interrogatory No. 7,
which seeks information relating to other dog fights in stores managed by James Conner. In their
initial objection, Defendants claimed the request is overly broad as it will include incidents that are
not designated as “High Priority.” However, if an incident is not designated as “High Priority,” this
does not necessarily mean it is irrelevant. Presumably, the decision to designate an incident as
“High Priority” is a discretionary act in itself. Plaintiff may attempt to establish that her alleged
misconduct is not typically treated as a “High Priority” incident, which demonstrates unfair
treatment in its own right. In order to conduct this inquiry Plaintiff must be able to compare other
dog fight incidents that were not designated as “High Priority.” Once again, the files must involve
conduct of a similar seriousness as Plaintiff’s alleged misconduct.
The Court will now discuss the Interrogatories relating to Plaintiff’s prima facie case.
Interrogatory No. 4 asks Defendants to specify the policies Plaintiff violated. Defendants respond
that they already notified Plaintiff of the violations when she was terminated and later produced the
termination notice that provided the reasons. Defendants have provided the reasons for termination,
but it appears that Plaintiff seeks a specific list of the exact policies that were violated. This
information is relevant to Plaintiff’s claim and there is no reason for Defendants not to provide what
should be a simple answer.
Interrogatory No. 6 and Requests Nos. 26-28 seek details about incidents that occurred in
the same store on April 10, 2011. Defendants object on the grounds that these other incidents were
not “High Priority,” an objection already dismissed in the discussion of Interrogatory No. 7.
Defendants also argue that these incidents are not at all comparable to the events leading to

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Plaintiff’s termination. Plaintiff requests further information on these incidents on the basis that it
will lead to an understanding of what occurred on April 10, 2011. To the extent that these incidents
are related to the dog fight, then Defendants must provide answers to Interrogatory No. 6. However,
if the incidents are completely independent of the dog fight, then they are irrelevant and Defendants
need not provide answers.
Defendants have already provided an adequate response to Requests No. 2 and 14, which
asks for the personnel file of Plaintiff’s replacement. Defendants have offered to provide the
disciplinary record of Plaintiff’s replacement, which should suffice as it does not appear that there
was a change in the duties of the new manager. Defendants should, however, provide a response
to Request No. 21 if such documentation was kept. Plaintiff seeks information concerning how her
replacement was selected, which could produce relevant information to her claim. That her
replacement was a transfer does not answer why he was chosen to replace Plaintiff. Defendants
should produce whatever documentation there is that outlines the criteria used to make the decision
to hire Plaintiff’s replacement.
Defendants must respond to Request No. 33. Defendants have accused Plaintiff of allowing
a culture of disobeying safety policies and procedures to set in. One way of disputing this claim is
for Plaintiff to demonstrate that she disciplined or counseled associates on safety policies and
procedures, thus Request No. 33 is clearly aimed at relevant information. Defendants object to the
burden of having to review every employee that Plaintiff supervised to determine whether they were
counseled or disciplined by Plaintiff. While this Court does not agree that this is a particularly
burdensome request, Plaintiff should assist Defendants in this inquiry by providing the names of
employees that she remembers counseling or disciplining.

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As to the “Miscellaneous” requests, Interrogatory No. 1 appears to have been answered
already. Defendants detailed the reasons for termination in the notice sent to Plaintiff. Perhaps
Plaintiff is not satisfied with the reasons given, but that is what this case is all about. As to
Interrogatory No. 3, Defendants should, in the spirit of cooperation, provide the description of the
job duties of Plaintiff’s former position rather than refer to documents produced. It appears that
Defendants have already responded to Requests Nos. 6-8, 16, and 35. If Plaintiff is still not satisfied
with the documents provided, then Plaintiff may file another motion.
Defendants must respond to Request No. 9, which asks for the last known address for former
employees that took part in the decision to terminate Plaintiff. Plaintiff’s request is relevant as these
former employees could provide valuable testimony about the motivating factors for Plaintiff’s
termination. Defendants state this is overly broad, but do not provide any reason to think this is the
case. This Court does not believe an “exhaustive search” would be required to provide the last
known address of former employees, nor have Defendants given reason to believe that there are
many former employees who participated in the decision rendering this request unduly burdensome.
Plaintiff may very well want to call these former employees as witnesses and is entitled to know
their last known address.
II.

PLAINTIFF’S MOTION TO CONTINUE DATES
Plaintiff filed the present Motion to Continue Dates on June 28, 2013. Defendants filed a

Response on July 3, 2013. Defendants do not object to Plaintiff’s request for a thirty-day extension
to the discovery deadline. Upon review of the parties’ filings, the Court finds good cause exists for
extending the discovery deadline. Accordingly, the following dates shall govern in this matter:
Discovery cutoff:

August 26, 2013

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Dispositive motion cutoff:

September 17, 2013

Case Evaluation:

September of 2013

Settlement Conference before M.J. Komives:

December of 2013

Motions in Limine due:

December 2, 2013

Final Pretrial Order due:

January 7, 2014

Final Pretrial Conference:

January 14, 2014 at 11:00 a.m.

Trial:

January 28, 2014 at 9:00 a.m.

III.

CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Compel Discovery [#23] is GRANTED IN

PART and DENIED IN PART. Plaintiff’s Motion to Continue Trial Dates [#29] is GRANTED.
SO ORDERED.

Dated: July 12, 2013
S/Gershwin A. Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 12, 2013, by electronic and/or ordinary mail.
S/Tanya Bankston
Deputy Clerk

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