Simpson v. Boeing Company, The

Filing 50

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion to compel in Sherrard v. Boeing Co., No. 4:13-CV-1015-CEJ, [Doc. #49] is granted. IT IS FURTHER ORDERED that the motion to compel in Simpson v. Boeing Co., No. 4:14-CV-14-CEJ, [Doc. #41] is granted. IT IS FURTHER ORDERED that, no later than October 28, 2015, defendant shall supplement and complete its response to Interrogatory No. 16 by producing to plaintiffs copies of the unredacted resumes of all persons hired for a position as an assembly mechanic at defendants facility in St. Clair County, Illinois, from January 1, 2012, to the present. Signed by District Judge Carol E. Jackson on 10/14/2015. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HULITT SHERRARD, et al.,

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Plaintiffs,
vs.
THE BOEING CO.,

Case No. 4:13-CV-1015-CEJ

Defendant.
__________________________________________________________________
LISA SIMPSON,

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Plaintiff,
vs.
THE BOEING CO.,
Defendant.

Case No. 4:14-CV-14-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motions to compel defendant to
produce certain documents, pursuant to Fed. R. Civ. P. 37(a)(3)(B). The motions
are filed in two related cases, Sherrard v. Boeing Co., No. 4:13-CV-1015-CEJ
(hereinafter, “Sherrard”) and Simpson v. Boeing Co., No. 4:14-CV-14-CEJ
(hereinafter, “Simpson”). Defendant has responded in opposition, and the issues
are fully briefed.
I.

Background
a. The Complaints

On May 24, 2013, three plaintiffs, Tony Bailey, Hulitt Sherrard, and
Demonicel Jackson, all African-American men over the age of forty, brought an
employment discrimination action on behalf of a putative class of similarly situated

persons against defendant The Boeing Company.

[Sherrard, Doc. #1]

Those

plaintiffs were granted leave to file an amended complaint on October 28, 2013.
[Sherrard, Doc. #27] The Court also granted in part defendant’s motion to dismiss
the same day, striking several putative class claims from the amended complaint.
[Sherrard, Doc. #26]

On July 24, 2015, Bailey’s claims were dismissed with

prejudice in accordance with a joint stipulation for dismissal, pursuant to Fed. R.
Civ. P. 41(a)(2). [Sherrard, Doc. #48]
Jackson and Sherrard claim that they and other similarly situated individuals
were rejected for numerous open positions to which they applied at defendant’s
facilities in the “St. Louis metropolitan area.”

Sherrard Am. Compl. ¶ 34.

They

contend that defendant instead hired less qualified or equally qualified white or
younger, or both, applicants to fill those posts.

Following the grant of partial

dismissal, Jackson and Sherrard’s remaining individual claims are that defendant
thus discriminated against them on the basis their race or age, or both, in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.; 42
U.S.C. § 1981; and the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§ 623 et seq. Jackson and Sherrard further allege that defendant’s refusal to hire
them on the basis of their race or age, or both, violated the Missouri Human Rights
Act (MHRA), Mo. Rev. Stat. § 213.010 et seq. Their sole remaining claim on behalf
of the putative class is that defendant discriminated against the members of the
putative class on the basis of their race, in violation of 42 U.S.C. § 1981.
In Jackson and Sherrard’s amended complaint, they assert that, “[v]enue is
proper within this district because the unlawful practices complained of herein
occurred within the counties of the State of Missouri comprising the Eastern District
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of Missouri.” Sherrard Am. Compl. ¶ 5. Sherrard also alleges, however, that his
claims arose, in part, from defendant having rejected him for a position as an
assembly mechanic.

Id. ¶ 21.

It is undisputed that the assembly mechanic

position was located in defendant’s facility in St. Clair County, Illinois.
On January 3, 2014, plaintiff Lisa Simpson, an African-American woman over
the age of forty, brought a separate action on behalf of a putative class of similarly
situated persons against the same defendant. Like Jackson and Sherrard, Simpson
claims that she and other similarly situated individuals were rejected for numerous
positions at defendant’s facilities in the “St. Louis metropolitan area.”

Simpson

Compl. ¶ 30. Simpson alleges that defendant instead hired less qualified younger,
white, and male (or some combination thereof) applicants to fill those positions.
She asserts that defendant discriminated against her and the putative class on the
basis of their race, age, and gender, in violation of Title VII, 42 U.S.C. § 1981, the
ADEA, and the MHRA.
In her complaint, Simpson asserts that, “[v]enue is proper within this district
because the unlawful practices complained of herein occurred within the counties of
the State of Missouri comprising the Eastern District of Missouri.” Id. ¶ 5. Simpson
also alleges, however, that her claims arise, in part, from defendant having rejected
her application for the St. Clair position. Id. ¶ 22(c).
b. The Charges of Discrimination
Before filing suit in July 2012, Jackson and Sherrard filed charges of
discrimination with the Missouri Commission on Human Rights (MCHR). At Jackson
and Sherrard’s request, those charges were then forwarded to the Equal
Employment Opportunity Commission (EEOC).
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In the charges, they alleged race

and age discrimination claims against defendant. Among Sherrard’s allegations was
that defendant discriminated against him when it hired “less qualified younger
Caucasians” instead of him for the St. Clair position, which he had applied to on
January 20, 2012.

[Sherrard, Doc. #12-3]

On August 24, 2012, the defendant

responded to an EEOC inquiry about Sherrard’s charge by providing information
concerning applicants to St. Clair position. [Sherrard, Doc. #49-1 at 2–3]
On July 18, 2012, Simpson also filed a charge of discrimination with the
MCHR, which was then forwarded to the EEOC at her request. She alleged race,
sex, and age discrimination claims against defendant.

Among other things, she

contended that defendant discriminated against her when it hired a younger white
male instead of her for the St. Clair position.

[Simpson, Doc. #12-1 at 2]

Defendant’s August 30, 2012, response to the MCHR’s inquiry into Simpson’s
charge provided information regarding applicants to St. Clair position. [Simpson,
Doc. #44-1 at 2–3]
c. Discovery
A combined Case Management Order setting forth deadlines for pre-class
certification Phase I discovery was issued on July 17, 2014. At the parties’ request,
on December 17, 2014, and again on May 8, 2015, the Court amended the Case
Management Order to extend the deadline for Phase I discovery. The deadline was
most recently extended to August 12, 2015.
Sherrard and Simpson’s (hereinafter referred to collectively as “plaintiffs”)
identical

Interrogatory

information:

No.

16

requested

defendant

produce

the

following

“For each job opening that [plaintiffs] applied for from January 1,

2012 to current, please state with specificity the reason the successful applicant
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was chosen over [plaintiffs].

If such reason is that the applicant was more

experienced, please identify the specific experience each successful applicant
possessed.”

[Sherrard, Doc. #50-1 at 2; Simpson, Doc. #41-13 at 1]

It is

undisputed that Sherrard applied for the St. Clair position on January 20, 2012, and
he was rejected.

It is also undisputed that Simpson applied for the St. Clair

position on March 14, 2012, and she was similarly rejected.
Yet, in response to Interrogatory No. 16, defendant did not identify
Sherrard’s application for the St. Clair position in its initial response.

Instead

defendant provided an incomplete answer, identifying only that Sherrard had
applied to two positions in St. Louis after January 1, 2012. [Sherrard, Doc. #50-1
at 2–3] Similarly, defendant did not identify Simpson’s application for the St. Clair
position in its initial response.

Instead defendant again provided an incomplete

answer, identifying only that Simpson had applied to four positions in St. Louis after
January 1, 2012. [Simpson, Doc. #41-12] In both responses, defendant implicitly
admitted that its answers were incomplete; it committed itself to “further
respon[d],” specifically to “produc[ing] responsive, non-privileged documents from
which a further response to Interrogatory No. 16 can be derived,” pursuant to
“Federal Rule of Civil Procedure 33(d).” [Sherrard, Doc. #50-1 at 2–3; Simpson,
Doc. #41-12]
Defendant produced to plaintiffs nearly 20,000 documents. In response to
Interrogatory No. 16, and consistent with the parties’ continued negotiations during
discovery, defendants produced redacted versions of the resumes of individuals
who were hired for positions at several of defendant’s facilities in the St. Louis

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metropolitan area. Defendant redacted applicants’ names from the resumes, and
plaintiffs subsequently sought unredacted versions of the resumes.
On July 29, 2015, defendant informed plaintiffs that it would supplement its
production to Interrogatory No. 16 with “electronic copies of resumes for all the
people hired for the requisitions placed at issue by the complaints in the Sherrard
and Simpson cases.”

[Simpson, Doc. #41-5 at 1]

The next day, defendant

produced unredacted versions of the resumes of hires for all but the St. Clair
position. Five days later, on August 5, having discovered during their review of the
supplemental production that the resumes of those persons hired for the St. Clair
position were not produced, plaintiffs requested defendant turn over those withheld
resumes.

The next day, defendant responded that it was unwilling to produce

those resumes because, in its view, “[p]laintiffs limited their claims to only Missouri
requisitions[.]” [Simpson, Doc. #41-8]

The defendant took this position despite

the fact that during Simpson’s deposition in June of 2015, defendant’s counsel
asked Simpson at least a dozen questions about the St. Clair position mentioned in
her complaint. [Simpson, Doc. #41-10]
On August 7, the parties met to depose one of defendant’s employees, at
which time they discussed their relative positions on the production dispute. The
parties did not reach agreement on the production dispute at the deposition,
[Simpson, Doc. #41-11], nor during an e-mail exchange later that day. [Simpson,
Doc. #41-12] Defendant insisted on August 7 that it has “always understood these
cases to be [about] Missouri jobs only . . . .” Id.
Having reached an impasse in their attempts to resolve the discovery dispute
without court intervention, on August 14, 2015, Simpson filed the instant motion to
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compel, and Sherrard did the same four days later. They seek an order compelling
the defendant to produce unredacted resumes for all persons hired for the St. Clair
position after January 1, 2012. [Sherrard, Doc. #49; Simpson, Doc. #41]
II.

Legal Standard

Rule 37(a)(3)(B)(iii), Fed. R. Civ. P., permits a party seeking discovery to
“move for an order compelling an answer, designation, production, or inspection” if
“a party fails to answer an interrogatory submitted under Rule 33[.]” Rule 37(a)(4)
further provides that an “evasive or incomplete disclosure, answer, or response
must be treated as a failure to disclose, answer, or respond.”
Rule 33(a)(2) authorizes interrogatories “relate[d] to any matter that may be
inquired into under Rule 26(b).” Rule 33(d) permits a party to complete its answer
to an interrogatory by producing documents:

“If the answer to an interrogatory

may be determined by examining . . . a party’s business records . . . , the
responding party may answer by . . . giving the interrogating party a reasonable
opportunity to examine and audit the records and to make copies, compilations,
abstracts, or summaries.” Rule 26(b) in turns governs the scope of discoverable
material that may be inquired into by interrogatory or otherwise.

Rule 26(b)(1)

provides:
Unless 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, 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 . . . .

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Subject to those rules, a court “has broad discretion with regard to discovery
motions,” and a decision on a discovery motion will be upheld “unless, considering
all of the circumstances, [the] ruling [is] a gross abuse of discretion, resulting in a
fundamental unfairness at trial.” United States v. Washington, 318 F.3d 845, 857
(8th Cir. 2003) (quotation marks and citation omitted); see In re Baycol Prods.
Litig., 596 F.3d 884, 888 (8th Cir. 2010). To that end, all three Case Management
Orders issued in these cases provide as follows:
Motions to compel and other motions relating to discovery shall be
pursued in a diligent and timely manner, but in no event filed more
than fifteen (15) days following the event (e.g., failure to answer
interrogatories, objections to request for production, etc.) that is the
subject of the motion. Except for good cause shown, any discovery
motion that is not timely filed and any discovery motion that is filed
after the discovery deadline will not be considered by the Court.
III.

Discussion
a. Timeliness

Defendant first argues that the motions are untimely because they were filed
more than 15 days after the event that gave rise to the motions. As set out above,
defendant agreed to produce documents responsive to Interrogatory No. 16.
pursuant to Rule 33(d). The parties then diligently embarked on negotiations with
respect to the redaction of the resumes and the production of the St. Clair resumes.
The parties did what they were supposed to do—confer in good faith in an attempt
to resolve their discovery dispute without judicial intervention. See Fed. R. Civ. P.
37(a)(1); E.D. Mo. L.R. 3.04(A). It was not until August 6 that it became clear that
they were at an impasse. The Court finds that the instant motions—filed on August
14 and 18—were timely.

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b. Rule 33(d)
Defendant also argues that the motions are improper because plaintiffs seek
to compel production of materials they never requested under Rule 34. The instant
motions are based on defendant’s failure to answer Interrogatory No. 16
completely, not on defendant’s failure to produce documents pursuant to Rule 34.
Rule 33(d) permits a party to complete its answer to an interrogatory by producing
documents in lieu of a written response.

Regardless of how a party chooses to

respond, however, it is obligated to respond completely to the interrogatory in
question. See Fed. R. Civ. P. 37(a)(4).
Here, in response to Interrogatory No. 16, defendant stated unequivocally
that it was opting to “produce responsive, non-privileged documents from which a
further response to Interrogatory No. 16 can be derived,” pursuant to “Federal Rule
of Civil Procedure 33(d).” [Sherrard, Doc. #50-1 at 2–3; Simpson, Doc. #41-12]
Thus, defendant implicitly admitted that its answer to the interrogatory was
incomplete as written. In lieu of providing a complete answer, defendant availed
itself of the option to produce documents from which the answer could be
ascertained.

When defendant did not produce the documents or supplement its

answer to the interrogatory, it failed to respond completely. To complete its
response, defendant was obligated to furnish written responses, unredacted
resumes, or other documents regarding persons hired for the St. Clair position,
because Sherrard and Simpson both applied to that position after January 1, 2012.
Thus, the documents plaintiffs seek are squarely within the ambit of defendant’s
election to respond by a Rule 33(d) production, which production remains
incomplete, and Rule 34 has no bearing on the instant motions.
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c. Scope of the Claims
Finally, defendant argues that the St. Clair position is outside the scope of
plaintiffs’ claims.
administrative

The Court disagrees for several reasons.

charges

of discrimination

unequivocally state

First, plaintiffs’
that defendant

discriminated against them when they applied but were rejected for the St. Clair
position. Defendant was thus on notice from the dates plaintiffs’ filed their charges
with the MCHR and EEOC that defendant’s hiring practices in its St. Clair County,
Illinois facility were at issue.
Second, that plaintiffs initially filed those charges with the MCHR, not the
EEOC, is irrelevant. Plaintiffs live in Missouri, so it was natural for them to file here,
particularly

because

antidiscrimination laws.

some

of

their

claims

were

based

on

Missouri’s

But the administrative charges alleged discrimination on

the basis of federal law as well. And it is undisputed that plaintiffs requested that
their charges be forwarded to and filed with the EEOC for federal investigation.
Further, their charges were indeed presented to the EEOC, in accordance with the
work-sharing agreement between the MCHR and the EEOC. See Brooks v. Midwest
Heart Grp., 655 F.3d 796, 850–51 (8th Cir. 2011).

Thus, the fact that plaintiffs

initially filed their charges with the MCHR instead of the EEOC does not support
defendant’s

contention

that

plaintiffs

did

not

assert

federal

employment

discrimination claims with regard to the St. Clair position.
Third, defendant was on notice that the St. Clair position was at issue when
these lawsuits were filed.

In the amended complaint, Sherrard alleges that his

claims arose, in part, from defendant having rejected him for a position as an
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assembly mechanic—an undisputed reference to the St. Clair position.
Am. Compl. ¶ 21.

Sherrard

In her complaint, Simpson specifically alleges that she was

rejected for the St. Clair position. Simpson Compl. ¶ 22(c). Relatedly, as with their
charges to the MCHR and EEOC, the fact that plaintiffs asserted some Missouri
antidiscrimination law claims in their complaints is not dispositive of whether they
raised federal antidiscrimination law claims with regard to the St. Clair position in
Illinois.
Fourth, the Court is unconvinced that defendant did not know the St. Clair
position was at issue in these cases. Defendant confirmed that the position was at
issue when it produced reports in 2012 to rebut plaintiffs’ charges of discrimination,
reports in which it provided information about persons hired for the St. Clair
position.

The defendant confirmed that understanding again at Simpson’s

deposition in June of 2015 when its counsel asked Simpson at least a dozen
questions about the St. Clair position.

Defendant cannot now claim that it has

always believed the St. Clair position was outside the scope of the lawsuits when it
has repeatedly attempted to defend against the claim that its hiring practices for
that position were discriminatory.
Finally, defendant claims that by asserting venue is proper in this district,
plaintiffs necessarily limited their claims to defendant’s employment practices in
Missouri.

The federal venue statute, 28 U.S.C. § 1391, provides only the

prerequisites for venue. It is axiomatic that venue may be proper in more than one
district, and in more than one state. See, e.g., Woodke v. Dahm, 70 F.3d 983, 985
(8th Cir. 1995). Thus, it does not follow that because plaintiffs asserted venue was
proper in this district (i.e., that “a substantial part of the events” occurred in
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Missouri, 28 U.S.C. § 1391(b)(2)) plaintiffs were necessarily asserting that their
claims arose out of Missouri alone.
*****
For the reasons discussed above,
IT IS HEREBY ORDERED that the motion to compel in Sherrard v. Boeing
Co., No. 4:13-CV-1015-CEJ, [Doc. #49] is granted.
IT IS FURTHER ORDERED that the motion to compel in Simpson v. Boeing
Co., No. 4:14-CV-14-CEJ, [Doc. #41] is granted.
IT IS FURTHER ORDERED that, no later than October 28, 2015,
defendant shall supplement and complete its response to Interrogatory No. 16 by
producing to plaintiffs copies of the unredacted resumes of all persons hired for a
position as an assembly mechanic at defendant’s facility in St. Clair County, Illinois,
from January 1, 2012, to the present.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 14th day of October, 2015.

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