Burt v. Charter Communications, Inc.
MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Plaintiffs Motion to Compel (ECF No. 17 ) is GRANTED in part and DENIED in part consistent with this Memorandum and Order. IT IS FURTHER ORDERED that Plaintiffs Motion to Compel Request for Productio n number 9 is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Motion to Compel Requests for Production numbers 12 through 15 are DENIED without prejudice, subject to refiling the motion with appropriate memoranda. IT IS FURTHER ORDERED that Plaintiff s Motion to Compel answers to Interrogatory number 8 is GRANTED. IT IS FINALLY ORDERED that Plaintiff's Motion to Compel Requests for Production numbers 3, 7, 8, and 18 are DENIED as MOOT. Signed by District Judge Ronnie L. White on 9/5/2017. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CHARTER COMMUNICATIONS, INC. ,
No . 4:16CV1670 RLW
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs Motion to Compel (ECF No. 17). The
motion is fully briefed and ready for disposition.
This case stems from the termination of Plaintiffs employment as a Human Resources
Director for Defendant Charter Communications, Inc. ("Charter") in the Spectrum Reach
Business Unit. (Compl.
iii! 5, 8, ECF No. 1)
Plaintiff alleges that she submitted a leave request
under the Family and Medical Leave Act ("FMLA"), 29 U.S.C . §§ 2601 , et seq. , to care for her
cancer-stricken husband in the last weeks of his life. (Id. at iii! 10-12) She submitted another
FMLA leave request the following year after experiencing emotional difficulties. (Id. at ifif l 920) Plaintiff alleges that when she returned from leave, her supervisor was hostile toward
Plaintiff. (Id. at iii! 14-17, 21-22) Plaintiff complained about this treatment but alleges that
Defendant did not investigate the retaliation complaint or take any corrective action. (Id. at iii!
23 -24) On January 13, 2016, Defendant terminated Plaintiffs employment, citing an
investigation into complaints lodged against Plaintiff by her staff. (Id. at if 25) Plaintiff asserts
that she was never advised about performance problems or any investigation. (Id. at if 27) She
also claims that men in senior positions received complaints from co-workers, but Defendant
took no corrective action, nor did it terminate their employment. (Id. at iii! 29-32)
On October 26, 2016, Plaintiff filed a Complaint alleging discrimination and retaliation
under the FMLA; discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C.
§§ 12101 , et seq.; and discrimination under the Missouri Human Rights Act ("MHRA"), Mo.
Rev. Stat. §§ 213.010, et seq. On July 10, 2017, Plaintiff filed a motion to compel Defendant' s
complete responses to Plaintiff's First Request for Production of Documents numbers 3, 7
through 9, 12 through 15, and 18, as well as answers to Interrogatory number 8. (ECF No. 17)
Defendant opposes the motion, arguing that it has already produced a significant amount of
documentation which disproves Plaintiff's claims and legal theories. In addition, Defendant
contends that the remaining portions of the requested materials are irrelevant and undiscoverable.
II. Legal Standard
The scope of discovery for actions filed in federal court is set forth in Federal Rule of
Civil Procedure 26. That rule provides:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(l). "The rule vests the district court with discretion to limit discovery if it
determines, inter alia, the burden or expense of the proposed discovery outweighs its likely
benefit." Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003) (citing Fed.
R. Civ. P. 26(b)(l)).
A. Personnel File of Lisa Rice
Plaintiff seeks the personnel file for Plaintiffs supervisor, Lisa Rice. Specifically,
Request for Production number 9 asks Defendant to "produce the following documents relating
to Ms. Rice for the time period January 1, 2012 to January 1, 201 7: complaints, emails or notes
discussing those complaints, performance reviews, any investigation file documents, incident
investigation reports, ethics points summaries, and investigation summary reports." (ECF No.
18) Defendant asserts that it has provided Plaintiff with eight pages of complaints and ethics
points summaries, which represents the entirety of the relevant, non-privileged documents.
Defendant contends that any documents pertaining to Ms. Rice' s work performance, salary
information, and other, private information in her file is not relevant to the present lawsuit.
However, Plaintiff maintains that she is only seeking complaints regarding Ms. Rice in the form
of emails or notes, or any performance reviews regarding Ms. Rice. Plaintiff claims that her
request does not include salary information or other private information.
The Court finds that information regarding complaints, performance reviews, or
investigations of Ms. Rice is relevant to Plaintiffs claim because Ms. Rice supervised Plaintiff
and recommended Plaintiffs termination. 1 Ly och v. Anheuser-Busch Cos., Inc., 164 F.R.D. 62,
69 (E.D. Mo. 1995) (finding that information contained in the personnel file of plaintiffs
supervisor "may be relevant to [p]laintiffs claim and is reasonably calculated to lead to the
discovery of admissible evidence" in employment discrimination case); see also Moss v. Blue
In an addendum to her reply brief, Plaintiff clarifies that she has received notes and an email
chain regarding a conversation between HR Vice President Colleen Judson and Plaintiff.
Plaintiff reported to Ms. Judson that Ms. Rice harassed Plaintiff in connection with her FMLA
leaves. Plaintiff seeks additional documentation regarding Ms. Rice ' s alleged harassment.
Cross & Blue Shield of Kansas, Inc., 241F.R.D.683 , 698 (D. Kan. 2007) (finding personnel
files of those plaintiff alleged were involved in the decision to terminate plaintiffs employment
in an FMLA retaliation suit were relevant and discoverable) . Thus, the Court will order
Defendant to produce documents responsive to Plaintiff's request for production, including all
complaints, emails or notes pertaining to those complaints, and performance evaluations
pertaining to Ms. Rice. The Court notes that it previously entered a Consent Protective Order
which should eliminate any privacy concerns. Ly och, 164 F.R.D. at 69.
B. Personnel Files of Alleged Comparators
Plaintiff also requests production of documents related to Stuart Hopfensburger, Dean
Mutter, Chuck Wise, and Tony Farmer (collectively "Employees"). Plaintiff contends that these
male Employees are comparators because they were employed in the Spectrum Reach Business
Unit at a similar level as Plaintiff and that some experienced family and/or health problems and
received complaints from co-workers. Plaintiff asserts that these male Employees were not
disciplined or terminated. Plaintiff seeks "complaints, incident investigation reports, ethics point
summaries, investigation summaries reports, performance reviews, corrective professional
counseling or discipline, or communications about such complaints."
Rather than argue that the requested documents are or are not discoverable under the
factors set forth in Rule 26(b)(l), the parties present facts and argument pertaining to whether the
Employees are similarly situated to Plaintiff. Defendant contends that they are not similarly
situated, thus any information regarding these individuals is not relevant. Plaintiff, on the other
hand, argues that these "comparators" are similarly situated. Absent from both briefs, however,
is a discussion of how the requested information falls, or does not fall, within the requirements of
Rule 26(b)(l ). For instance, in its response to Plaintiff's Requests for Production in numbers 12
through 15 related to the Employees, Defendant contends that the requests are covered by
attorney-client privilege and/or work product doctrine and are overly broad, unduly burdensome,
not proportional to the needs of the case, and not relevant or reasonably calculated to lead to the
discovery of admissible evidence. (Pl. ' s Mot. to Compel Ex. 1 pp. 6-7, ECF No. 17-1)
However, these arguments are not fully developed in Defendant' s opposition memorandum.
Further, the case upon which Plaintiff relies to support her claim that the Employees ' personnel
files are discoverable does not specifically address whether "complaints, incident investigation
reports, ethics point summaries, investigation summaries reports, performance reviews,
corrective professional counseling or discipline, or communications about such complaints" are
discoverable under Rule 26(b)(l). See Lyoch, 164 F.R.D . at 66-7 (addressing the discoverability
of information regarding the hiring and promoting of similarly situated employees).
Alternatively, the parties have failed to submit any case law in support of the proposition
that a motion to compel is the proper means for the Court to determine whether certain coworkers are similarly situated in a discrimination claim. Instead, the case law presented in both
parties' memoranda addresses whether employees are similarly situated at either the motion for
summary judgment or the trial stage. See, e. g. , Jain v. CVS Pharm., Inc., 779 F.3d 753 (8th Cir.
2015) (affirming the district court' s grant of summary judgment, finding that plaintiff and a coworker were not similarly situated under the MHRA with regard to performance issues); Clark v.
Runyon, 218 F.3d 915 (8th Cir. 2000) (affirming the district court' s grant of judgment as a matter
of law finding, inter alia, that plaintiff failed to demonstrate that individuals were similarly
situated after a bench trial); McGee v. Schreiber Foods, Inc., 502 S.W.3d 658 (Mo. Ct. App.
2016) (finding that evidence presented during trial supported a finding that comparators were
similarly situated to former employee). Therefore, the Court will deny the motion without
prejudice. Further, the Court will instruct the Plaintiff to refile the motion and the parties to file
memoranda addressing the discoverability of the documents requested in Plaintiffs Requests for
Production numbers 12 through 15 in accordance with Rule 26(b)(l).
C. Factual Basis of Affirmative Defens es
Next, Plaintiff seeks to compel the factual basis for each of Defendant's affirmative
defenses, as requested in Interrogatory number 8. Defendant contends that it sufficiently
provided the requested information in its supplemental answers. Plaintiff disagrees, arguing that
Defendant's supplemental responses are vague and incomplete. Specifically, Defendant objects
to the interrogatory as premature, as discovery is in its infancy. Defendant also separated the
interrogatory into 13 separate interrogatories and now argues the number of interrogatories
exceeds the federal limit.
The Court notes the case relied upon by Defendant, Nguyen v. Lowe 's Home Ctrs. , LLC,
No. :15/cv1085 H NLS, 2015 WL 12672153 (S.D. Cal. Nov. 19, 2015), actually supports
Plaintiffs position with respect to providing facts which form the basis of Defendant's
affirmative defenses. In Nguyen, the court granted the plaintiffs motion to compel further
responses to the interrogatory requesting additional facts related to defendant' s affirmative
defenses. Id. at *2. The court found that a party must answer interrogatories regardless of
whether discovery is still continuing. Id. (citation omitted). The Nguye n court noted, "[a] party
may not simply delay answering interrogatories until shortly before trial when all the facts are
known and theories finalized. " Id. (citation omitted). Thus, the court ordered the defendant to
provide responsive information pertaining to its affirmative defenses and to supplement those
responses should it obtain further information. Id.
The Court agrees with the Nguyen court' s decision that a defendant must answer
interrogatories regarding affirmative defenses and supplement those answers as discovery
proceeds. However, specific to the present case, the Court disagrees with the Nguyen court's
finding that the interrogatory should be separated into discrete inquiries to be included in the
federal numerical limit of 25 interrogatories. Id. at **3-5. Absent any authority from the Eighth
Circuit or this district to the contrary, the Court declines to now limit those interrogatories, as
aside from Interrogatory number 8, the interrogatories have already been asked and answered.
Thus, the Court will grant Plaintiffs motion to compel answers to Interrogatory number 8.
D. Organizational Charts and ESI Production
Finally, Plaintiff seeks organizational charts requested in her Request for Production
number 18 and ESI production requested in Plaintiffs Requests for Production numbers 3, 7, and
8. Defendant asserts that it has fully complied with both requests. Plaintiff does not further
respond in her reply brief, and the Court will deny these requests as moot.
IT IS HEREBY ORDERED that Plaintiffs Motion to Compel (ECF No. 17) is
GRANTED in part and DENIED in part consistent with this Memorandum and Order.
IT IS FURTHER ORDERED that Plaintiffs Motion to Compel Request for Production
number 9 is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Motion to Compel Requests for
Production numbers 12 through 15 are DENIED without prejudice, subject to refiling the motion
with appropriate memoranda.
IT IS FURTHER ORDERED that Plaintiffs Motion to Compel answers to
Interrogatory number 8 is GRANTED.
IT IS FINALLY ORDERED that Plaintiff s Motion to Compel Requests for Production
numbers 3, 7, 8, and 18 are DENIED as MOOT.
Dated this 5th day of September, 2017.
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE
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