Anderson v. Cabela's, Inc.

Filing 35

ORDER denying 24 Motion to Compel; denying 33 Motion to Extend. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DENNIS M. ANDERSON,
Plaintiff,
v.
CABELA’S, INC.,
Defendant.

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4:11CV3022

MEMORANDUM AND ORDER

The plaintiff has moved to compel the defendant to provide full and complete answer
to plaintiff’s Interrogatories No. 1, 2, 3, and 4. (Filing No. 24). The plaintiff also requests
sanctions, including an award of attorney fees and costs, and the summary denial of the
defendant’s pending motion for summary judgment.

On August 24, 2011, the plaintiff served four interrogatories on the defendant. At the
defendant’s request, the plaintiff granted the defendant an extension of time to answer the
discovery requests. On October 3, 2011, the defendant responded as follows:

Interrogatory No.1: Please provide a list of all employees who were assigned
BCE 1 goals from January 2008 forward. For each employee listed, please state

1

BCE is an acronym for “business continuity exercise.”
A BCE is a logistical exercise that involves switching between main
and systems practiced in the event an actual problem arises with
Cabela's main system that necessitates making this switch. BCE's are
performed at regular intervals throughout the year and consist of two
phases. The first phase of the BCE is the switch from utilization of
Cabela's main computer processor to backup processors. The second
phase (which usually occurs within a few days of the first phase) is
the switch back to Cabela's main processor. This process is extremely

their job title, when the goal was assigned, whether the goal was completed
successfully, whether additional compensation was available for performance
a BCE goal, and what compensation was provided for performance toward a
BCE goal.
ANSWER: Cabela's objects to this interrogatory on the basis that it is
vague, unduly burdensome, overbroad and not likely to lead to the
discovery of admissible evidence. It would be extremely time intensive,
if not impossible, to determine if any of these employees had ever, in
any context, been assigned a "BCE goal from January 2008 forward."
After discussions were held between counsel, as of November 1, 2011, the plaintiff
agreed to limit this request to Cabela’s Sidney location. The plaintiff explains that he is
seeking specific information regarding other similarly situated employees who were assigned
a BCE goal. Filing No. 26, p. 6.

The defendant continues to object to the interrogatory as overly broad, unduly
burdensome, and the information requested is irrelevant. The defendant argues: “No
showing has been made of how all Cabela’s employees that are employed in one of the several
locations comprising Cabela’s world headquarters in Sidney, Nebraska are comparators of
Plaintiff and similarly-situated.” Filing No. 32, p. 6. The defendant also states that the
plaintiff’s former manager, Tammy Harms, “does not recall assigning a BCE-related goal in
an annual performance evaluation to any of the other employees she supervised.” Filing No.
25-5, p. 1.
The defendant’s position is correct. The plaintiff was a computer operator in the
defendant’s Sidney, Nebraska corporate office, (filing no. 1-1, ¶ 7), and due to the degree of
detail required for his job, claims he could not timely perform his BCE goal due to macular

complex and requires the involvement of numerous Cabela's
employees at various stages.
Filing No. 30-1, ¶ 7.

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disorder which limited his eyesight. The plaintiff’s interrogatory is not limited to computer
operators–the people who would most likely be “similarly situated” to the plaintiff. Requiring
the defendant to research and disclose detailed information for every employee assigned a
BCE goal is overbroad and exceeds the relevancy requirement of the discovery rules,
particularly where the plaintiff’s manager acknowledges that she did not assign a BCE-related
goal to any other employee’s annual performance evaluation.2

Interrogatory 2 and defendant’s response are as follows:
Interrogatory No. 2: Please provide a list of employees whose job
descriptions were eliminated from January 2009 to the present. For each
employee listed, please state whether they were reassigned to positions with
ajob description, and if so, state the job description and whether their
compensation changed with their change in duties.
ANSWER: Cabela's objects to this. interrogatory on the basis that it is
vague, unduly burdensome, overbroad and not likely to lead to the
discovery of admissible evidence. As stated above, Cabela's employs
more than 14,000 employees internationally and alters, modifies or
replaces parts or complete job descriptions for employees as necessary
and determined based on business needs. It would be extremely time
intensive, if not impossible, to determine what "job descriptions [had
been] eliminated from January 2009 to the present."
After discussions were held between counsel, the plaintiff agreed to limit this
discovery request to the employees at Cabela’s Sidney location. However, the defendant
asserts that the interrogatory remains overly broad, unduly burdensome, and the information

2

The plaintiff’s reply brief argues: “In the Defendant’s Brief is Support of Motion for

Summary Judgment, the Defendant cites to facts directly related to this request.” Filign No. 34, p.
3. The plaintiff cites to a specific location in the defendant’s brief when making this claim. The
court has read defendant’s summary judgment brief and did not find any reference to BCE goals
assigned to other Cabela’s employees.

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requested is irrelevant. The defendant explains: 1) as to all employees, job descriptions are
formally and informally evaluated and, if appropriate, modified on a continuous basis; 2)
Cabela’s does not formally track changes to job descriptions; 3) there is no method for
Cabela’s to determine which employees' "job descriptions were eliminated;" and, 4) even if
the defendant could answer this interrogatory, the plaintiff has admitted that any changes to
his job description were not limited to him, but were universally applicable to all employees
in the departments being consolidated. Filing No. 25-5, p. 1-2.

The plaintiff’s complaint alleges, “On or about June 2009, Plaintiff was informed that
his job description ‘no longer existed’ and he would be moved to an undetermined department
at the pay rate of his initial hiring.” Filing No. 1-1, ¶ 17. The plaintiff argues the defendant
must respond to interrogatory 2 because “[k]nowing if others had their job descriptions
eliminated and whether or not a reduction in pay typically accompanied an elimination of job
description and modification of job duties is directly related” to the plaintiff’s retaliation
claims. Filing No. 26, p. 7.

After considering the parties’ arguments, the court finds the defendant’s argument is
correct. The plaintiff’s interrogatory is not limited to the defendant’s job or any consolidation
of Cabela’s IT department. The plaintiff admits that he was assigned additional duties, and
his job description was modified in mid-2009, due to the consolidation of departments with
Cabela’s IT department. He admits that the consolidation affected the job duties of
approximately ten employees, including the plaintiff’s. Filing No. 30-7, pp. 126-29. The
plaintiff’s interrogatory is not, however, tailored to this circumstance.

As drafted,

interrogatory 2 is overbroad and exceeds the boundary of relevant discovery.3

3

The plaintiff’s reply brief states:
The Defendant then argues in their Brief in Support of Motion for Summary
Judgment that “as a result of this combination, the current job titles and

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Interrogatory 3 and defendant’s response of record are as follows:

Interrogatory No. 3: Please provide a list of employees who were not
immediately granted their full bonus, but provided the rest of their bonus at a
later date. For each employee listed please state when the portion of their bonus
was paid, when the remainder of their bonus was paid, the reason they were
initially only paid a portion of their bonus, and the reason they were paid the
rest of their bonus.
ANSWER: Cabela's objects to this interrogatory on the basis that it is
vague, unduly burdensome, overbroad and not likely to lead to the
discovery of admissible evidence. As stated above, Cabela's employs

descriptions of all individuals in each department, approximately 10 total,
were being phased out and replaced with new ones reflecting any changed
duties.” This argument relies directly upon the specific information that is
requested by the Plaintiff, and the information that the Defendant has in bad
faith objected to providing.
Filing No. 34, p. 2.

If plaintiff actually wanted “the specific information” for the 10 persons referred to in the
defendant’s brief and known by the plaintiff himself, (filing no. 30-7, pp. 126-29), the plaintiff
should have limited the interrogatory as such during discussions with defense counsel. Even as
limited by plaintiff’s counsel, interrogatory 2 asks for information well beyond the 10 persons whose
jobs were altered when Cabela’s IT department was consolidated.

Although the defendant could have provided the information as to these 10 individuals, the
plaintiff chose to pursue information for all employees at Cabela’s Sidney location and the defendant
chose to stand on its objections. Therefore, the issue before the court is whether the defendant must
comply with the plaintiff’s request as drafted and then limited by the plaintiff. The court finds the
defendant need not comply with the plaintiff’s request, and it did not act in bad faith by standing on
its objections in light of the plaintiff’s position.

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more than 14,000 employees and awards bonuses on an entirely
discretionary basis. It would be extremely time intensive, if not
impossible to determine whether, at any time in the Company's
fifty-year history, an employee's discretionary bonus had been
reevaluated and additional discretionary bonus paid.
After discussions were held between counsel, the plaintiff agreed to limit this
discovery request to Cabela’s Sidney location and to the time period of 2008 to present. The
plaintiff asserts he was denied a full bonus as a result of his inability to complete the BCE
exercise, one of his assigned goals, and he complained about the discrimination of being
assigned a goal which he was physically incapable of successfully completing. Although the
plaintiff admits he was eventually paid the full bonus amount, he claims the delay is relevant
because the payment was not made until he threatened legal proceedings.
The defendant asserts that the interrogatory remains overly broad, unduly burdensome,
and the information requested is irrelevant. In a letter sent before the motion to compel was
filed, the defendant explained that all bonuses are discretionary, and while a “target bonus”
may be established as part of an employee's performance profile and development review,
“full bonuses” do not exist. Rather, several factors are considered in determining whether and
to what extent the employee is entitled to a bonus. That said, in answer to the plaintiff’s
question, Cabela’s identified the fourteen employees who received “one discretionary bonus
based on achievement of assigned goals and within that same year were provided with an
additional bonus payment based on achievement of assigned goals.” Filing No. 25-5, pp. 23. In a supplemental interrogatory response, the defendant stated: “No records of the various
reasons for these bonus payments are maintained by Cabela's.” Filing No. 25-6, p. 3.

After the plaintiff’s motion to compel was filed, the defendant supplemented its
response to interrogatory 3. Cabela’s explained that “[d]espite not maintaining any records
of the reasons for these additional payments, . . . Cabela’s conducted extensive interviews of
its employees to determine the reasons for these payments” (Filing No. 32, p. 10). The
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information obtained from these interviews was provided in Cabela’s second supplement to
interrogatory 3 on November 23, 2011.

It appears that interrogatory 3 is now fully answered. The court need not rule on the
defendant’s objections.

Interrogatory 4 and defendant’s response of record are as follows:

Interrogatory No.4: Please describe the process utilized by the Defendant for
processing applications utilizing disability insurance benefits by employees.
ANSWER: Cabela's objects to this interrogatory on the basis that it is
vague, unduly burdensome, overbroad and not likely to lead to the
discovery of admissible evidence. Notwithstanding said objections, the
typical process for processing short-term disability applications involves
the employee filing a claim for short-term disability benefits and
forwarding the required paperwork and supporting medical information
to Cabela's Leave Manager. If the application is approved, the employee
is placed on short-term disability leave and paid short-term disability
benefits through Cabela's payroll. While an employee is on short-term
disability leave, confirmation of the ongoing need for leave will be
made at appropriate intervals (as determined, in part, based on the
medical information submitted by the employee indicating anticipated
duration of need for leave).
The plaintiff acknowledges he received his short-term disability benefits, but claims
his long-term benefits were delayed due to “deliberate mishandling of the Plaintiff’s claim.”
The plaintiff seeks an interrogatory response which summarizes defendant’s procedure for
processing long-term disability claims; the plaintiff is claiming the defendant did not follow
this routine procedure, but instead treated him differently because of his disability. Filing
No. 26, pp. 9, 11. The plaintiff concedes that “[t]he Interrogatory was intentionally left broad”
to cover both short- and long-term disability. Filing No. 26, p. 8.

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The defendant asserts that the interrogatory remains overly broad, unduly burdensome,
and the information requested is irrelevant. The defendant states: “Short-term disability
benefits, in the form of partially paid leave, is provided and administered by Cabela's for its
employees. A description of the process for requesting these short-term disability benefits was
provided notwithstanding our objections.” Filing No. 25-5, p. 3. However, long-term
disability is administered by the disability insurer and, as such, the defendant did not interpret
the plaintiff’s interrogatory as including long-term disability applications. Cabela’s states it
does not process any long-term disability benefit applications. It provided the plaintiff with
a copy of the long-term disability policy.

Cabela’s has answered interrogatory 4. The court need not rule on the defendant’s
objections.

For all the foregoing reasons,
IT IS ORDERED:
1)

The plaintiff’s motion to compel, (filing no. 24), is denied.

2)

The plaintiff’s motion to extend the deadline for responding to the defendant’s
motion for summary judgment, (filing no. 33), is denied.

DATED this 5th day of December, 2011.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility for
the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.

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