Kaiser v. Gallup, Inc.

Filing 86

MEMORANDUM AND ORDER granting in part the Plaintiff's 53 Motion to Compel, as set forth above. Defendant shall supplement its discovery responses as required herein within fourteen (14) days of this Order. Ordered by Magistrate Judge F.A. Gossett. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SUSAN KAISER,
Plaintiff,
V.
GALLUP, INC.,
Defendant.

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8:13CV218

ORDER

This matter is before the Court on Plaintiff’s Motion to Compel (filing 53). For the
reasons expressed below, Plaintiff’s motion will be granted, in part.
BACKGROUND
Plaintiff was employed by Defendant as an Outbound Telephone Interviewer for
approximately eight years. Plaintiff’s employment with Defendant was terminated in June,
2012. At the time of her termination, Plaintiff was a member of Defendant’s “Premier
Team,” a high-performing interviewing team limited to the interviewers with the best
technical interviewing skills. As a member of the Premier Team, Plaintiff received benefits
and privileges not available to non-Premier Team Members.
Following her termination, Plaintiff filed an administrative charge of discrimination
against Defendant with the Lincoln Commission on Human Rights (“LCHR”). Plaintiff
alleged she was subjected to different terms and conditions of employment, denied a
reasonable accommodation, and terminated based on disability and in retaliation for
complaining about discrimination. Plaintiff’s claim referenced events taking place between
September, 2011 and June, 2012. In the course of responding to the LCHR’s investigation,
Defendant produced approximately 800 pages of documents. The LCHR’s file, which
included the documents provided by Defendant, was subsequently produced to both parties
in this lawsuit.

Plaintiff filed suit against Defendant in the District Court of Lancaster County,
Nebraska on June 13, 2013, alleging discrimination on the basis of disability, retaliation and
wrongful termination. (Filing 1.) Defendant removed the action to this Court on July 16,
2013. (Id.) To date, and in addition to the documents produced by the LCHR, over 1,600
pages of documents have been produced by Plaintiff, 200 pages of documents have been
produced by Defendant, and approximately 1,000 pages of documents were subpoenaed from
non-parties and produced by Defendant.
Plaintiff now seeks an order compelling Defendant to respond to multiple
Interrogatories and Requests for Production of Documents (“RFP”). These discovery
requests include Interrogatory Nos. 4-9 and 11-16,1 as well as RFP Nos. 19-26,2 28, and 4346.
DISCUSSION
Under the federal rules, parties to a lawsuit may obtain discovery regarding any
matter, not privileged, that is relevant to a claim or defense of any party. Fed. R. Civ. P.
26(b)(1). Relevant information need not be admissible at trial “if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Id. “Relevancy is
broadly construed, and a request for discovery should be considered relevant if there is any
possibility that the information sought may be relevant to the claim or defense of any party.”
Moses v. Halstead, 236 F.R.D. 667, 671 (D. Kan. 2006) (footnote omitted).
Defendant contends that Interrogatory Nos. 4, 7, and 9, and RFP No. 43, which
inquire into Plaintiff’s work performance, seek irrelevant information because the “quality”

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Interrogatory No. 16 requests that Defendant identify all knowledge it has regarding
leaves taken by Plaintiff for medical reasons during her employment. (Filing 55-3.)
Defendant represents that it has produced all documents in its possession regarding leaves
taken by Plaintiff. The Court deems Defendant’s response to this Interrogatory sufficient.
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Defendant has voluntarily produced the documents responsive to RFP No. 19.
Therefore, objections to this discovery request will not be addressed in this Order.
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of Plaintiff’s overall work performance is not at issue in this case.3 According to Defendant,
Plaintiff was terminated for her behavior and attitude, not due to concerns with the quality
of her work. The Court disagrees with Defendant’s contention that the requests seek entirely
irrelevant information. Although the quality of Plaintiff’s work performance may not be at
issue, responses to these discovery requests could encompass information reflecting upon
Plaintiff’s overall attitude and behavior in the workplace.
Nevertheless, though these requests seek relevant information, Interrogatory Nos. 7
and 9, as well as RFP No. 43, are overly broad. For starters, the requests are not properly
limited in time. Interrogatory No. 9 asks for communications from 2008 through the present,
even though Plaintiff’s employment was not terminated until 2012, and Plaintiff’s Complaint
references events which took place between 2011 and 2012. Interrogatory No. 7 extends
over an eight-year period. Moreover, Interrogatory Nos. 7 and 9, and RFP No. 43 are so
broad that they are virtually impossible to answer thoroughly and completely. For instance,
the term “awards” could include both formal and informal praise, as well as documented and
undocumented events. Therefore, responding to the request could require countless
interviews and extensive document review. Consequently, the Court will not compel
responses to Interrogatory Nos. 7 and 9, and RFP No. 43 as presently written.
However, the Court finds that Defendant can sufficiently respond to Interrogatory No.
4 as currently drafted. Defendant should be able to identify known persons supporting its
contention that Plaintiff’s work performance was unsatisfactory and the facts and documents
underlying any such contention. Moreover, if, as Defendant claims, the quality of Plaintiff’s
work is not at issue, a request for the identification of individuals, facts and documents
supporting the contention that Plaintiff’s work performance was unsatisfactory due to her
behavior in the workplace is sufficiently narrow so as to not be overly burdensome.

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Interrogatory No. 4 asks Defendant to “set forth all facts and identify all persons and
documents” supporting Defendant’s contention that Plaintiff’s work performance was
unsatisfactory. (Filing 55-3.) Interrogatory No. 7 seeks the identification of all awards
Plaintiff received during her employment with Defendant. (Id.) Interrogatory No. 9 asks
Defendant to “describe with specificity all communications with the Plaintiff regarding her
job performance.” (Id.)
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Defendant claims that Interrogatory Nos. 5 and 8 are overly broad. These discovery
requests seek the identification and description of conversations between individuals over
an extended period of time. Interrogatory No. 8 asks that Defendant “describe in detail each
conversation the Plaintiff had with any supervisor or manager regarding any issue raised in
the Plaintiff’s pending complaint.” (Filing 55-3.) Similarly, Interrogatory No. 5 requests a
description of all known conversations between management level employees and any other
person regarding Plaintiff’s medical conditions, requests for reasonable accommodation,
allegations of retaliation, and allegations of discrimination. (Id.) Again, the information
sought could be relevant, but there is no way Defendant, a company having thousands of
employees, can provide a complete answer. Therefore, the Court will not compel responses
to these requests as presently drafted.
Defendant objects to Interrogatory Nos. 6 and 14, as well as RFP Nos. 21-26, 28 and
46, on the basis of relevance, arguing that the requests seek information about current or
former employees who are not “similarly situated” to Plaintiff in all material respects.
Interrogatory No. 6 and RFP Nos. 21, 22, and 23 seek information from 2008 to 2012
regarding all requests for reasonable accommodation made by any employee who worked
at the four facilities where Plaintiff worked. (Id.) RFP Nos. 24 and 25 seek documents
related to any reports of discrimination, harassment and/or failure to provide reasonable
accommodation made by any current or former employee from 2008 to the present at all of
Defendant’s Nebraska facilities. (Filing 55-4.) RFP No. 26 asks for all personnel files of
any current or former employee who made a report or complaint of discrimination,
harassment or retaliation at any of Defendant’s Nebraska facilities. (Id.)
The Court agrees that these requests largely seek irrelevant information. Many of the
employees implicated in these requests are not similarly situated to Plaintiff in all relevant
respects. See Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 613 (8th Cir. 2014)
(quotation omitted) (“[I]ndividuals used for comparison must have dealt with the same
supervisor, have been subject to the same standards, and engaged in the same conduct
without any mitigating or distinguishing circumstances.”). Moreover, this case involves
Defendant’s alleged treatment of Plaintiff. The Complaint does not allege a company-wide
pattern of discriminatory conduct. Therefore, discovery requests directed solely at
establishing a pattern of discriminatory pattern of behavior are improper. Further, the Court
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finds that the requests are overly broad. Defendant represents that since 2008, it has operated
at least five facilities in Nebraska, which in turn employed approximately 10,100 individuals.
Defendant cannot be expected to comb through thousands of employee files and conduct
hundreds of interviews in an effort to identify all complaints of discrimination or retaliation,
especially since most of the employees implicated did not share the same supervisor as
Plaintiff or have similar work expectations and responsibilities. Defendant will not be
compelled to respond to these requests.
Defendant also complains that Interrogatory Nos. 11-14, and RFP Nos. 44-46 seek
irrelevant information and are overly broad. These requests generally ask for information
about other employees exhibiting certain behaviors in the workplace. For instance,
Interrogatory No. 11 seeks the identification of any employee who, from July 1, 2008 to the
present, exhibited “negativity,” “disruption,” or other “inappropriate behavior” in any facility
in which Plaintiff worked. (Filing 55-3.) Interrogatory No. 12 goes further, requesting that
Defendant describe all facts surrounding the incidents of employee negativity, disruption,
and/or inappropriate behavior and to identify all individuals with information regarding any
such incident. (Id.) Interrogatory No. 13 requests a description of any investigation or
disciplinary action taken in conjunction with incidents involving employee negativity and/or
inappropriate conduct in the workplace. (Id.) Interrogatory No. 14 asks whether any
employee who engaged in inappropriate workplace behavior (a) alleged unlawful
discrimination or retaliation; (b) had a disability; or (c) requested a reasonable
accommodation. (Id.)
Again, Plaintiff has failed to properly narrow her discovery requests. The requests
are not sufficiently limited in time, nor are they limited to persons working for the same
supervisor as Plaintiff or to persons subject to the same expectations in the workplace. The
requests seek the identification of perhaps thousands of individuals employed at different
facilities over an extended period. In addition to being overly broad, the requests are vague.
It is unclear how Plaintiff expects Defendant to measure “negativity” or “inappropriate
behavior.” Plaintiff made no attempt to narrow the types of offenses for inclusion, such as
those offenses necessitating discipline or documentation. Defendant will not be compelled
to respond to these requests.

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Interrogatory No. 15 asks Defendant to describe all job-related benefits Plaintiff
utilized from 2005 through 2012, including the monetary value associated with each benefit.
(Id.) Given the time line involved in this suit, this request is overly broad. The Court will
limit this Interrogatory to job-related benefits in effect at the time of Plaintiff’s termination.
Defendant shall provide a response accordingly.
RFP No. 20 seeks Defendant’s tax returns for the years 2012 through the present.
(Filing 55-4.) Although Defendant contests the breadth of this request, Defendant seemingly
recognizes that its tax returns are, to some degree, relevant. However, due to confidentiality
concerns, Defendant requests that the Court only require production of tax returns in the
event that its anticipated motion for summary judgment is denied. Given the sensitive nature
of this information, the Court finds that such an approach is reasonable. Therefore,
Defendant will not be ordered to produce returns at this time. Following a ruling on
Defendant’s motion for summary judgment, Defendant shall, if necessary, file an appropriate
motion requesting that the scope of RFP No. 20 be limited. Defendant shall do so within
fourteen days of a ruling on the motion for summary judgment. Failure to do so may result
in an order compelling production of the tax returns as requested in RFP No. 20.
Accordingly,
IT IS ORDERED that Plaintiff’s Motion to Compel (filing 53) is granted, in part, as
set forth above. Defendant shall supplement its discovery responses as required herein
within fourteen (14) days of this Order.
DATED December 11, 2014.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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