Allen v. Pacific Coast Feather Company
Filing
69
ORDER granting in part and denying in part 35 Motion to Compel; denying 45 Motion for Protective Order; and granting in part and denying in part 49 Motion to Compel - Pursuant to the court's prior order at docket entry 56 , plaintiff's Rule 30(b)(6) deposition of defendant shall be conducted no later than 28 May 2012. Signed by Magistrate Judge James E. Gates on 04/26/2012. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5:10-CV-484-FL
GLORIA J. ALLEN,
Plaintiff,
v.
PACIFIC COAST FEATHER COMPANY,
Defendant.
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ORDER
This case comes before the court on three discovery-related motions: a motion (D.E. 35)
by plaintiff Gloria Allen (“plaintiff”) to compel discovery from defendant Pacific Coast Feather
Company (“defendant”); defendant’s motion (D.E. 45) for a protective order; and plaintiff’s
second motion (D.E. 49) to compel discovery. The motions have been fully briefed. 1 They have
been referred to the undersigned for disposition pursuant to 28 U.S.C. §636(b)(1)(A). (See
Minute Entries after D.E. 41, 51, 55).
BACKGROUND
Plaintiff commenced this employment discrimination action on 5 November 2010. (See
Compl. (D.E. 1)). In her amended complaint (D.E. 26), plaintiff alleges that she was employed
as a sewer for defendant, which is in the business of manufacturing pillows and bedding, from 28
July 2008 until 3 August 2009. (Am. Compl. ¶¶ 11, 23, 151). She worked in the Pillow and
Feather Departments from 28 July 2008 until 6 April 2009 and full-time in the Pillow
1
In support of her first motion to compel, plaintiff filed a memorandum (D.E. 37) with exhibits (D.E. 37-1 through
37-6). Defendant filed in opposition a memorandum (D.E. 40) and a declaration (D.E. 41) with exhibits (D.E. 41-1
through 41-4). In support of its motion for a protective order, defendant filed a memorandum (D.E. 46) and
declaration (D.E. 47). Plaintiff filed in opposition a memorandum (D.E. 51) with exhibits (D.E. 51-1 through 51-7).
In support of her second motion to compel, plaintiff filed a memorandum (D.E. 50) with exhibits (D.E. 50-1 through
50-8). Defendant filed a memorandum in opposition (D.E. 53) and declaration (D.E. 54) with exhibits (D.E. 54-1
through 54-7).
Department thereafter until she was terminated. (Id. ¶¶ 29, 48). She claims that she suffered
from symptoms of carpal tunnel syndrome caused by her sewing. (Id. ¶ 42). She earned both an
hourly rate of pay and production pay, which was based on the amount the department in which
she worked produced above its goals. (Id. ¶ 31).
For the pay period from 5 to 18 July 2009, plaintiff allegedly worked 120 hours and
received no production pay. (Id. ¶¶ 54, 61). She questioned defendant about its failure to
provide production pay for that period and also contacted the North Carolina Department of
Labor (“NCDOL”). (Id. ¶¶ 63, 65, 71, 84, 137). On 27 July 2009, plaintiff saw her physician
for pain in her hands, who advised her to remain out of work for a short period of time. (Id. ¶
122). When plaintiff returned to work from this medical-related absence on 3 August 2009, she
was terminated, allegedly for her absences. (Id. ¶¶ 140, 151, 155).
In her amended complaint, plaintiff contends that defendant unlawfully retaliated against
her in violation of the Retaliatory Employment Discrimination Act (“REDA”), N.C. Gen. Stat. §
95-240 et seq. (Am. Compl. ¶¶ 183-194); wrongfully terminated her in violation of public policy
(id. ¶¶ 195-200); and wrongfully deprived her of benefits to which she was entitled pursuant to
the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq. (id. ¶¶ 201-26).
Defendant denies the material allegations in plaintiff’s amended complaint. (See generally Ans.
to Am. Compl. (D.E. 27)).
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DISCUSSION
I.
APPLICABLE LEGAL STANDARDS
The Federal Civil Rules enable parties to obtain information by serving requests for
discovery on each other, including interrogatories and requests for production of documents. See
generally Fed. R. Civ. P. 26-37. Rule 26 provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense . . . . 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.
Fed. R. Civ. P. 26(b)(1). The rules of discovery, including Rule 26, are to be given broad and
liberal construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecek v. Bd. of Governors,
No. 2:98-CV-62-BO, 2000 WL 33672978, at *4 (E.D.N.C. 27 Sep. 2000).
While Rule 26 does not define what is deemed relevant for purposes of the rule,
relevance has been “‘broadly construed to encompass any possibility that the information sought
may be relevant to the claim or defense of any party.’” Equal Employment Opportunity Comm’n
v. Sheffield Fin. LLC, No. 1:06CV889, 2007 WL 1726560, at *3 (M.D.N.C. 13 June 2007)
(quoting Merrill v. Waffle House, Inc., 227 F.R.D. 467, 473 (N.D. Tex. 2005)). The district court
has broad discretion in determining relevance for discovery purposes. Watson v. Lowcountry
Red Cross, 974 F.2d 482, 489 (4th Cir. 1992). Rule 37 allows for the filing of a motion to
compel discovery responses. Fed. R. Civ. P. 37(a)(3)(B).
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II.
PLAINTIFF’S FIRST MOTION TO COMPEL (D.E. 35)
During discovery, plaintiff served on defendant her first set of interrogatories and
requests for production. 2
Defendant served its initial responses on 16 August 2011 and
supplemental responses on 11 November 2011 (Pl.’s Mem. (D.E. 37) 1). Plaintiff now moves to
compel responses to two requests for production, nos. 22 and 31.
A.
Request for Production No. 22
Request for Production No. 22 seeks:
All correspondence, emails, reports, notes, or other documents obtained,
generated, or discovered during Defendant’s investigation into Plaintiff’s
complaints regarding Darnell Evans [(“Evans”)] diverting product for sale at the
local flea market referred to in Paragraphs 170 and 172 through 175 of the
Amended Complaint.
(Pl.’s 1st Mot. to Compel 2).
The above-referenced paragraphs in plaintiff’s amended complaint allege that after her
termination, plaintiff notified her former supervisor and production manager that she believed
that her production pay was denied because the production data was purposefully wrongfully
recorded in order to allow plant manager Evans to divert product to be sold at a flea market. She
alleges that she notified the NCDOL and other managers and directors of defendant of this
specific belief. (Am. Compl. ¶¶ 170-75).
Plaintiff accordingly contends that the requested materials are relevant because Evans
was directly involved in her termination and is a witness in the case. She claims that his
credibility is at issue as is the calculation of production pay.
2
Plaintiff did not provide the court with a copy of the actual requests served, but rather only excerpts of the requests
at issue and defendant’s responses with objections to those requests. Defendant does not challenge the authenticity
of the excerpts.
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Defendant objects to the production of the documents sought on grounds that they are not
relevant. It argues that Evans was not the decision maker in plaintiff’s termination and that the
allegations against Evans concern sheets, not pillows, and plaintiff worked only in the Pillow
Department. Defendant did produce Evans’ personnel file, which includes a written reprimand
for his donation of sheets to a church organization in a manner that did not adhere to company
policy, but contends that no further production is warranted. Finally, it argues that because
plaintiff is not asserting a wage and hour claim against it, information relating to the calculation
of her production pay is not relevant.
The court disagrees.
The documents sought relate, in part, to the circumstances
underlying plaintiff’s complaints to the NCDOL and defendant, and thereby plaintiff’s REDA
claim. They also relate to possible motivations for defendant’s termination of her and thereby
her wrongful termination claim. Specifically, if Evans were engaged in the misconduct alleged,
defendant would arguably have had an incentive to discharge plaintiff to prevent further inquiry
by her into such misconduct. Further, the documents sought relate to all of plaintiff’s claims in a
literal sense because the facts underlying them are expressly pled, in detail, in the amended
complaint.
The fact that discovery already produced shows at least some impropriety by Evans in
connection with the alleged product diversion in question tends to show that the allegations are
not frivolous. Moreover, of course, plaintiff need not take defendant’s word that the production
sought would not provide any additional useful information on the issue of the alleged diversion
of the donated product.
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This portion of plaintiff’s motion to compel is therefore ALLOWED. Defendant shall
produce to plaintiff the documents sought in Request for Production No. 22 no later than 10 May
2012 and shall include with them a response signed by counsel stating that the production is
complete to the best of the signer’s knowledge, information, and belief formed after reasonable
inquiry. See Fed. R. Civ. P. 26(g)(1).
B.
Request for Production No. 31
Request for Production No. 31 seeks “employee rosters identifying all of [defendant’s]
employees from August 1, 2008 until December 31, 2009.” (Pl.’s 1st Mot. to Compel 4).
Plaintiff argues that the request seeks relevant information because it will enable her to identify
and contact potential witnesses to support her claims. She argues specifically that she knows of
potential witnesses but is unsure of their names and needs the list to jog her memory. Defendant
contends that its prior production of employee rosters for its Feather and Pillow Departments,
where plaintiff worked, is all that plaintiff is entitled to because the experiences of employees
outside these two departments is not relevant.
At summary judgment or trial, in order to establish a prima facie case of disparate
discipline or pretext, plaintiff may need to establish that disciplinary measures enforced against
her were more severe than those enforced against other similarly situated employees. Mercer v.
North Carolina Dep’t of Trans., No. 5:09-CV-379-FL, 2010 WL 5890394, at *5 (E.D.N.C. 23
Dec. 2010); M&R adopted, 2011 WL 780539 (28 Feb 2011). In determining whether two
employees are similarly situated for these purposes, the court looks at all relevant factors which
include whether the individuals were disciplined by the same supervisor, the gravity of the
offenses, and the seriousness of the punishments imposed. Id.; see also Haywood v. Locke, 387
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Fed. Appx. 355, 359 (4th Cir. 2010) (to show that a plaintiff is similar to a comparator, a plaintiff
must provide evidence that the employees “dealt with the same supervisor, [were] subject to the
same standards and . . . engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them for it”),
cert. denied., 131 S. Ct. 1491 (2011).
However, the standard for discoverability is not coterminous with that of admissibility
and, indeed, is much broader. Fed. R. Civ. P. 26(b)(1); Frank Betz Assoc., Inc. v. Jim Walter
Homes, Inc., 226 F.R.D. 533, 536 (D.S.C. 2005) (standard for whether to allow motion to
compel discovery not limited by whether the information is admissible under the Rules of
Evidence).
“In a disparate treatment case, discovery should be ‘reasonably related to the
circumstances involved in the alleged discrimination and to a time frame involving the alleged
discriminatory conduct and the individuals who are allegedly involved in that conduct.’” Rodger
v. Electronic Data Systems, Corp., 155 F.R.D. 537, 540 (E.D.N.C. 1994) (quoting Hardrick v.
Legal Services Corp., 96 F.R.D. 617, 618-19 (D.D.C. 1983)).
Here, which individual or individuals were the decision makers responsible for her
termination is in dispute. While defendant contends that the decision was made solely by
Supervisor Bonnie Pendergrass (“Pendergrass”) in the Pillow Department where plaintiff last
worked, plaintiff points to evidence suggesting that others were also involved. (See, e.g., Dep. of
Samuel Valle (D.E. 51-3) 109:16 to 110:14). Thus, the record does not rule out the possibility
that Evans, as Plant Manager, was the decision maker or one of several decision makers in
plaintiff’s termination. Accordingly, at this point, her potential comparators can reasonably be
deemed to include all employees at the plant where plaintiff worked and not only those who
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worked directly under Pendergrass in the Pillow Department. See Rodger, 155 F.R.D. at 540
(citing favorably Prouty v. National Railroad Passenger Corp., 99 F.R.D. 545, 547 (D.D.C.
1983), which limited “discovery to the department in which the plaintiff worked and those other
departments under the jurisdiction of the larger departmental unit which supervised all the
departments”).
Moreover, plaintiff has identified a specific need for the rosters of employees at this
plant—to refresh her recollection about particular employees concerning whom she already
apparently has at least some information pertinent to her claims. The time period for which the
documents are sought is reasonable. Lastly, defendant makes no contention that production of
the rosters would be unduly burdensome to defendant.
This portion of plaintiff’s first motion to compel shall therefore be ALLOWED to the
extent it seeks rosters for employees at the plant where plaintiff worked. It shall otherwise be
DENIED. Defendant shall produce to plaintiff the documents sought in Request for Production
No. 31 as so limited no later than 10 May 2012 and shall include with them a response signed by
counsel stating that the production is complete to the best of the signer’s knowledge,
information, and belief formed after reasonable inquiry.
III.
DEFENDANT’S MOTION FOR A PROTECTIVE ORDER (D.E. 45)
Plaintiff has served on defendant a notice to take its deposition pursuant to Fed. R. Civ. P.
30(b)(6). (Dep. Notice (D.E. 47)). Defendant’s motion for a protective order seeks to exclude or
limit five topics specified by plaintiff: topics 5, 6, and 7, and topics 8 and 9. These sets of topics
are addressed separately below.
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A.
Topics 5, 6, and 7
Topics 5, 6, and 7 concern the calculation of production pay for the pay period 5 to 18
July 2009. Specifically, topic 5 seeks information about “[p]roduction in the Pillow Department
for the pay period from July 5, 2009 until July 18, 2009.” (Dep. Notice ¶ 5 at 6-7). This topic
includes information on policies or procedures relating to production pay or production-based
incentive bonuses as well. (Id. at 7). Topic 6 seeks information about “production of cuddle
rolls in the Pillow Department during June and July 2009.” (Dep. Notice ¶ 6 at 7). And topic 7
seeks information concerning defendant’s reasons for not paying production pay to plaintiff for
the pay period from 5 July 2009 to 18 July 2009. (Dep. Notice ¶ 7 at 7).
Defendant argues that because plaintiff has not asserted a wage and hour claim against it,
the reasonableness of her wage complaints are not relevant. It accordingly contends that inquiry
into the calculation of production pay cannot be reasonable calculated to lead to relevant
information.
The court disagrees. The reasonableness of plaintiff’s wage complaints and her good
faith belief in asserting her complaints clearly relate to the protected activity that forms the basis
of her retaliation claim. Johnson v. Ogletree, Deakins, Nash, Smoak & Stewart, P.C.S, 3:11-CV391, 2011 WL 5974457, at *3 (W.D.N.C. 20 Oct. 2011) (“REDA prohibits employers from
discriminating or taking retaliatory action against an employee who in good faith files a claim
against his employer or engages in other protected activities under the statute.”). Indeed, one of
defendant’s affirmative defenses is that plaintiff’s complaint to the NCDOL was not in good
faith. (Am. Ans. Affirmative Def. No. 5). Plaintiff should be allowed to demonstrate that her
complaint was made in good faith and explore the factual basis for that claim.
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For these reasons, defendant’s motion for a protective order as to Topics 5, 6, and 7 is
DENIED. Defendant shall designate a person to testify on these topics in accordance with Rule
30(b)(6).
B.
Topics 8 and 9
Topics 8 and 9 request information on other employees. Specifically, topic 8 seeks
information regarding the employees who worked in the Feather and Pillow Departments from 1
August 2008 through 31 December 2009, including those identified in the chart contained in
PCF 000599-608. (Dep. Notice ¶ 8 at 7). Topic 9 seeks detailed information on the attendance
and discipline of 10 identified employees. (Id. ¶ 9 at 7). Defendant asks that these topics be
limited to other sewers who were supervised by Pendergrass in the Pillow Department, the
department where plaintiff was working at the time she was fired, from 3 August 2008 through 3
August 2009. It argues that this group of employees comprises plaintiff’s comparators.
As previously discussed, it is premature to limit plaintiff’s potential comparators as
defendant advocates.
discovery.
The court therefore finds topics 8 and 9 to be within the scope of
Pitrolo v. County of Buncombe, No. 1:06CV199, 2007 WL 1041193, at *1-2
(W.D.N.C. 4 Apr. 2007) (“While it may be valid to argue at trial or at summary judgment that
evidence as to a given employee is not admissible inasmuch as such person is not a ‘valid
comparator,’ see Wheatley v. Wicomico County, Maryland, 390 F.3d 328, 334 (4th Cir. 2004),
discovery that is designed to find valid comparators is not objectionable simply because it may
also include information that may not be admissible.”). Defendant’s motion for a protective
order is accordingly DENIED as to these topics, meaning that the motion is denied in its entirety.
Defendant shall designate a person to testify on topics 8 and 9 in accordance with Rule 30(b)(6).
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IV.
PLAINTIFF’S SECOND MOTION TO COMPEL (D.E. 49)
Plaintiff’s second motion to compel seeks documents requested in Requests for
Production Nos. 2, 3, and 4. The requests all relate to Gail Stetzler (“Stetzler”), one of plaintiff’s
former co-workers. Plaintiff contends that Stetzler not only has knowledge regarding plaintiff’s
claims, but is a potential comparator because she was allegedly disciplined for complaining to
the NCDOL. (Pl.s’ Mem. (D.E. 50) 2-3). The three requests for production seek: (1) Stetzler’s
complete personnel file (Request No. 2); (2) Stetzler’s complete wage records from 1 August
2008 through 21 December 2009 (Request No. 3); and (3) Stetzler’s complete records of hours
worked from 1 August 2008 through 21 December 2009 (Request No. 4). (Pl.’s 2d Compel Mot.
to Compel 2, 3). Defendant objects to the requests on grounds that they are beyond the scope of
permissible discovery and not reasonably calculated to lead to the discovery of admissible
evidence.
A.
Request for Production No. 2
As to Request for Production No. 2, the court finds that plaintiff has adequately
demonstrated for purposes of discovery that Stetzler is a potential comparator. Stetzler has
provided a release authorizing the production of her personnel records, thereby eliminating her
privacy as a potential obstacle to production. While defendant has already produced portions of
Stetzler’s personnel file (i.e., discipline record, personnel action forms, application forms, timeoff sheets, and general employment documents) (see Def.’s Opp. Mem. (D.E. 53) 1), the record
does not establish that the broader production sought would be unduly burdensome or otherwise
outside the permissible scope of discovery, particularly in light of Stetzler’s release.
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According, plaintiff’s motion to compel production is ALLOWED with respect to the
documents sought in Request for Production No. 2. Defendant shall produce these documents no
later than 10 May 2012 and shall include with them a response signed by counsel stating that the
production is complete to the best of the signer’s knowledge, information, and belief formed
after reasonable inquiry.
B.
Requests for Production Nos. 3 and 4
With respect to Requests for Production Nos. 3 and 4, plaintiff has demonstrated that
Stetzler’s wage and hour records are relevant since Stetzler allegedly had her hours reduced as a
direct result of complaints she made to the NCDOL. The court finds that requested time frame, 1
August 2008 through 21 December 2009, to be appropriately limited in scope. Defendant
indicates that the original time records are stored off-site and that retrieval would be
burdensome. Accordingly, at this time, only the electronic earnings records for Stetzler will
need to be produced.
Plaintiff’s motion to compel the wage and hour records is therefore ALLOWED IN
PART and DENIED IN PART with respect to Requests for Production Nos. 3 and 4. Defendant
shall produce to plaintiff no later than 10 May 2012 the electronic earnings records for Stetzler
for the period 1 August 2008 through 21 December 2009. Defendant shall include with the
records a response signed by counsel stating that the production is complete to the best of the
signer’s knowledge, information, and belief formed after reasonable inquiry.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that plaintiff’s first motion (D.E. 35) to
compel discovery is ALLOWED IN PART and DENIED IN PART; defendant’s motion (D.E.
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appointment (CJA Form 23). Defendant has failed to complete the "Obligations and Debts" section
of the form and has failed to enter the date on which he executed the form. Without a complete
application, the court is not able to determine whether defendant is entitled to appointment of
45) for a protective order is DENIED; and plaintiff’s second motion (D.E. 49) to compel
counsel. The appointment of counsel is therefore DENIED without prejudice to reconsideration of
discovery is ALLOWED IN PART and DENIED IN PART. Pursuant to the court’s prior order
such appointment after the filing of a new Financial Affidavit which contains the missing
(D.E. 56), plaintiff’s Rule 30(b)(6) deposition of defendant shall be conducted no later than 28
information.
May 2012.
This order shall be filed under seal.
SO ORDERED, this the 26th day of April 2012.
SO ORDERED, this 23rd day of May 2011.
_________________________
James E. Gates
United States Magistrate Judge
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