Springs v. Mayer Brown, LLP et al

Filing 59

ORDER re 53 Sealed Document - Partial Objection to Magistrate Judge's Order on Motion to Compel 53 is overruled and the order of Judge Cayer is reaffirmed. Signed by District Judge Max O. Cogburn, Jr on 5/23/11. (com)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:09cv352
VENUS Y. SPRINGS,

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Plaintiff,
Vs.
MAYER BROWN, LLP,
Defendant.
_______________________________

ORDER

THIS MATTER is before the court on defendant’s Partial Objections to the
Magistrate Judge’s Order Regarding Plantiff’s Motion to Compel (#53).
On or about July 17, 2009, plaintiff served her First Set of Interrogatories upon
defendant and demanded in Interrogatories 8, 9, 10, 11 and 14 that defendant provide the
identify of all individuals who applied for a job, were interviewed for a job, were offered a
job or requested a transfer to defendant’s Charlotte office from 2005 to present, and the
identity of all individuals employed in defendant’s Charlotte office who served on an
interview panel.
Defendant objected to these interrogatories because they are over broad and seek
information which is not reasonably likely to lead to the discovery of admissible evidence.
Defendant objected to plaintiff’s hiring activity interrogatories contending that she sought
information regarding employment decisions which were made by different decision makers
and which were unrelated to the wrongful discharge claim she asserts here.

Defendant

argued that plaintiff was attempting to obtain a wide variety of information concerning a six
year period that was beyond the scope of discovery.
In objecting to the resolution of such issues by Honorable David C. Cayer, United
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States Magistrate Judge, by way of Order dated April 18, 2011 (*#52), which granted
plaintiff’s Motion to Compel as it relates to hiring activity interrogatories among other
matters, defendant argues that the decision is clearly erroneous as to the hiring activity
interrogatories.
Defendant argues that Judge Cayer’s Order requiring them to produce information
regarding the firm’s Charlotte hiring practices over a six-year period is not probative of
plaintiff’s sole claim in this litigation, which is whether the firm, through Ms. Springs’
supervising partner, unlawfully terminated her employment in May 2008 because of her race.
It argues that the Order fails to articulate any basis to support plaintiff’s contention that the
hiring information she demands is reasonably calculated to lead to the discovery of
admissible evidence.
Clearly, while statistical evidence as to hiring practices may not always be pertinent
to establishing a prima facie case of termination of employment based on race, under the
burden-shifting analysis plaintiff’s obligation does not stop at the prima facie case.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As defendant will certainly argue
in its summary judgment motion, plaintiff also has the burden of presenting evidence that
defendant’s legitimate, non-discriminatory reason for terminating her employment is mere
pretext for racial discrimination. Discovery concerning defendant’s employment practices
beginning four years prior to the filing of this lawsuit is wholly within the scope of
permissible discovery under Rule 26, Federal Rules of Civil Procedure.

In a highly

persuasive opinion, the Court of Appeals for the Tenth Circuit held as follows:
It is uniformly recognized that statistical data showing an employer's
pattern of conduct toward a protected class can create an inference that an
employer discriminated against individual members of the class.” Fallis v.
Kerr-McGee Corp., 944 F.2d 743, 746 (10th Cir.1991). On the other hand,
“[s]tatistics taken in isolation are generally not probative of ... discrimination,”
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Jones v. Unisys Corp., 54 F.3d 624, 632 (10th Cir.1995), and statistical
evidence on its own “will rarely suffice” to show pretext, Ortiz v. Norton, 254
F.3d 889, 897 (10th Cir.2001). At the very least, in order to create an inference
of pretext, “a plaintiff's statistical evidence must focus on eliminating
nondiscriminatory explanations for the disparate treatment by showing
disparate treatment between comparable individuals.” Fallis, 944 F.2d at 746.
Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1114 -1115 (10 th Cir. 2007). While
“[s]tatistical evidence is less significant [in disparate treatment cases] . . . because the
ultimate issue is whether a particular plaintiff was the victim of an illegally motivated
employment decision,” it is clear that “statistical evidence showing a pattern or policy of
failure to hire or promote protected class members may be used to establish a prima facie
case of individual disparate treatment discrimination.” EDC ANAFED § 138:4, citing
McDonnell Douglas Corp. v. Green, supra. Indeed, had Judge Cayer refused to compel such
discovery, it is likely this case would have been subject to remand in the event of a favorable
verdict for defendant, as is evident from a highly persuasive opinion from the Court of
Appeals for the Second Circuit:
It is well-settled that an individual disparate treatment plaintiff may use
statistical evidence regarding an employer's general practices at the pretext
stage to help rebut the employer's purported nondiscriminatory explanation.
Evidence relating to company-wide practices may reveal patterns of
discrimination against a group of employees, increasing the likelihood that an
employer's offered explanation for an employment decision regarding a
particular individual masks a discriminatory motive. This case turns on the
sincerity of American Cyanamid's claim that Hollander's abrasive personality
justified his discharge, notwithstanding what Hollander depicts as American
Cyanamid's prior fickle attitude towards this dimension of Hollander's job
performance and the inability of a company supervisor to detail instances in
which such problems impeded productivity. It is possible that Hollander's
discovery request might uncover a pattern of older management employees
leaving American Cyanamid under unexplained circumstances, which might
help prove his claim that American Cyanamid's explanation for his discharge
was pretextual.
Because employers rarely leave a paper trail-or “smoking gun”-attesting
to a discriminatory intent, disparate treatment plaintiffs often must build their
cases from pieces of circumstantial evidence which cumulatively undercut the
credibility of the various explanations offered by the employer. Such
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determinations are, generally speaking, most competently and appropriately
made by the trier of fact. So long as the plaintiff can present “solid
circumstantial evidence” supporting his case, he should have the opportunity
to prove his case at trial. The district court's refusal to compel an answer from
American Cyanamid deprived Hollander of evidence potentially helpful to his
attempt to assemble such a quantum of circumstantial evidence supporting his
argument of pretext.
Hollander v. American Cyanamid Co., 895 F.2d 80, 84 -85 (2 nd Cir. 1990) (citations
omitted). Of course, the usefulness of statistical evidence “depends on the surrounding facts
and circumstances,” Carter v. Ball, 33 F.3d 450, 456 (4th Cir.1994), and “statistics alone are
an insufficient means of demonstrating pretext.” Van Slyke v. Northrop Grumman Corp.
115 F.Supp.2d 587, 597 (D.Md. 2000) (citation omitted).
The Western District of North Carolina has traditionally allowed broad discovery;
while statistical evidence alone will not satisfy plaintiff’s burden of showing pretext, such
evidence appears to be relevant to plaintiff’s disparate treatment, wrongful discharge claim
and may well lead to the discovery of additional evidence. Further, due to the relatively small
size of defendant’s Charlotte office and the limited time in which plaintiff seeks such
statistical data (four years before the filing of the lawsuit and up to the present), the court
finds Judge Cayer’s decision to be consistent with Rule 26(c)(iii) as the burden or expense
of the proposed discovery does not outweigh its likely benefit.
As Section 28, United States Code, Section 636(b)(1)(A) makes clear, this court will
only reconsider Judge Cayer’s disposition of a non-dispositive motion where the objecting
party has shown that the magistrate judge’s Order is “clearly erroneous or contrary to law.”
This statutory provision is also reflected in Rule 72(a). While reasonable jurists could have
reached different results, defendant has not shown that such decision is clearly erroneous or
contrary to law.

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ORDER
IT IS, THEREFORE, ORDERED that defendant’s Partial Objections to the
Magistrate Judge’s Order Regarding Plantiff’s Motion to Compel (#53) is OVERRULED,
and the Order of Judge Cayer is REAFFIRMED.

Signed: May 23, 2011

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