Compton v. Donley
Filing
46
ORDER granting plaintiff's 29 Motion to Compel Discovery; granting plaintiff's 30 Motion to Substitute Party. The Clerk of Court is hereby Directed to substitute Eric K. Fanning, Acting Secretary of the Air Force as the defendant in this matter. Secretary's 35 MOTION to Strike plaintiff's motion to compel is Denied. The Secretary is Ordered to tender any and all documents described in the Standing Order and as identified by plaintiff on or before 10/2/2013. The Se cretary is further ordered to provide a detailed response addressing the Court's questions raised on page 9 of this Order by 10/2/2013. Depositions on the merits shall be stayed until the Secretary complies with this Order. Eric K Fanning added. Michael B. Donley (Secretary of the Air Force) terminated. Signed by Magistrate Judge Karen L. Litkovitz on 9/18/2013. (art)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ANGELA COMPTON,
Plaintiff,
Case No. 1:12-cv-954
Litkovitz, M.J. (consent)
vs.
MICHAEL B. DONLEY,
SECRETARY OF THE AIR FORCE,
Defendant.
ORDER
Plaintiff Angela Compton brings this action under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973,29 U.S.C. §
791 et seq., alleging that defendant Michael B. Donley, Secretary of the Air Force (the
Secretary), unlawfully discriminated against her on the basis of her disability, failed to
accommodate her disability, and unlawfully retaliated against her for seeking disability
accommodations and pursuing previously raised claims of gender discrimination. (Doc. 11 ).
This matter is before the Court on plaintiffs motion to compel discovery responses (Doc. 29);
the Secretary's motion to strike plaintiffs motion or, alternatively, his response in opposition
(Doc. 35); plaintiffs reply memorandum (Doc. 36); plaintiffs response in opposition to the
Secretary's motion to strike (Doc. 41); and the Secretary's reply. (Doc. 43). Also pending
before the Court is plaintiffs motion to substitute the name of a defendant (Doc. 30) to which the
Secretary has not responded.
I. Motion to Substitute Name of Defendant (Doc. 30)
Plaintiff seeks leave to substitute the name of Eric K. Fanning in place of Michael B.
Donley pursuant to information and belief that Mr. Fanning was appointed Acting Secretary of
the Air Force on or about June 21,2013. In the absence of any opposition by the Secretary,
plaintiffs motion is GRANTED. The Clerk of Court is hereby DIRECTED to substitute Eric
K. Fanning, Acting Secretary of the Air Force as the defendant in this matter.
II. Motion to Compel (Doc. 29) and Motion to Strike (Doc. 41)
On May 21, 2013, this Court adopted the Initial Discovery Protocols for Employment
cases; the following day, a Standing Order was entered detailing the protocols. (Docs. 22, 23).
This Standing Order outlines the production obligations of parties in employment discrimination
cases, such as the instant matter. Plaintiff asserts that the Secretary has failed to timely produce
documents which he was obliged to tender pursuant to the Standing Order. (Doc. 29).
Specifically, plaintiff states the Secretary failed to timely produce a January 2010 performance
appraisal and failed to explain why counsel for the Secretary represented that this document did
not exist. !d. Plaintiff seeks a Court Order: ( 1) requiring the Secretary to produce documents
currently being withheld in discovery; (2) mandating counsel for the Secretary to explain the late
disclosure of the performance appraisal and why counsel represented that the appraisal did not
exist; (3) and compelling the Secretary to state how and why the performance appraisal was
removed from the paper and electronic files in the Secretary's custody and control. !d.
The Secretary responds that plaintiffs motion to compel should be stricken for failure to
exhaust extrajudicial remedies prior to seeking Court intervention. The Secretary alternatively
argues that plaintiffs motion should be denied because the information plaintiff seeks has
already been produced, will be produced shortly, or is not in possession of the Secretary, or that
plaintiff can glean the information sought from relevant witnesses during depositions. For the
following reasons, plaintiffs motion to compel is granted and defendant's motion to strike is
denied.
Fed. R. Civ. P. 37 provides that "[a] party seeking discovery may move for an order
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compelling an answer, designation, production or inspection" if a party fails to provide discovery
responses. Fed. R. Civ. P. 37(a)(3). Rule 37 also provides, "If a party or a party's officer ...
fails to obey an order to provide or permit discovery, ... the court where the action is pending
may issue further just orders," including "staying further proceedings until the order is obeyed."
Fed. R. Civ. P. 37(b)(2)(A)(iv). Before making a motion to compel disclosure or discovery,
though, the moving party must "in good faith confer[ ] or attempt [ ] to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court action." Fed.
R. Civ. P. 37(a). Thus, before moving to compel discovery, a party must first show that it sought
discovery from its opponent but was unable to resolve the dispute. McDermott v. Continental
Airlines, Inc., 339 F. App'x 552, 560 (6th Cir. 2009) (citing Petrucelli v. Bohringer & Ratzinger,
46 F.3d 1298, 1310 (3d Cir. 1995)).
At the outset, the Court finds that plaintiff has complied with both the Local 1 and Federal
Rules regarding her duty to attempt to secure the sought after discovery prior to seeking Court
intervention. Plaintiffs motion references and includes as exhibits several emails between
plaintiffs attorney and defense counsel regarding the discovery at issue. See Doc. 29, Ex. 4.
These emails demonstrate that on four occasions- June 29, July 2, July 8, and July 10, 2013plaintiffs counsel unsuccessfully attempted to procure this discovery. !d. As demonstrated by
these communications, plaintiffs counsel: did not secure certain documents which ostensibly
should have been produced in connection with the Secretary's initial disclosures; requested them
on multiple occasions; did not receive the requested documents; and subsequently filed the
instant motion to compel. !d.
Defendant is correct that the undersigned encourages parties to resolve discovery disputes
1
Local Rule 37.1 provides that motions to compel "shall not be filed in this Court ... unless counsel have
first exhausted among themselves all extrajudicial means for resolving the differences." S.D. Ohio Civ. R. 37.1.
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by use of an informal telephone discovery conference. See Magistrate Judge Litkovitz's Civil
Procedures, at 3, www.ohsd.uscourts.gov/judges/fplitkovitz.htm. This is and has been the
Court's general practice for resolving discovery disputes. Yet, some discovery issues cannot be
readily resolved through informal discussions. When, as here, it is alleged that a party may have
misrepresented the existence of documentation or information responsive to a Court Order, it
behooves the Court to have full and comprehensive briefing on the matter. For this reason, the
Court vacated the August 6, 2013 informal discovery conference and ordered the parties to
submit formal briefs. (Doc. 32). Given the Court's Order for formal briefings and the evidence
of plaintiffs attempts to resolve this matter without Court intervention, the Secretary's motion to
strike plaintiffs motion to compel is DENIED? The Court will now address the crux of
plaintiffs motion.
By way of background, plaintiff is a former employee of the United States Air Force.
Plaintiff alleges that she was wrongfully terminated following a request for reasonable
accommodation for a documented disability and filing an internal gender discrimination
complaint. Plaintiff further alleges that prior to her termination, her supervisor began "papering"
her personnel file with alleged complaints to justify her termination and that none of these
complaints were mentioned in her 2010 performance appraisal. Plaintiffs amended complaint
provides that this supervisor documented plaintiffs proficiency in the January 2010 performance
appraisal but, nevertheless, stated in April 2010 that plaintiff lacked the requisite skills to
perform her job as a computer engineer to justify her wrongful termination. (Doc. 11, ~~ 2-6). It
2
In support of his contention that the plaintiffs motion should be stricken, the Secretary cites to Despot v.
American Income Life Ins. Co., No. 1:10-cv-932, 2012 WL 787387 (S.D. Ohio Mar. 9, 2012), where the
undersigned denied the plaintiffs motion to compel for failure to adhere to Local Rule 37.1. This reliance is
misplaced. In Despot, the plaintiff had put forth no evidence that he had made any attempt whatsoever to meet and
confer with defense counsel prior to seeking Court intervention. In contrast, plaintiff here has put forth ample
evidence that her counsel communicated with defense counsel on multiple occasions in an attempt to resolve this
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is this January 2010 performance appraisal that is the subject of plaintiffs motion to compel.
Pursuant to the Court's Standing Order, as modified by the Court's May 21, 2013 Order
adopting the discovery protocols, the Secretary was required to provide to plaintiff specified
categories of documents, including plaintiffs performance evaluations, personnel file, and
policies and guidelines governing, inter alia, employment termination, within 30 days. (Doc.
22).
On June 29, 2013, plaintiffs counsel notified counsel for the Secretary that he had not
received the January 2010 appraisal or any documents relating to the January 13,2010 meeting
held between plaintiff and her supervisor discussing her review. Defense counsel responded on
July 1, 2013, that more documents were being sent that day, including plaintiffs personnel file.
After receiving the newly produced documents on July 2, 2013, plaintiffs counsel notified
counsel for defendant that he still had not received the January 2010 appraisal or associated
communications and expressed his concern that these documents were being withheld from
discovery. On July 8, 2013, defense counsel responded and informed plaintiffs counsel that:
(1) as reflected in the personnel file produced to plaintiffs counsel, plaintiff received only one
appraisal during her tenure with defendant for the period of June 29 to September 30, 2009; (2)
no appraisal was done in January 2010; (3) the January 13, 2010 meeting involved goals and
objectives, not an appraisal, and defendant had not been able to locate any notes from the
meeting; (4) there are no further appraisals for plaintiff as demonstrated by screen shots from the
San Antonio, Texas computer search for plaintiffs computerized records; and (5) there is no
second appraisal in the computer system. Plaintiffs counsel responded that same day reasserting that the January 2010 appraisal existed and his request for the same. At that time,
plaintiffs counsel requested that defense counsel investigate the matter and provide an update by
dispute, but received no answer or non-responsive replies. See Doc. 29, Ex. 4.
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July 12, 2013, noting that the January 2010 appraisal was extensively quoted in plaintiffs
amended complaint. Plaintiff also noted that there were various other documents which
appeared to be missing from the personnel file provided by defendant, which was maintained by
the supervisor plaintiff alleges had discriminated against her. On July 10, 2013, defense counsel
provided the January 2010 appraisal, but stated that his position remained correct as there was
only one appraisal in plaintiffs file -the January 2010 appraisal - and that the other 2009
appraisal previously tendered was not an appraisal but an interim review. Defense counsel
explained that the document was culled from a computer program used by plaintiffs prior
supervisor for maintaining personnel records. However, there was no explanation for the
absence of this document from plaintiffs personnel file or why it was not previously uncovered
during the gathering of discovery documents from plaintiffs supervisor. Plaintiffs counsel
responded later that day requesting: (1) a detailed explanation as to why defense counsel
previously represented that the January 2010 appraisal did not exist; (2) an explanation for why
the document was removed from the computer system; (3) records demonstrating the
supervisor's access to the computer system following plaintiffs termination; (4) emails from
plaintiffs supervisor relating to the January 2010 performance evaluation and his
communications with human resources in December 2009 regarding plaintiffs salary
enhancement; (5) a log of entries for plaintiffs personnel file; and (6) an explanation as to why
the requested documents were not in the personnel file. Plaintiff notified defense counsel that if
he did not receive a response by July 12, 2013, he would seek judicial intervention. See Doc. 29,
Ex. 4. Plaintiffs motion was filed July 19,2013.
Plaintiff now moves the Court for an order compelling the Secretary to: (1) comply with
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the May 21, 2013 standing order (Doc. 23); (2) produce documents currently being withheld3 ; (3)
explain the failure to timely produce the January 2010 performance appraisal; (4) explain why
defense counsel represented that there was no January 2010 performance appraisal in existence;
and (5) explain who removed the January 2010 appraisal from plaintiffs paper personnel file and
from the official computer database. Plaintiff argues that the January 201 0 appraisal is vital to
her case as it contradicts her supervisor's statements regarding her abilities and his stated basis
for terminating her and, thus, is evidence of pretext. Plaintiff asserts that defendant's failure to
provide the January 2010 appraisal despite his obligation under the Court's Order, combined
with his counsel's representation that the document did not exist, supports granting her motion to
compel as it raises the specter that defense counsel is being misinformed by his client or is not
diligently adhering to his discovery duties.
The Secretary's response rests largely on his assertion that plaintiffs motion should be
stricken for failure to exhaust her extrajudicial remedies. As discussed above, this argument is
not well-taken. The remainder of the Secretary's response simply reiterates the position of
defense counsel that the failure to produce the January 2010 appraisal was inadvertent (Doc. 35
at 3) and that, in any event, plaintiff was already given the appraisal in May 2012 prior to the
filing of this lawsuit. (Doc. 43 at 2). The Secretary has provided a more detailed explanation of
the erroneous representation by way of defense counsel's affidavit. (Id. at Ex. 1, Declaration of
Clarence P. Guillory, Jr.). Mr. Guillory declares that his "representation that there was no
second or January 2010 appraisal" was "based on [his] conversation with an employee of the
3
Specifically, plaintiff seeks the log that her supervisor was required to fill out whenever a document was
placed in her personnel file or she was disciplined; training records; emails containing the supervisor's
communications regarding plaintiffs salary increase and merit bonus; the hard copy of the January 2010 appraisal
which may contain handwritten notes; regulations applicable to the supervisor's obligations to document the
personnel file and performance problems; and the Secretary's policies and procedures as required under the May
21,2013 Order. (Doc. 29 at 11-12).
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Civilian Personnel Office (CPO)." Id. Mr. Guillory further states that he was under the incorrect
assumption that the interim review in plaintiffs personnel file was an annual review and that
only after being directed to the allegations in the amended complaint by plaintiffs counsel, did
he have plaintiffs former supervisor search his computer files at which time he discovered the
January 2010 performance appraisal. Id. Notably, Mr. Guillory's declaration fails to explain
what information caused him to represent that there was no January 2010 appraisal or why he did
not have plaintiffs supervisor perform the computer search prior to making said representation. 4
The attorneys for the Secretary assert that the erroneous representation concerning the
January 2010 appraisal was inadvertent and based upon misinformation received from Air Force
personnel. Nevertheless, counsel have a duty to supervise and coordinate the discovery process.
Counsel are required to monitor "the party's efforts to retain and produce the relevant
documents. Proper communication between a party and [his] lawyer will ensure (1) that all
relevant information ... is discovered," continually retained, and produced to the opposing party.
John B. v. Goetz, 879 F. Supp.2d 787, 869 (M.D. Tenn. 2010) (quoting Zubulake v. UBS
Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004)). Further, a lawyer "must become fully
familiar with [his] client's document retention policies, as well as the client's data retention
center." Zubulake, 229 F.R.D. at 432.
Here, it appears that counsel for the Secretary did not have the requisite understanding of
the Secretary's retention architecture prior to affirmatively stating that the January 2010
appraisal did not exist. Mr. Guillory's declaration intimates that this error was inadvertent and
the result of attorney-client miscommunication. 5 Regardless, this misrepresentation could have
4
While Mr. Guillory states that he questioned plaintiffs supervisor about the existence of appraisals other
than the already tendered September 2009 review, he does not relate the supervisor's response. See Doc. 35, Ex. I,
~ 4.
5
Plaintiffposits another theory: that this evidence was knowingly concealed from the personnel file in a
8
had dire consequences to plaintiffs prosecution of her lawsuit had she not been aware of the
appraisal and insisted upon its existence. Thus, while the undersigned does not find at this time
that the Secretary and defense counsel have acted in bad faith, it is appropriate to grant plaintiffs
motion, in part, to ensure that all responsive documents are located and produced, not only those
of which plaintiff is already aware.
Therefore, plaintiffs motion to compel is GRANTED. There is no question that plaintiff
is entitled to the documents requested pursuant to the Court's Standing Discovery Order. The
Secretary is ORDERED to provide plaintiff with any and all documents which meet the criteria
identified on pages six through eight of the Standing Order. See Doc. 23 at 6-8. This includes,
but is not limited to, the supervisor's log documenting submissions to the personnel file and
disciplinary action; training records; the hard copy ofthe January 2010 performance appraisal;
communications from plaintiffs supervisor regarding plaintiffs salary enhancement and
termination; and any and all policies and procedures governing the maintenance of plaintiffs
personnel file, discipline, and termination procedures. The Secretary shall tender these
documents on or before October 2, 2013.
Plaintiff also seeks an Order compelling the Secretary or his counsel to explain the basis
for the representation that the January 2010 appraisal did not exist and the reason for its removal
from plaintiffs paper personnel file and the department's computer system. While the original
and supplemental declarations of Mr. Guillory account for some of the actions taken to locate the
January 2010 appraisal, they are incomplete. See Doc. 35, Ex. 1; Doc. 43, Ex. 1. The
declarations do not describe the specific investigative steps taken by defense counsel, such as
who he contacted, aside from plaintiffs former supervisor (Mr. McJilton), and what sources he
searched to locate the January 2010 appraisal. It is not apparent to the Court why Mr.
defensive maneuver.
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McJilton's "My Workplace" program was not initially searched for documents and information
responsive to the Court's Standing Order. Nor has there been any explanation why the January
2010 appraisal was not located in plaintiffs personnel file or on the computer database on which
it presumably should have been found, or why Mr. McJilton apparently denied the existence of
the January 2010 appraisal when he personally participated in it. Given the circumstances
precipitating plaintiffs motion, the Secretary must provide a detailed explanation in response to
the Court's questions.
In conclusion, the Secretary's motion to strike plaintiffs motion to compel (Doc. 35) is
DENIED and plaintiffs motion to compel (Doc. 29) is GRANTED. The Secretary is
ORDERED to tender any and all documents described in the Standing Order and as identified
by plaintiff on or before October 2, 2013. 6 The Secretary is further ORDERED to provide a
detailed response addressing the Court's questions raised on page 9 of this Order by October 2,
2013. 7 Depositions on the merits shall be stayed until the Secretary complies with this Order.
IT IS SO ORDERED.
Date'
~X:~
'
Karen L. Litkovitz
United States Magistrate Judge
6
The Court strongly advises both counsel for plaintiff and the Secretary to engage in direct
communications with each other either face-to-face or via telephone to resolve future discovery disputes. While
email communication is useful for record-keeping, it deprives counsel of the ability to request and receive responses
instantaneously. Further, such direct communication is the basis of Fed. R. Civ. P. 37's "meet and confer"
requirement as it is well-accepted that many disputes may be resolved by speaking directly to the other party. See
Remy Inc. v. Tecnomatic, S.P.A., No. 1:11-cv-991, 2013 WL 1311095, at *3 (S.D. Ind. Mar. 26, 2013) (identifying
the value in actually meeting with counsel either face-to-face or by telephone as a more interactive discussion often
resolves a better forum than emails for resolving disputes); Nevada Power v. Monsanto, 151 F.R.D. 118, 120 (D.
Nev. 1993) (the meet and confer requirement "promote[s] a frank exchange between counsel to resolve issues by
agreement"); Dondi Properties Corp. v. Commerce Sav. and Loan Ass 'n, 121 F.R.D. 284,289 (N.D. Tex. 1988)
(same). The Court therefore urges counsel to engage in direct communication to discuss and resolve potential future
disputes.
7
In view of this Order, the Court denies plaintiffs request to conduct a limited deposition of Mr. McJilton
on search efforts. See Doc. 36 at 18.
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