Craig-Wood v. Time Warner Cable

Filing 42

ORDER granting in part and denying in part 35 Motion to Compel - Time Warner is ordered to produce documents to Ms. Craig-Wood w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 4/16/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Kelley Craig-Wood,
Plaintiff,
v.
Time Warner NY Cable LLC,
Defendant.

:
:
:
:
: Case No. 2:10-cv-906
:
: JUDGE JAMES L. GRAHAM
: Magistrate Judge Kemp
:
ORDER

This employment discrimination case is before the Court to
consider the motion to compel filed by plaintiff Kelley CraigWood. Defendant Time Warner NY Cable LLC (“Time Warner”) has
opposed the motion.

For the following reasons, the motion (#35)

will be granted in part and denied in part.
I. Background
The allegations as laid out in this order are taken from Ms.
Craig-Wood’s amended complaint and Time Warner’s answer to that
amended complaint and are considered true for purposes of this
motion only.

Ms. Craig-Wood, a Caucasian who is 45 years of age,

filed her amended complaint on February 2, 2011, alleging claims
for race and age discrimination and retaliation under Title VII,
Ohio law, and the Age Discrimination in Employment Act (ADEA).
She alleges that during her employment with Time Warner, her
African-American supervisor who was under age 40, Bianca Beckley,
treated her less favorably than her coworkers who were either
African American or under age 40.

Specifically, she alleges that

Ms. Beckley engaged in fraudulent sales practices in order to
increase sales for Time Warner and directed her subordinates to
do the same.

Ms. Craig-Wood refused to follow Ms. Beckley’s
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directions, but her coworkers Tenesia Tyus, an African American
under age 40, and Carmella Weiser, under age 40, did follow these
directions and engaged in fraudulent activity.

Ms. Craig-Wood

alleges that she was “harassed, disciplined, and threatened with
termination” while these two coworkers suffered no adverse
action. (Doc. #3, ¶7).
On October 2, 2008, Ms. Beckley issued Ms. Craig-Wood a
written warning and placed her on six months probation.

Time

Warner asserts in its answer that this probation was because Ms.
Craig-Wood was falsifying sales order forms.

Ms. Craig-Wood

complained to human resources and nothing was done.

On March 18,

2009, Ms. Beckley issued Ms. Craig-Wood a final written warning
for the same rule violation as her October 2, 2008 discipline.
Time Warner asserts in its answer that this final warning was
issued because Ms. Craig-Wood was falsifying sale order forms.
Ms. Beckley also docked Ms. Craig-Wood’s pay and vacation time.
Ms. Craig-Wood was terminated on March 4, 2010.
According to Ms. Craig-Wood’s motion to compel, on December
27, 2011 Ms. Craig-Wood served Time Warner with its first set of
discovery requests.

On January 20, 2012 Time Warner responded

with some discovery, but insisted on a protective order before
producing the remaining responsive documents.

Ms. Craig-Wood

agreed to the protective order sometime around March 14, 2012.
On March 19, 2012, Ms. Craig-Wood received a disc with additional
discovery responses from Time Warner.
Ms. Craig-Wood complains that Time Warner did not provide
any information in its discovery responses regarding her
“comparable coworkers.”

(Doc. #35, p. 3).

She also complains

that certain information is missing from Ms. Beckley’s personnel
file. (Doc. #35, p. 7).

Time Warner opposes Ms. Craig-Wood’s

motion on the grounds that her requests are overly broad and not
reasonably calculated to lead to the discovery of admissible
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evidence under Fed.R.Civ.P. 26(b).
II. Standard of Review
Under Fed.R.Civ.P. 37, a party may file a motion to compel
discovery if the opposing party fails to respond to discovery
requests including requests for production of documents.
Fed.R.Civ.P. 37(a)(1), (a)(3)(B)(iv).
The Federal Rules of Civil Procedure authorize extremely
broad discovery.

United States v. Leggett & Platt, Inc., 542

F.2d 655, 657 (6th Cir. 1976).

Fed.R.Civ.P. 26 is liberally

construed in favor of allowing discovery.

Dunn v. Midwestern

Indemnity, 88 F.R.D. 191, 195 (S.D. Ohio 1980).

Any matter that

is relevant, in the sense that it reasonably may lead to the
discovery of admissible evidence, and is not privileged, can be
discovered.

The concept of relevance during discovery is

necessarily broader than at trial, Mellon v. Cooper-Jarrett,
Inc., 424 F.2d 499, 500-501 (6th Cir. 1970), and “[a] court is
not permitted to preclude the discovery of arguably relevant
information solely because if the information were introduced at
trial, it would be ‘speculative’ at best.”

Coleman v. American

Red Cross, 23 F.3d 1091, 1097 (6th Cir. 1994).

A district court

enjoys broad discretion in managing discovery.

Lavado v.

Keohane, 992 F.2d 601, 604 (6th Cir. 1993).
Information subject to disclosure during discovery need not
relate directly to the merits of the claims or defenses of the
parties.

Rather, it may also relate to any of the myriad of

fact-oriented issues that arise in connection with the
litigation.
(1978).

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351

On the other hand, the Court has the duty to deny

discovery directed to matters not legitimately within the scope
of Rule 26, and to use its broad discretionary power to protect a
party or person from harassment or oppression that may result
even from a facially appropriate discovery request.
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See Herbert

v. Lando, 441 U.S. 153, 177 (1979).

Additionally, the Court has

discretion to limit or even preclude discovery which meets the
general standard of relevance found in Rule 26(b)(1) if the
discovery is unreasonably duplicative, or the burden of providing
discovery outweighs the benefits, taking into account factors
such as the importance of the requested discovery to the central
issues in the case, the amount in controversy, and the parties'
resources.

See Fed.R.Civ.P. 26(b)(2).

Finally, the Court notes that the scope of permissible
discovery which can be conducted without leave of court has been
narrowed somewhat by the December 1, 2000 amendments to the
Federal Rules.

Rule 26(b) now permits discovery to be had

without leave of court if that discovery is “relevant to any
party’s claim or defense. . .”

Upon a showing of good cause,

however, the court may permit broader discovery of matters
“relevant to the subject matter involved in the action.” Id.
It is with these standards in mind that the Court will
decide the current motion.
III. Discussion
In an employment discrimination case such as this one, the
outcome might turn on whether the plaintiff can identify one or
more comparable employees who are similarly situated but received
different treatment.
Cir. 2012).

See Bobo v. UPS, 665 F.3d 741, 753 (6th

These comparable employees must be similarly

situated in all relevant respects.

Id. at 751.

“The refusal of

a defendant to disclose requested comparator information denies
plaintiff the opportunity to determine whether the evidence
actually reveals comparator status and different treatment,
critical elements of the claim that the trier of fact must
determine.”

Id. at 753.

Ms. Craig-Wood’s motion to compel

argues Time Warner has not provided relevant information in
response to her requests for production of documents regarding
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“comparable coworkers.”

This Court will now consider each of

these requests.
A. Personnel Files, Job Descriptions, Job and Area Assignments,
and Commissions
Document request nos. 6-9 and 11-26 ask for a copy of the
personnel file, the job descriptions for all positions worked,
the “job assignments” and “area” assignments, and the commissions
paid to either Ms. Beckley, Tenesia Tyus, Carmela Weiser,
Princess Powe, and Ty Harris.
supervisor.

Mr. Harris was Ms. Beckley’s

Ms. Craig-Wood has made no allegations against Mr.

Harris and he is not mentioned in Ms. Craig-Wood’s complaint.
There is no reason to believe that any documents related to Mr.
Harris are relevant to Ms. Craig-Wood’s claims and therefore this
Court will not order production of documents related to Mr.
Harris at this time.

This Court will consider the remaining

requests in turn.
i. Personnel Files
Personnel files often contain highly personal and
confidential information, such as unlisted addresses, telephone
numbers, marital status, wage information, medical background,
credit history, and other work-related problems unrelated to a
plaintiff’s case.
1999).

Knoll v. AT&T, 176 F.3d 359, 365 (6th Cir.

“Because of the extremely private nature of personnel

files, courts generally do not order production of such files
except upon a compelling showing of relevance by the requesting
party.”

Stratienko v. Chattanooga-Hamilton County Hosp. Auth.,

No. 1:07–CV–258, 2008 WL 4442492, *5 (E.D. Tenn. Sept. 25, 2008).
See also Jordan v. Kohl’s Dep’t Stores, Inc., No. 3:10-CV-0051,
2010 WL 3024868

(M.D. Tenn. July 28, 2010).

While this Court

will not order Time Warner to produce all the personnel files in
their entirety, it will order it to produce additional relevant
documents as detailed below.
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Time Warner represents that it has provided Ms. Beckley’s
complete personnel file to Ms. Craig-Wood.

In response, Ms.

Craig-Wood argues that “Beckley’s file should contain” additional
documents (Doc. #35, p.7), but Time Warner asserts there are
none. To resolve this disagreement, Time Warner will be ordered
to re-check its records to assure Ms. Craig-Wood that it has
provided the entire personnel file to her.

It will also be

ordered to provide an explanation to Ms. Craig-Wood as to why the
documents she believes are missing are not contained in this
personnel file.
Time Warner asserts that it reviewed the personnel files of
Ms. Tyus, Ms. Weiser, and Ms. Powe to determine whether any
disciplinary records exist. It has advised Ms. Craig-Wood that
these three individual’s personnel files do not contain
discipline from Ms. Beckley.

Thus, Time Warner argues there is

nothing else relevant in the files to produce.
Although Time Warner correctly concludes that discipline
from Ms. Beckley against these individuals would be relevant,
that is not the only relevant piece of information potentially
contained in these personnel files.

Ms. Craig-Wood has alleged

not only that Ms. Beckley discriminated against her, but also
that Ms. Craig-Wood’s complaint to human resources was ignored.
She also alleges that Ms. Beckley issued Ms. Craig-Wood a final
written warning “in retaliation” for her having made the
complaint to human resources. (Doc. #3, ¶ 8).

Thus, if the

personnel files of these coworkers contain some evidence that
these coworkers ever complained to human resources but were not
disciplined for doing so, or that their complaints to human
resources were properly investigated, such documents would be
relevant to Ms. Craig-Wood’s allegations and must be produced.
In addition, Time Warner has asserted in its answer that Ms.
Craig-Wood was disciplined and given a final written warning
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because she was falsifying sales order forms. (Doc. #7, ¶8).

If

Ms. Craig-Wood can show that her coworkers were engaged in
similar activity, but were not disciplined for it, it may support
her claim that the real reason for Ms. Craig-Wood’s discipline
was discrimination or retaliation.

Thus, if there is any

information in these personnel files indicating that these
coworkers falsified documents or were otherwise engaged in
fraudulent activity, that information must also be produced to
Ms. Craig-Wood.
Therefore, Time Warner is ordered to produce any documents
in the personnel files of Ms. Tyus, Ms. Weiser, or Ms. Powe that
demonstrate any complaints these individuals made to human
resources, any discipline they received thereafter, and any
investigation human resources conducted in response to their
complaints.

Time Warner must also produce any documents which

might show that these coworkers were engaged in fraudulent
activities and whether or not they were disciplined for those
activities.
ii. Job Descriptions for All Positions Worked
Ms. Craig-Wood has asked for the job descriptions for all
positions worked by Ms. Beckley and the above named coworkers.
Time Warner asserts that it has produced the job description for
Ms. Craig-Wood and that the other three coworkers held that same
position as Ms. Craig-Wood at the time of her allegations, so
that job description applies equally to them.

As to any other

positions that these individuals have held, Time Warner argues
these job descriptions are not relevant to Ms. Craig-Wood’s
claims. This Court agrees with Time Warner.
for

Any job descriptions

positions that these individuals held before or after the

time they held the same position as Ms. Craig-Wood have no
bearing on Ms. Craig-Wood’s claims that Ms. Beckley and the human
resource department discriminated or retaliated against her
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because of her race and age.
iii. Job Assignments and Area Assignments
Ms. Craig-Wood has asked for documents regarding “job
assignments” and “area” assignments for Ms. Beckley and the above
named coworkers.

Without additional facts, it is difficult to

know what is meant by the terms “job assignments” and “area”
assignments.

Ms. Craig-Wood asserts in her motion that this

information will show the “significant difference in the
production of coworkers assigned to profitable areas as well as
Plaintiff being assigned to unprofitable areas.

Documents and

statistics will show that the number of sales both by time and
distance and services sold by Plaintiff’s coworkers was
fraudulent.” (Doc. #35, p.7).
Ms. Craig-Wood, however, has not asserted a claim that she
was discriminated or retaliated against by being placed in an
unprofitable area, so these documents are not relevant for this
purpose.

If there are documents that indicate that services sold

by Ms. Craig-Wood’s coworkers were fraudulent, however, then
those documents would be relevant to Ms. Craig-Wood’s claims
because they might demonstrate that she was disciplined or
terminated for falsifying documents when others were not.
Time Warner has interpreted the terms “job assignments” and
“area” assignments to mean that Ms. Craig-Wood is requesting
customer addresses to which each coworker was assigned.

Time

Warner maintains that it does not have any record of the specific
addresses assigned to these three individuals during that period
because they no longer exist.

The only potential documents Time

Warner has that might be responsive are document reflecting the
number of addresses assigned to a particular coworker.

To the

extent these records are available, Time Warner is ordered to
produce them.

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iv. Commissions
Ms. Craig-Wood asks for copies of “all commissions paid” to
Ms. Beckley and the above named coworkers.

Time Warner argues

that these requests are not likely to lead to the discovery of
admissible evidence because Ms. Craig-Wood has not argued she was
discriminated against or retaliated against by being paid less
commission than these individuals.

However, these commission

documents might demonstrate that Ms. Beckley and these coworkers
were engaged in fraudulent activity and were therefore paid
higher commissions.

If Ms. Craig-Wood can show that her

coworkers or her supervisor were engaging in fraudulent activity,
that information may support Ms. Craig-Wood’s claim that the real
reason she was disciplined or terminated was not for fraudulent
activity but because of discrimination or retaliation.
Therefore, this information is relevant and must be produced.
B. Unemployment Claim Files
In document request no. 28, Ms. Craig-Wood has asked for
copies of all documents provided to the Ohio Department of Job
and Family Services and/or the Unemployment Compensation Review
Commission which explain the reason for the termination of Ms.
Craig-Wood, Bianca Beckley, Tenesia Tyus, Carmella Weiser, and Ty
Harris.
As noted above, Ty Harris is not involved in Ms. CraigWood’s allegations nor is he a comparable employee. Therefore,
the reasons for his termination are irrelevant to this case.
As to the remaining individuals listed, Ms. Craig-Wood is
entitled to these documents because they may demonstrate that Ms.
Beckley as well as coworkers Ms. Tyus and Ms. Weiser were or were
not terminated for engaging in fraudulent activity.

If Ms.

Craig-Wood can demonstrate that Ms. Beckley was herself engaging
in fraudulent activity, then it may support her claim that the
reason for Ms. Craig-Wood’s termination was not fraudulent
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activity, but instead discrimination and retaliation.

Similarly,

if she can demonstrate that her coworkers were terminated for
reasons other than fraudulent activity, it may support her claim
that discrimination and retaliation were the real reason for Ms.
Craig-Wood’s termination.
IV. Conclusion
Ms. Craig-Woods motion to compel (Doc. #35) is granted in
part and denied in part. Time Warner is ordered to produce
documents to Ms. Craig-Wood consistent with this opinion within
fourteen days.
V. Procedure on Objections
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A);

Fed.R.Civ.P. 72(a); Eastern Division Order No. 91-3, pt. I., F.,
5.

The motion must specifically designate the order or part in

question and the basis for any objection. Responses to objections
are due fourteen days after objections are filed and replies by
the objecting party are due seven days thereafter.

The District

Judge, upon consideration of the motion, shall set aside any part
of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge. S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge

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