Snelling v. ATC Healthcare Services Inc. et al
Filing
61
OPINION AND ORDER granting in part and denied in part Motion to Compel, Doc. No. 39 . Signed by Magistrate Judge Norah McCann King on 2/07/13. (rew1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAWN SNELLING,
Plaintiff,
v.
Civil Action 2:11-CV-983
Judge Sargus
Magistrate Judge King
ATC HEALTHCARE SERVICES, INC.,
et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff’s
Motion to Compel, Doc. No. 39.
to Compel.
Defendants oppose Plaintiff’s Motion
Defendants ATC Healthcare Services, Inc. and Nursemate,
Inc’s Memorandum Contra Plaintiff’s Motion to Compel (“Defendants’
Response”), Doc. No. 48.
Plaintiff has filed a reply.
Plaintiff’s
Reply in Support to Plaintiff’s Motion to Compel (“Plaintiff’s
Reply”), Doc. No. 49.
For the reasons that follow, Plaintiff’s Motion
to Compel is GRANTED in part and DENIED in part.
I.
Background
Plaintiff Dawn Snelling, acting on behalf of herself and a class
of plaintiffs, brings this action against defendants ATC Healthcare
Services Inc., and Nursemate, Inc., seeking unpaid overtime
compensation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §
202, et seq., and the Ohio Minimum Fair Wage Standards Act, O.R.C. §
4111.03.
following:
The First Amended Complaint, Doc. No. 47, alleges the
Defendants provide nursing care to prisons throughout the state
of Ohio.
Id at ¶¶ 37, 40.
Plaintiff has worked as a nurse for
defendants and provided nursing care to prisoners at various state-run
prisons.
Id. at ¶ 40.
Plaintiff and other nurses were paid on a
weekly basis at an hourly rate.
Id. at ¶¶ 39, 43.
On various
occasions since November 3, 2008, plaintiff and other nurses worked in
excess of forty hours per week and defendants, knowingly and
willfully, failed to pay overtime premiums in violation of the FLSA.
Id. at ¶¶ 49-50.
Defendants “fraudulently altered the payroll
records” of plaintiff and other nurses, reduced their overtime rates,
and reduced their regular hourly rates to prevent them from receiving
the proper amount of overtime pay.
Id. at ¶¶ 52-54.
Defendants now seek to compel responses to interrogatories and
document requests.
II.
Standard
Determining the proper scope of discovery falls within the broad
discretion of the trial court.
Lewis v. ACB Bus. Servs., Inc., 135
F.3d 389, 402 (6th Cir. 1998).
Rule 37 of the Federal Rules of Civil
Procedure authorizes a motion to compel discovery when a party fails
to provide a proper response to interrogatories under Rule 33 or
requests for production of documents under Rule 34.
37(a)(3)(B).
Fed. R. Civ. Pro.
“The proponent of a motion to compel discovery bears the
initial burden of proving that the information sought is relevant.”
Martin v. Select Portfolio Serving Holding Corp., No. 1:05–cv–273,
2006 U.S. Dist. LEXIS 68779, at *2 (S.D. Ohio Sept. 25, 2006) (citing
Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 154, 159 (D.D.C.
2
1999)).
Finally, the party moving to compel discovery must certify
that it “has in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an effort
to obtain it without court action.”
also S.D. Ohio Civ. R. 37.2.
Fed. R. Civ. P. 37(a)(1).
See
This prerequisite has been met in this
case.
III. Discussion
Plaintiff seeks to compel response to the following
interrogatory:
3. Please provide a list of all individuals, including his
or her name, sex, residential and business addresses,
residential
and
business
telephone
numbers,
email
addresses, job title, dates of employment, social security
numbers, and rate of pay throughout his or her employment,
that Defendant has employed in the State of Ohio as hourly
paid employees from November 3, 2008 through the present.
Plaintiff’s Motion to Compel, p. 5.
Plaintiff also seeks to compel
response to the following document requests:
3. Produce Plaintiff’s complete personnel file, including,
but not limited to, forms, memoranda, communications,
performance appraisals, payroll records, records reflecting
any term of compensation or benefits, raises, changes in
compensation or benefits, and any other document that has
ever been contained in such file.1
. . .
9. Produce documents sufficient to identify the names, last
known address and/or any and all forwarding addresses,
email addresses, hire dates, titles and termination dates
and
reason
for
termination,
if
applicable,
of
all
individuals identified in response to Interrogatory No.3
above.
. . .
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It is unclear why this document request is included in Plaintiff’s Motion to Compel. The request is not specifically
addressed in the motion and defendants’ response to the request provides that they would “produce all documents,
which are non-privileged, and are relevant and response to this request.” Plaintiff’s Motion to Compel, p. 5.
3
13. Produce all records, including but not limited to work
schedules
for
individuals
identified
in
response
to
Interrogatory No.3 above showing the days on which, and the
hours during which, any and all individuals, including
Plaintiff, worked for Defendant since January 1, 2008.
. . .
14. Produce all records including personnel and payroll
records
for
individuals
identified
in
response
to
Interrogatory
No.
3
above
showing
the
amount
of
compensation Defendant paid to each individual, including
Plaintiff, since January 1, 2008.
. . .
17. Produce any and all records pertaining to all persons
employed by Defendants since November 1, 2008 where such
records contain any or all of the information that
employers
are
required
to
maintain
concerning
their
employees pursuant to 29 C.F.R. 516.2 and/or O.R.C.
4111.08.
Id.
Defendants have not specifically objected to any particular
interrogatory or document request or any portion thereof.
Instead,
defendants oppose Plaintiff’s Motion to Compel on two grounds.
Defendants first argue that the names and contact information of the
Ohio nurses employed by defendants is not discoverable until the Court
rules on plaintiff’s motions to certify a class, Doc. Nos. 10, 36.
Defendants’ Response, pp. 1, 3-4, 6-10.
In this regard, defendants
argue that Plaintiff’s Motion to Compel should be denied and discovery
should be limited to the 12 employees whom plaintiff presently
identifies as the individuals whose pay rates were changed.
Id. at p.
1.
Defendants’ first argument is moot.
On December 4, 2012, the
Court granted Plaintiff’s Motion for Conditional Class Certification,
Doc. No. 10, and conditionally certified a statewide class for
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plaintiff’s FLSA claim “consisting of all [d]efendants’ current and
former Ohio nurses, since November 3, 2008, who could potentially
pursue claims for FLSA overtime and minimum wage violations.”
Opinion and Order, Doc. No. 54, pp. 2, 7-8, 11.
See
The Court also
ordered defendants to “produce contact information for the nurses they
employed during the relevant period.”
Id. at p. 11.
Defendants also opposes Plaintiff’s Motion to Compel on the
ground that the requested discovery is irrelevant to plaintiff’s sole
claim — “the modification of overtime hour pay rates.”
Response, p. 4.
Defendants’
Defendants maintain that “the only discovery
necessary” is that “necessary to determine what rates of pay were paid
to employees who worked overtime in comparison to their non-overtime
rates of pay.”
Id. at p. 5.
Defendants further maintain that the
actual payroll records are not relevant because the information
plaintiff needs is contained in the payroll report summaries that have
already been provided to plaintiff.
Id.
Those reports show each
nurse’s “employee number, hours worked and rate of pay for each hour.”
Id. at p. 2.
Defendants’ second argument is without merit.
Plaintiff seeks
unpaid overtime compensation under the FLSA for defendants’ alleged
knowing and willful failure to pay overtime premiums to non-exempt
nurses who worked in excess of forty hours per week.
Amended Complaint, ¶¶ 49-54.
See First
Plaintiff’s FLSA claims are not, as
defendants argue, based solely on “the modification of overtime hour
pay rates.”
The conditional class is accordingly not limited to FLSA
claims based on a modification of overtime pay rates; the class
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consists of all of defendants’ “current and former Ohio nurses, since
November 3, 2008, who could potentially pursue claims for FLSA
overtime and minimum wage violations.”
No. 54, pp. 2, 7-8, 11.
See Opinion and Order, Doc.
Furthermore, plaintiff alleges, inter alia,
that defendants “fraudulently altered the payroll records” of
plaintiff and other nurses.
Id. at ¶ 52.
The actual payroll records
and time sheets are therefore relevant to a determination of whether
defendants properly paid its nurses overtime during the relevant time
period.
Plaintiff maintains that the discovery requests at issue seek
the identity of the putative class, contact information for
the putative class, all payroll records and timesheets of
the putative class (including Plaintiff) which Defendants
are required to maintain under federal and state law,
schedules for the three year time period, and documents
sufficient to identify the hourly rate for each putative
class member.
Id. at p. 8.
It is not apparent to the Court how, given the foregoing
explanation, the “sex” and “social security numbers” for the Ohio
nurses employed by defendants, or documents relating to the “reason
for termination” of any of the Ohio nurses, is relevant to plaintiff’s
claims.
The First Amended Complaint does not allege any form of
retaliation or discrimination, let alone sex discrimination.
The sex
and social security numbers, and the basis for termination, of the
Ohio nurses is therefore not likely to lead to the discovery of
admissible evidence.
It is also unclear to the Court why plaintiff’s 13th, 14th and
17th document requests seek documents dating to January 1 and November
1, 2008.
See Plaintiff’s Motion to Compel, p. 5.
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The class
conditionally certified is limited to the Ohio nurses employed by
defendants since November 3, 2008; see Opinion and Order, Doc. No. 54,
pp. 2, 7-8, 11; the misconduct alleged in the First Amended Complaint
is limited to the period beginning November 3, 2008; see First Amended
Complaint, ¶¶ 37, 49, 58-59; and Plaintiff’s Motion to Compel
represents that plaintiff seeks only records from “the three year time
period” beginning November 3, 2008.
See Motion to Compel, p. 8.
The
personnel and payroll records, work schedules, and other documents
sought prior to that date are therefore not relevant to plaintiff’s
claims.
Based on the foregoing, Plaintiff’s Motion to Compel, Doc. No. 39
is GRANTED in part and DENIED in part.
Plaintiff is not entitled to
discovery of the sex or social security numbers, or documentation of
the reason for the termination, of any of the Ohio nurses employed by
defendants.
Plaintiff’s 13th, 14th and 17th document requests are
further limited to the period beginning November 3, 2008.
In all
other respects, Plaintiff’s Motion to Compel is GRANTED.
February 7, 2013
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
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