Dowell v. Cox Oklahoma Telecom LLC
Filing
28
ORDER granting 18 Motion to Compel. Signed by Honorable Timothy D. DeGiusti on 1/7/2019. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA
COURTNEY DOWELL,
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Plaintiff,
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V.
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COX OKLAHOMA TELECOM, LLC,
Case No. CIV-18-108-D
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Defendant.
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ORDER
Before the Court is Plaintiff’s Motion to Compel Discovery [Doc. No. 18].1 Defendant has
Responded [Doc. No. 24] and Plaintiff has Replied [Doc. No. 25]. The matter is fully
briefed and at issue.
BACKGROUND
Plaintiff began working for Defendant as a Retention Sales Specialist in February 2016.
In or around November 2016, Plaintiff complained to Defendant that a manager was
engaged in a quid-quo-pro sexual relationship with another employee. Later, Plaintiff
complained to Defendant that the time clock did not adequately record her work hours and
she was therefore being underpaid. In February 2017, Plaintiff informed Defendant that
she had been diagnosed with rheumatoid arthritis and as a result would need
accommodations and FMLA leave.
1
On December 4, 2018, Plaintiff filed a Motion for Expedited Consideration [Doc. No. 19]
of her Motion to Compel and the Court issued an Order [Doc. No. 20] granting expeditated
consideration on December 5, 2018.
Plaintiff contends that as a result of each of these complaints and the requests related to
her medical condition, Defendant subjected her to modified performance sales metrics,
selective enforcement of performance metrics, discipline for absences that should have
been protected under the FMLA, and denied her requests for FMLA leave. Defendant
terminated Plaintiff’s employment in May 2017.
Plaintiff brings this action against Defendant alleging claims of retaliation in
violation of the Fair Labor Standard Act (FLSA), retaliation for complaining of sexual
harassment pursuant to Title VII, retaliation and failure to accommodate in violation of the
Americans with Disabilities Act, 42 U.S.C. §12101, et seq., and FMLA interference and
retaliation. [Doc. No. 1 at 4-7]. Defendant contends Plaintiff “was terminated after her job
performance (as measured by specifically-identified objective metrics) fell below the
minimum acceptable level for four consecutive months.” [Doc. No. 24 at 1].
On March 16, 2018, Plaintiff propounded discovery requests to Defendant which
included requests for production of: (1) productivity standards for Plaintiff and her
department; and, (2) performance-related disciplinary documents for similarly situated
employees. [Doc. No. 18-5 at 5-6]; [Doc. No. 24 at 2]. A dispute between the parties arose
regarding Plaintiff’s Request for Production No. 4 which requests, in pertinent part:
REQ PROD NO 4: If any claimed misconduct or work rule violation
played a role in the decisions affecting the Plaintiff or is a part of your
affirmative defenses, denials or matters in avoidance, then produce:
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A. All warnings, notices, discipline, counseling or documents given
to the Plaintiff or included in the file of any of Defendant’s employee [sic]
regarding such matter;
...
E. For two years prior to Plaintiff’s termination and through the
present, records of similar infractions by any other employees of the
Defendant who are similarly situated to the Plaintiff together with the
complete disciplinary records related to such matters and records showing:
a.
the identity (name, home address, home phone number),
gender, job title, date of hire and prior disciplinary history of
such other employee;
b.
the identity (name, home address, home phone number),
gender, job title, date of hire of the person(s) imposing such
discipline.
[Doc. No. 18-5 at 5-6]. Defendant objected to this request as: (1) “vague and ambiguous,
unduly burdensome, and calls for a legal conclusion”; (2) Plaintiff has made no allegations
that “any such ‘comparators’ were treated more favorably than Plaintiff”; and, (3) the
request seeks information protected by the attorney-client privilege and work product
doctrine. Id. at 6. After conferring with Defendant, Plaintiff agreed to limit the scope of
Request for Production No. 4 to performance related disciplinary documents of employees
who “worked as Customer Retention Specialists under the same supervisors as Plaintiff in
the same location as Plaintiff and at the same time as Plaintiff.” [Doc. No. 18 at 8, 11].
Defendant claims to have complied with production as to the productivity standards
and objects to production of disciplinary documents of other employees. [Doc. No. 24 at
2-3]. Plaintiff requests the court to compel full responses within the limited scope to which
she agreed in conference with Defendant. [Doc. No. 18 at 8, 11].
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DISCUSSION
Control of discovery is entrusted to the sound discretion of the trial courts, and discovery
rulings will not be set aside “absent an abuse of that discretion.” S.E.C. v. Merrill Scott &
Associates, Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010); Punt v. Kelly Servs., 862
F.3d 1040, 1047 (10th Cir. 2017). “An abuse of discretion occurs when a judicial
determination is arbitrary, capricious or whimsical,” and the Tenth Circuit “will not
overturn a discretionary judgment by the trial court where it falls within the bounds of
permissible choice in the circumstances.” Punt, 862 F.3d at 1047 (quoting United States v.
Shumway, 112 F.3d 1413, 1419 (10th Cir. 1997) (internal quotation marks omitted in
original)).
The scope of discovery is controlled by Federal Rule of Civil Procedure 26(b)(1)
which provides that:
[u]nless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense and proportional to the needs
of the case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties' relative access to relevant information,
the parties' resources, the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery outweighs its
likely benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.
Rule 26(b)(1) is explicit that “information subject to discovery is not restricted to evidence
that would be admissible at trial.” McDaniel v. Momentive Specialty Chemicals Inc., CIV-
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13-1186-L, 2014 WL 12767571, at *2 (W.D. Okla. Jan. 15, 2014) (quoting In re Cooper
Tire & Rubber Co., 568 F.3d 1180, 1189 (10th Cir.2009)). Requested information need
only be relevant, and relevance is broadly defined to include “any matter that bears on, or
that reasonably could lead to other matter[s] that could bear on, any issue that is or may be
in the case.” Fed. Ins. Co. v. Indeck Power Equip. Co., CIV-15-491-D, 2016 WL 5173402,
at *2 (W.D. Okla. Sept. 21, 2016) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340, 351 (1978)). Of course, information subject to this broad definition of relevance must
be tethered to the claims and defenses in the case and proportional to the needs of the case.
Fed. R. Civ. P. 26(b)(1).
However, a request for production “must describe with reasonable particularity each
item or category of items to be produced.” Fed. R. Civ. P. 34(b)(1)(A). In responding to
a request for production, a party need only produce documents, electronically stored
information, and tangible things within its possession, custody or control. Fed. R. Civ. P.
34(a)(1). Any objection to a request for production must specify the objectionable part of
the request, include the grounds for the objection, and produce information responsive to
the non-objectionable portions of the request. Fed. R. Civ. P. 34(b)(2)(B) and (C). In
addition, the objection “must state whether any responsive materials are being withheld on
the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C).
I.
Documents Reflecting Performance Standards.
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Defendant states that it has produced: (1) the “emails from Plaintiff’s supervisor
communicating the objective standards to which Plaintiff and the other members of her
department [were] held for each month that Plaintiff received discipline for unacceptable
performance”;2 and, (2) “final scorecards for all Customer Retention Representatives who
worked with Plaintiff under the same supervisor for each month of Plaintiff’s
employment.” [Doc. No. 24 at 4, 5]. Plaintiff states that the production of the documents
related to performance standards is insufficient because: (1) Defendant produced
information only for the months she received discipline; and, (2) the documents produced
contain information that is not readable or usable. [Doc. No. 25 at 1, 2].
A. Scope of Production of Documents Regarding Performance Standards.
Plaintiff asserts that she requested documents related to performance standards for
the entire tenure of her employment with Defendant. [Doc. No. 25 at 2].
Defendant
produced performance standard documents only for the months Plaintiff received
disciplinary action for unacceptable performance and performance scorecards for
Plaintiff’s department for every month she was employed. [Doc. No. 24 at 4, 5]. Defendant
argues that Plaintiff has sufficient discovery to compare her performance with that of all
the employees under her supervisor during the months she was employed.
2
Defendant notes that Plaintiff’s December 2016 goals were not produced and that the
document will be produced when it is located. [Doc. No. 24 at 4].
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The Court notes Defendant concedes the relevance, for discovery purposes, of the
scorecards for the entire tenure of Plaintiff’s employment by its production thereof.
However, Defendant provides no explanation or argument as to why it finds the scorecards
for the entire tenure of Plaintiff’s employment relevant but not the performance standards
which dictated the content of those scorecards.
Plaintiff’s Complaint [Doc. No. 1] alleges, in part, that the performance standards
were modified over the course of her employment in response to various complaints and
requests she submitted to Defendant. Documents reflecting the performance standards for
Plaintiff’s department during the entire tenure of her employment are therefore relevant to
her claims. Accordingly, the Court finds that Defendant should be compelled to produce
documents related to the performance standards for both Plaintiff and her department for
the entire tenure of Plaintiff’s employment with Defendant.
B. Quality of Documents Produced.
Plaintiff asserts that there are discrepancies or errors in the performance standards
documents produced by Defendant which render the documents unreadable and unusable.
Plaintiff represents that these discrepancies are not apparent in the parties’ filings due to
redactions made for the purpose of attachment to Defendant’s Response. [Doc. No. 25 at
1]. Plaintiff represents that she has requested “usable and readable” versions of the
documents and that Defendant has not informed her whether such documents exist. Id. at
2. The Court directs Defendant to either produce readable and accurate copies or, if
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appropriate, inform Plaintiff that the copies previously produced are the best copies
available.
II.
Performance Related Disciplinary Documents for Plaintiff’s Comparators.
Plaintiff has limited the scope of the request for production to performance related
disciplinary records of employees who worked “under the same supervisors as Plaintiff in
the same location as Plaintiff at the same time as Plaintiff.” [Doc. No. 18 at 8, 11]. Plaintiff
compiled a list of fifty-six (56) employees within this limited scope. [Doc. No. 18-6].
Defendant argues that such production: (1) is overly burdensome; (2) is overbroad as
Plaintiff has failed to demonstrate that these employees are “similarly situated to her”; (3)
has “no relevant connection to Plaintiff’s claims; and, (4) “would intrude upon the privacy
interest of other, non-party employees.” [Doc. No. 24 at 7, 8]. Defendant proposes limiting
the scope of the request to “those employees on Plaintiff’s list who consistently fell below
the 2.0 overall scorecard goal.” Id. at 10.
The ultimate question about which Plaintiff seeks discovery through Request No. 4
is whether Defendant’s Performance Management Guidelines were enforced against her in
the same manner they were regarding other employees who likewise fell below
performance standards. The request for disciplinary records seeks information related to
Plaintiff’s allegation that Defendant terminated her based on “selective enforcement of
performance metrics.” Complaint [Doc. No. 1 at 4, 5, 7, 8]. As noted in Defendant’s
Response, “[t]he Cox Performance Guidelines state that if an employee does not achieve a
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score of at least 2.0, the employee will [] receive disciplinary action - and that the fourth
consecutive disciplinary action will result in termination.” [Doc. No. 24 at 10-11].
Upon review of the scorecards produced by Defendant, the Court notes that for each
month Plaintiff was employed, at least one employee other than Plaintiff scored below the
required 2.0 score. [Doc. No. 24-2]. The Cox Performance Management Guidelines state
that falling below the required minimum score in “any one month period will result in the
beginning of the performance management corrective action process.” [Doc. No. 24-3 at
5]. Therefore, the Court finds that disciplinary records for any employee who fell below
the 2.0 performance standard are relevant and discoverable in response to Request for
Production No. 4.
Based on the language of Defendant’s Performance Management Guidelines, the
Court specifically rejects Defendant’s argument that only disciplinary records for
employees “who consistently fell below” the standard would be relevant. See [Doc. No.
24 at 10] (emphasis added). The question is whether Defendant applied the Performance
Management Guidelines consistently across all employees who fell below the mandatory
standards, or whether Plaintiff was singled out. The requested information is relevant as it
bears directly on the issue of selective enforcement of performance metrics raised in
Plaintiff’s Complaint.
Nor is this production overbroad. Plaintiff seeks performance related disciplinary
records about other employees under the same supervisors, in the same location as her, and
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employed at the same time who were subject to the same performance standards. [Doc.
No. 18 at 8]; [Doc. No. 24 at 6-7]. Whether or not those employees were subjected to the
same disciplinary action bears directly on the issue of whether Plaintiff was subjected to
selective enforcement of the performance metrics.
Defendant asserts that Plaintiff cannot show that the employees for whom she
requests disciplinary documents are “similarly situated to her” and cites to Mestas v. Town
of Evansville, 17-CV-017-F, 2017 WL 6551288, at *3 (D. Wyo. July 21, 2017),
reconsideration denied, Mestas v. Town of Evansville, 17-CV-17-F, 2017 WL 6551391 (D.
Wyo. Aug. 25, 2017) and Roberts v. Target Corp., CIV-11-0951-HE, 2012 WL 4539202,
at *2 (W.D. Okla. Oct. 1, 2012).3 Defendant quotes Roberts, 2012 WL 4539202 at 2, in
stating that “[p]retext is more likely to be shown by information that individuals with
conduct and evaluations similar to plaintiff were not terminated or disciplined.” [Doc. No.
24 at 9-10]. But this is exactly the kind of information Plaintiff seeks.
3
Although the respective district courts mention “similarly situated” employees and pretext,
the subject motions to compel were denied not because of an absence of showing the
employees were “similarly situated” but because the plaintiff failed to establish the
relevance of the requested information or because the request was overly broad. In Mestas,
the District Court determined the plaintiff failed to establish any relevance between the
requested discovery and his claims. Mestas, 2017 WL 6551288 at *3. The Mestas plaintiff
sought entire personnel files based on “the mere fact these five individuals worked with
[the p]laintiff.” Id. In Roberts, the District Court denied a motion to compel because it
found the temporal and geographical limitations under which the defendant agreed to
produce information were reasonable. Roberts, 2012 WL 4539202, at *2. The Roberts
court found the plaintiff’s request for “all documents [f]or all persons who were disciplined
or terminated from their employment for the same or similar reason as [p]laintiff and who
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In this case, Plaintiff has demonstrated the relevance of performance related
disciplinary documents for employees who fell below the performance standards and has
limited the temporal and geographical scope of her request to those employees employed
at the same time as her, in the same location, and under the same supervisors. The Court
finds that performance related disciplinary records for any of the fifty-six (56) employees
listed by Plaintiff who fell below the mandatory performance standard during any month
of Plaintiff’s employment are relevant to her claims of selective enforcement of
performance metrics and discoverable.
Defendant makes passing mention of the “burden [and] expense” of a “manual
search through 56 employees’ personnel records” without any supporting facts. Defendant
fails to indicate with any specificity: (1) what that expense would be; (2) why a manual
search is necessary given the digital nature of the previously produced documents; or, (3)
why a manual search, if necessary, would be burdensome given the degree to which
Plaintiff has agreed to limit her request. [Doc. No. 24 at 8, 12]. In light of the relevance of
the documents requested, the apparent minimal effort required to identify employees who
worked under the same supervisors as [p]laintiff” was overbroad as it contained “no
temporal or geographic limits.” Unlike the plaintiffs in Mestas and Roberts, Plaintiff here
has demonstrated the relevance of the documents requested, does not request entire
employee files, and has adequately limited the temporal and geographic scope of her
request.
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should have received disciplinary action pursuant to the Performance Management
Guidelines, and Defendant’s failure to support its vague assertion of “burden [and]
expense,” the Court finds the request is proportionate to the needs of this case. Id.
Finally, Defendant asserts privacy concerns relative to the production of non-party
employee disciplinary records, and centers its argument on caselaw stating that “the
personnel files of an entire class of employees should not be produced.” [Doc. No. 24 at
7-8].4 The Court agrees that “personnel files often contain sensitive personal information
. . . and it is not unreasonable to be cautious about ordering their entire contents disclosed
willy-nilly.” Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir. 2008). Indeed,
the “Supreme Court has underscored that “the requirement of Rule 26(b)(1) that the
material sought in discovery be ‘relevant’ should be firmly applied, and the district courts
should not neglect their power to restrict discovery [to protect] ‘a party or person from
annoyance, embarrassment, [or] oppression....’” Id. at 648 - 49 (quoting Herbert v. Lando,
441 U.S. 153, 177, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (quoting Fed.R.Civ.P. 26(c)(1)
(alterations in original)). However, “[t]his is not to say personnel files are categorically
out-of-bounds.” Id. at 649.
In Regan-Toughy, the plaintiff sought the production of a pharmacy employee’s
entire personnel file on the basis of a rumor that she had improperly accessed her pharmacy
4
The Court notes Plaintiff represents that it is her understanding Defendant’s privacy
objection was resolved in conference, “specifically due to entry of a protective order
governing the use of such information if produced.” [Doc. No. 25 at 3].
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records and disclosed her diagnosis. Id. at 645, 646. The Tenth Circuit affirmed the district
court’s finding that the request was overly broad but noted “[b]y way of example only, had
Toughy issued a more narrowly targeted request focused only on documents (whether from
the personnel file or elsewhere) that might indicate disciplinary action” they would be faced
with “a very different question.” Id. at 649. In this case, Plaintiff does not seek the
discovery of complete personnel files of an entire class of employees. Plaintiff limits the
scope of her request to performance related disciplinary documents from the personnel files
only of employees who, like her, fell below the minimum performance standard and
worked in the same location under the same supervisors during her employment by
Defendant.
As mentioned above, the Court entered an Agreed Protective Order [Doc. No. 11]
on July 6, 2018, which states, in pertinent part:
1. The following, if obtained during the course of this litigation, are deemed private
and confidential and subject to this Order:
D. For non-parties, performance appraisals, performance improvement plans
and disciplinary records.
[Doc. No. 11 at 1]. Clearly, the Court’s Order applies to and protects the disciplinary
records of non-party employees. Defendant’s reliance on privacy concerns is misplaced.
The Court concludes that Defendant should be compelled to produce all responsive
documents as to any employees on Plaintiff’s list [Doc. No. 18-6] who fell below the
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required minimum performance standard at any time during the tenure of Plaintiff’s
employment.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Compel [Doc. No. 18] is GRANTED.
Defendant is directed to produce: (1) readable and usable copies of all documents reflecting
the productivity standards/goals for Plaintiff and her department for the entire tenure of her
employment with Defendant; and, (2) all performance related disciplinary documents for
any and all employees identified on Plaintiff’s list [Doc. No.
18-6] who fell below the required minimum performance standard during any month of
Plaintiff’s employment.
IT IS SO ORDERED this 7th day of January 2019.
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