Amfosakyi v. Frito Lay
MEMORANDUM OPINION AND ORDER re 41 MOTION for Reconsideration by Samuel K. Amfosakyi. For the foregoing reasons, Amfosakyis motion to reconsider the plaintiffs motion to compel (Doc. 41), is DENIED. Signed by Magistrate Judge Martin C. Carlson on December 7, 2011. (kjn )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Civil No. 1:11-CV-651
(Chief Judge Kane)
(Magistrate Judge Carlson)
MEMORANDUM OPINION AND ORDER
Statement of Facts and of the Case
This is an employment discrimination action brought by Samuel Amfosakyi
against Frito Lay. (Doc. 1) In his complaint, Amfosakyi, a black male and a United
States citizen of Ghanaian heritage, alleges that the defendant discriminated against
him on the basis of his race and national origin when Frito Lay discharged him in
2009, acts which Amfosakyi alleges were taken in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §2000e-5, and the Pennsylvania Human Relations Act,
43 Pa.C.S. § 951. (Id.)
According to Amfosakyi’s complaint, from February 2005 through July 2009,
Amfosakyi was employed as a packer and cooker operator by Frito Lay, when
Amfosakyi was discharged for alleged dishonesty. (Id.) Amfosakyi asserts that one
fellow worker who was a white male committed similar workplace infractions but was
not discharged by Frito Lay. On the basis of this assertion of disparate treatment
Amfosakyi brings this employment discrimination action.
The parties are currently engaged in pretrial discovery. As part of this
discovery process Amfosakyi filed a motion for sanctions, (Doc. 23), and brief, (Doc.
24), which alleged that Frito Lay has wrongfully withheld discovery from him. The
discovery Amfosakyi sought related to a former co-worker, George Rye. Amfosakyi
alleged that Rye is caucasian and suggested that in 2006 Rye falsely claimed that
Amfosakyi ran over Rye’s foot while operating a piece of equipment at the Frito Lay
plant. Amfosakyi asserted that Rye’s misconduct in making this allegedly false claim
in 2006 did not lead to his termination, and cited this episode as proof of his claim
disparate treatment of workers by the defendant based upon race and national origin.
In order to support this claim, Amfosakyi sought Rye’s 2006 job attendance records
from Frito Lay, on the grounds that he believed that they would show that Rye was
not at work on the day in 2006 when he alleged that Amfosakyi injured his foot, thus
bolstering Amfosakyi’s assertion that Rye made false claims regarding this episode.
Frito Lay responded to this request in a threefold fashion: (1) informing
Amfosakyi and the Court that these 2006 attendance records do not exist for Rye; (2)
explaining that its 2009 discipline of Amfosakyi was completely unrelated to this
2006 incident in which Amfosakyi was alleged to have run over Rye’s foot, and
stipulating that the 2006 episode led to no discipline against any Frito Lay worker and
played no part in the company’s decision to discipline Amfosakyi three years later;
and (3) noting that Rye was, in fact, later discharged by the company for an unrelated
violation of the company’s rules of conduct. Dissatisfied with this threefold response,
Amfosakyi filed a motion for sanctions,
(Doc. 23), which we denied in a
memorandum opinion filed on November 17, 2011. (Doc. 37)
On December 5, 2011, the Court held a previously scheduled hearing on
another matter in this case, the defendant’s motion for sanctions arising out of
Amfosakyi’s alleged creation of a falsely back-dated letter which he produced in
discovery. At this hearing, Amfosakyi tendered to the Court a pro se motion which
we have construed as a motion to reconsider our prior denial of his motion for
sanctions. (Doc. 41) At the time of the hearing, we accepted this document, advised
Mr. Amfosakyi that we would treat it as a motion to reconsider, and advised him of
the exacting legal standards that apply to motions to reconsider.
Having carefully reviewed Amfosakyi’s pleading, (Doc. 41), we find that
reconsideration of our prior discovery ruling on his motion for sanctions is not
warranted. Therefore, for the reasons set forth below, we will deny this motion to
Motions to Reconsider–The Legal Standard
The legal standards that govern motions to reconsider are both clear, and clearly
compelling. “The purpose of a motion for reconsideration is to correct manifest errors
of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki,
779 F.2d 906, 909 (3d Cir. 1985). Typically such a motion should only be granted in
three, narrowly defined circumstances, where there is either : “(1) [an] intervening
change in controlling law, (2) availability of new evidence not previously available,
or (3) need to correct a clear error of law or prevent manifest injustice”. Dodge v.
Susquehanna Univ., 796 F.Supp. 829, 830 (M.D. Pa. 1992 ). As the United States
Court of Appeals for the Third Circuit has aptly observed:
“The purpose of a motion for reconsideration ... is to correct manifest
errors of law or fact or to present newly discovered evidence.” Max's
Seafood Café, 176 F.3d at 677 (quoting Harsco Corp. v. Zlotnicki, 779
F.2d 906, 909 (3d Cir.1985)). “Accordingly, a judgment may be altered
or amended if the party seeking reconsideration shows at least one of the
following grounds: (1) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when the court
granted the motion for summary judgment; or (3) the need to correct a
clear error of law or fact or to prevent manifest injustice.” Id. (citation
Howard Hess Dental Laboratories Inc. v. Dentsply Intern., Inc., 602 F.3d
237, 251 (3d Cir. 2010).
Thus, it is well-settled that a mere disagreement with the court does not
translate into the type of clear error of law which justifies reconsideration of a ruling.
Dodge, 796 F.Supp. at 830. Furthermore, "[b]ecause federal courts have a strong
interest in the finality of judgments, motions for reconsideration should be granted
sparingly." Continental Casualty Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943
(E.D. Pa. 1995). Moreover, it is evident that a motion for reconsideration is not a tool
to re-litigate and reargue issues which have already been considered and disposed of
by the court. Dodge, 796 F.Supp. at 830. Rather, such a motion is appropriate only
where the court has misunderstood a party or where there has been a significant
change in law or facts since the court originally ruled on that issue. See Above the
Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983).
These legal restrictions on motions to re-consider apply with particular force
to motions addressing orders in discovery matters, since discovery orders are
governed by Rule 26(b)(1) of the Federal Rules of Civil Procedure, and the scope of
discovery permitted under the Rules rests in the sound discretion of the court.
Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). Similarly,
rulings regarding the extent to which discovery may be compelled are matters
consigned to the court’s discretion and judgment, and it has long been held that
decisions regarding Rule 37 motions are “committed to the sound discretion of the
district court.” DiGregorio v. First Rediscount Corp., 506 F.2d 781, 788 (3d Cir.
1974). Thus, a court’s decisions regarding the conduct of discovery will be disturbed
only upon a showing of an abuse of discretion. Marroquin-Manriquez v. I.N.S., 699
F.2d 129, 134 (3d Cir. 1983)
Several basic guiding principles informed our initial resolution of this discovery
dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs
motions for sanctions, and provides that:
(c) Failure to Disclose, to Supplement an Earlier Response, or to
(1) Failure to Disclose or Supplement. If a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless. In addition to or instead of this sanction, the
court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's
fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions . . . .
Fed. R. Civ. P. 37(c).
The scope of what type of discovery may be compelled under Rule 37, and give
rise to sanctions, is defined, in turn, by Rule 26(b)(1) of the Federal Rules of Civil
Procedure, which provides as follows:
(1) Scope in General. Unless 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 –
including the existence, description, nature, custody, condition, and
location of any documents or other tangible things and the identity and
location of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant to the subject
matter involved in the action. Relevant information need not be
admissible at trial if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence. All discovery is subject to the
limitations imposed by Rule 26(b)(2)( C ).
Fed. R. Civ. P. 26(b)(1).
Rulings regarding the proper scope of discovery, and the extent to which
discovery may be compelled, are matters consigned to the court’s discretion and
judgment. This far-reaching discretion extends to rulings by United States Magistrate
Judges on discovery matters. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l
Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States,
943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate
judge's discovery ruling “is entitled to great deference and is reversible
only for abuse of discretion.” Kresefky v. Panasonic Commc'ns and Sys.
Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v.
BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)
(holding that discovery rulings are reviewed under abuse of discretion
standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223
F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's
resolution of discovery disputes deserves substantial deference and
should be reversed only if there is an abuse of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
This discretion is guided, however, by certain basic principles. Thus, at the
outset, it is clear that Rule 26's broad definition of that which can be obtained through
discovery reaches only “nonprivileged matter that is relevant to any party’s claim or
defense.” Therefore, valid claims of relevance and privilege still cabin and restrict the
court’s discretion in ruling on discovery issues. Furthermore, the scope of discovery
permitted by Rule 26 embraces all “relevant information” a concept which is defined
in the following terms: “Relevant information need not be admissible at trial if the
discovery appears reasonably calculated to lead to the discovery of admissible
A party moving under Rule 37 to compel discovery, or for sanctions, bears the
initial burden of proving the relevance of the requested information. Morrison v.
Philadelphia Housing Auth., 203 F.R.D. 195, 196 (E.D.Pa. 2001). Once that initial
burden is met, “the party resisting the discovery has the burden to establish the lack
of relevance by demonstrating that the requested discovery: (1) does not come within
the broad scope of relevance as defined under Fed. R. Civ .P. 26(b)(1), or (2) is of
such marginal relevance that the potential harm occasioned by discovery would
outweigh the ordinary presumption in favor of broad disclosure.” In re Urethane
Antitrust Litigation, 261 F.R.D. 570, 573 (D.Kan. 2009).
One other immutable rule defines the court’s discretion when ruling on
discovery matters. It is clear that the court cannot compel the production of things
that do not exist. Nor can the court compel the creation of evidence by parties who
attest that they do not possess the materials sought by an adversary in litigation.
Therefore, absent proof of deliberate spoliation of evidence, the court cannot sanction
the failure to produce that which no longer exists. See, e.g., AFSCME District Council
47 Health and Welfare Fund v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., No. 085904, 2010 WL 5186088 (E.D.Pa. Dec. 21, 2010); Knauss v. Shannon, No. 08-1698,
2009 WL 975251 (M.D.Pa. April 9, 2009).
Amfosakyi’s Motion to Reconsider Will Be Denied
With these legal guideposts in mind, we turn to consideration of Amfosakyi’s
motion to reconsider the denial of his prior sanctions motion. In this case, we find that
Amfosakyi has not satisfied the showing required for a motion to reconsider this
decision by demonstrating: “(1) [an] intervening change in controlling law, (2)
availability of new evidence not previously available, or (3) need to correct a clear
error of law or prevent manifest injustice”. Dodge v. Susquehanna Univ., 796 F.Supp.
829, 830 (M.D. Pa. 1992 ). Therefore, recognizing that “Federal courts have a strong
interest in the finality of judgments, [and] motions for reconsideration should be
granted sparingly,” Continental Casualty Co. v. Diversified Indus., Inc., 884 F.Supp.
937, 943 (E.D. Pa. 1995), we will deny this motion which does not meet the standards
set by law for such motions.
At the outset, we continue to believe that Amfosakyi’s sanctions motion rests
upon an untenable premise, since it invites the Court to sanction Frito Lay for failing
to produce documents even though Frito Lay has represented that the documents
sought by the plaintiff no longer exist. As we have previously noted, this Court
cannot compel the production of things that do not exist. Nor can the Court compel
the creation of evidence by parties who attest that they do not possess the materials
sought by an adversary in litigation. See, e.g., AFSCME District Council 47 Health
and Welfare Fund v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., No. 08-5904, 2010
WL 5186088 (E.D.Pa. Dec. 21, 2010); Knauss v. Shannon, No. 08-1698, 2009 WL
975251 (M.D.Pa. April 9, 2009). Therefore, the defendants’ assertion that they no
longer possess any responsive records that meet the description of the records sought
by Amfosakyi compels us to continue to deny these specific requests to sanction Frito
Lay for failing to produce these records, while noting that the parties have an on-going
responsibility to supplement their discovery disclosures. Fed. R. Civ. P. 26(e).
We also continue to find that Amfosakyi’s sanctions motion fails for yet another
reason: Amfosakyi has not shown that he would be entitled to this particular
personnel file information from the files of a co-worker relating to job attendance by
that co-worker in 2006. The discovery Amfosakyi seeks relates to a former coworker, George Rye, who the plaintiff suggests falsely claimed in 2006 that
Amfosakyi ran over his foot while operating a piece of equipment at the Frito Lay
plant. As we have previously explained, the difficulty with this proffer of relevance
by the plaintiff is that Frito Lay has stated that its 2009 discipline of Amfosakyi was
completely unrelated to this 2006 incident in which Amfosakyi was alleged to have
run over Rye’s foot. Moreover, Frito Lay reports that Rye was, in fact, later
discharged by the company for an unrelated violation of the company’s rules of
conduct, facts which actually make the company’s treatment of Rye similar to the
treatment accorded to Amfosakyi.
To the extent that Amfosakyi still claims that he is entitled to discovery of these
personnel files based upon his assertions relating to this one remote episode in 2006,
we continue to disagree. Corporate employees do not forfeit their personal privacy
in personnel records when their company is sued. Harris v. Harley-Davidson Motor
Co. Operations, Inc, No. 09-1449, 2010 WL 4683776, *5 (M.D.Pa Nov. 10, 2010).
Miles v. Boeing Co., 154 F.R.D. 112, 115 (E.D. Pa. 1994)(“personnel files are
confidential and discovery should be limited.”). Here, given the confidentiality which
attaches to third party personnel records, Amfosakyi’s proffer simply remains
insufficient to compel disclosure of Rye’s personnel attendance records from 2006.
In any event, the defendants have certified the non-existence of these records, a reply
which constitutes a complete response to this particular inquiry. See, e.g., AFSCME
District Council 47 Health and Welfare Fund v. Ortho-McNeil-Janssen
Pharmaceuticals, Inc., No. 08-5904, 2010 WL 5186088 (E.D.Pa. Dec. 21, 2010);
Knauss v. Shannon, No. 08-1698, 2009 WL 975251 (M.D.Pa. April 9, 2009).
Finally, Amfosakyi’s motion to reconsider does not in any way show that the
Court erred in concluding that Amfosakyi did not carry his burden of proof on the
question of whether any culpable spoliation has occurred here. Evidentiary rulings,
including rulings regarding whether a spoliation inference is appropriate, rest in the
sound discretion of the court. Ward v. Lamanna, 334 F.App’x 487, 492 (3d Cir. 2009).
That discretion is guided, however, by settled legal tenets, tenets which define both
the fundamental nature of spoliation and the appropriate sanctions for acts of
spoliation. “Spoliation is the destruction or significant alteration of evidence, or the
failure to preserve property for another's use as evidence in pending or reasonably
foreseeable litigation. Mosaid Techs., Inc. v. Samsung Elecs. Co., Ltd., 348 F.Supp.2d
332, 335 (D.N.J.2004).” Fortune v. Bitner. No. 01-111, 2006 WL 839346, *1
(M.D.Pa. March 29, 2006); see Ogin v. Ahmed, 563 F.Supp.2d. 539, 542 (M.D. Pa.
2008). In assessing a spoliation claim:
[R]elevant authority requires that four (4) factors be satisfied for the rule
permitting an adverse inference instruction to apply: 1) the evidence in
question must be within the party's control; 2) it must appear that there
has been actual suppression or withholding of the evidence; 3) the
evidence destroyed or withheld was relevant to claims or defenses; and
4) it was reasonably foreseeable that the evidence would later be
discoverable. Mosaid, 348 F.Supp.2d at 336 citing Brewer, 72 F.3d at
334; Scott v. IBM Corp., 196 F.R.D. 233, 248-50 (D.N.J.2000); Veloso
v. Western Bedding Supply Co., 281 F.Supp.2d 743, 746 (D.N.J.2003).
Additionally, the United States District Court for the District of New
Jersey recognized: “While a litigant is under no duty to keep or retain
every document in its possession, even in advance of litigation, it is
under a duty to preserve what it knows, or reasonably should know, will
likely be requested in reasonably foreseeable litigation.” Mosaid, 348
F.Supp.2d at 336 (quoting Scott, 196 F.R.D. at 249).
Ogin,563 F.Supp.2d at 543.
In this case, we continue to find that Amfosakyi has not carried his threshold
burden of showing any culpable spoliation of evidence at this time. Since Amfosakyi
has not carried his threshold burden of demonstrating some culpable spoliation of
evidence, we will deny this motion.
In this case, finding no “(1) intervening change in controlling law, (2)
availability of new evidence not previously available, or (3) need to correct a clear
error of law or prevent manifest injustice,” Dodge v. Susquehanna Univ., 796 F.Supp.
829, 830 (M.D. Pa. 1992 ), we conclude that this motion to reconsider must be denied.
For the foregoing reasons, Amfosakyi’s motion to reconsider the plaintiff’s
motion to compel (Doc. 41), is DENIED.
So ordered this 7th day of December 2011.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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