U.S. Equal Employment Opportunity Commission v. Akebono Brake Corporation

Filing 80

ORDER granting EEOC's 73 MOTION to Compel as narrowed to comport with the proportionality of this case. Specifically, the EEOC's request for entry upon land is granted to the extent it requests two counsel for the EEOC and a legal photographer to enter, inspect, and take still photography of the "washer inspection" area not to exceed 60 minutes on a date of Akebono's choosing before the close of discovery under the court's Fourth Amended Scheduling Order. Signed by Magistrate Judge Shiva V Hodges on 3/15/2018. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
U.S. Equal Employment
Opportunity Commission,
Plaintiff,
vs.
Akebono Brake Corporation,
Defendant.

Akebono Brake Corporation,
Third-Party Plaintiff,
vs.
Carolina Personnel Services, Inc.,
and Carolina Industrial Staffing,
Inc., Successor in Interest for
Carolina Personnel Services, Inc.
Third-Party Defendants.

)
)
)
)
)
)
)
)
)
)
)

C/A No.: 3:16-3545-CMC-SVH

ORDER

)
)
)
)
)
)
)
)
)
)
)
)
)
)

This religious discrimination employment case was brought by the
United States Equal Employment Opportunity Commission (“EEOC”) based
on a charge of discrimination filed by Clintoria Burnett (“Burnett”) against
Akebono Brake Corporation (“Akebono”) pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). The case comes

before the court on the EEOC’s motion pursuant to Fed. R. Civ. P. 37, to
compel Akebono entry onto its West Columbia, South Carolina, facility
(“Facility”) for the purposes of inspection and videotaping (“Request for
Entry”). [ECF No. 73]. The motion having been fully briefed [ECF Nos. 75
and 79], it is ripe for disposition. All pretrial proceedings in this case were
referred to the undersigned pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). For the reasons that
follow, the court grants in part and denies in part the EEOC’s motion to
compel.
I.

Procedural History
Burnett alleges she was hired by staffing agency Carolina Personnel

Services (“CPS”) for a job with Akebono. [ECF Nos. 14 at ¶¶ 38; 19 at ¶6].
The EEOC alleges Akebono revoked the offer of employment to Burnett after
being informed of her religious belief prohibiting her from wearing pants.
[ECF No. 19 at ¶¶ 41, 48]. As a defense, Akebono argues that Burnett’s
request for accommodation by being permitted to wear skirts in lieu of pants
at the Facility was unreasonable and would have created an undue hardship.
[ECF No. 72 at 10]. It maintains in its response to the EEOC’s interrogatories
that accommodation would have been “unreasonable due to the nature of
Akebono’s business and specifically the work performed at the West
Columbia Akebono location.” [ECF No. 73-6 at 10]. It claims that
2

“[i]ndividuals wearing loose clothing present a safety risk as their clothing
may get caught in the machinery, causing serious injury to the individual.”

Id.
The EEOC previously served on Akebono a broader request for entry
upon land for inspection and other purposes on October 13, 2017. [ECF No.
73-8]. Akebono objected to the EEOC’s request as unduly speculative,
prejudicial, inadmissible, unduly burdensome, overly broad, unreasonable as
to time and manner, subject to confidentiality concerns, and intended for the
purposes of intrusion, harassment, and increasing the costs of litigation.
[ECF No. 73-9]. On December 7, 2017, the court held a telephone conference
to address the discovery dispute and denied the EEOC’s motion to compel
without prejudice to a more narrowly-circumscribed inspection request. [ECF
No. 61]. The EEOC subsequently served Akebono with the Request for Entry
on December 27, 2017, that requested access to fewer areas of the Facility.
[ECF No. 73-10]. Akebono objected to the EEOC’s Request for Entry on
January 26, 2018, for reasons similar to those given in response to the
earlier, broader request. [ECF No. 73-11]. The court again addressed the
discovery dispute during a telephone conference on February 7, 2018, and
granted the EEOC leave to file a motion to compel. [ECF No. 67]. The EEOC
filed the instant motion on February 20, 2018. [ECF No. 73 at 1–2]. In the
motion, the EEOC requests that it be permitted to enter, inspect and
3

videotape: (1) areas of the Facility where “the position described by [Akebono
Safety Manager] Tom Stanfield in his deposition as ‘washer inspection’ is
performed”1; (2) areas where employees of CPS were placed to perform
general assembly positions during the period from October 28, 2014, through
October 31, 20142; and (3) all walkways to and from the locations in (1) and
(2).3 Id.
II.

Discussion
A.

Legal Standard

Pursuant to Fed. R. Civ. P. 34(a),
A party may serve on any other party a request within the scope
of Rule 26(b) . . . (2) to permit entry onto designated land or other
property possessed or controlled by the responding party, so that
the requesting party may inspect, measure, survey, photograph,
test, or sample the property or any designated object or operation
on it.
A party seeking discovery may move for an order compelling inspection if an
adverse party “fails to respond that inspection will be permitted—or fails to
permit inspection—as required under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iv).

Burnett testified that she was informed by CPS that she would be
inspecting washers. Burnett Dep. 69:23–70:22, 134:3–5, 150:5–22.
2 Susan Greene (“Greene”), operations manager for CPS, testified that
Burnett would have been assigned to an automated assembly position.
Greene Dep. 200:21–201:3, 246:13–22.
3 The EEOC has stipulated that it will agree for its counsel and a certified
legal videographer to enter, inspect, and videotape for a period of less than
two hours on a Sunday. [ECF No. 73 at 14–15 and 18].
1

4

The party seeking discovery must establish its relevancy and
proportionality. Accolla v. Speedway, LLC, No. 0:17-1972-JMC, 2017 WL
5523040, at *2 (D.S.C. Nov. 17, 2017) (citing Wilson v. Decibels of Or., Inc.,
No. 1:16-855-CL, 2017 WL 1943955, at *2 (D. Or. May 9, 2017)). Fed. R. Civ.
P. 26(b)(1)states:
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 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.

Id. The court must limit the frequency or extent of discovery if it determines
that:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that is
more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule
26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C)(i)–(iii).
In Belcher v. Bassett Furniture, 588 F.2d 904, 908 (4th Cir. 1978), the
court recognized that “a greater inquiry into the necessity for inspection” was
5

warranted because “entry upon a party’s premises may entail greater
burdens and risks than mere production of documents.” Accordingly, “the
degree to which the proposed inspection will aid in the search for truth must
be balanced against the burdens and dangers created by the inspection.” Id.
“It has been held that the burden rests on the objecting party to
convince the court that the inspection request is unnecessary.” North

Carolina Environmental Justice Network v. Taylor, No. 4:12-154-D, 2015 WL
1630602, at *3 (E.D.N.C. Jan. 14, 2015) (citing Arkansas Game & Fish

Comm’n v. United States, 74 Fed. Cl. 426, 432 (Nov. 16, 2006)); see also
Accolla, 2017 WL 5523040, at *2 (providing that “the party objecting has the
burden of showing the discovery should not be allowed and doing so through
‘clarifying, explaining and supporting its objections with competent
evidence’”) (quoting Wilson, 2017 WL 1943955, at *2; La. Pac. Corp. v. Money

Mkt. 1 Institutional Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 2012)).
B.

Analysis
1.

Relevancy of the EEOC’s Request for Entry

The EEOC argues that inspection of the Facility is relevant to
Akebono’s defense that accommodating Burnett would have created an undue
hardship on account of the nature of its business and the work performed at
its Facility presented a safety risk to individuals wearing loose clothing.
[ECF No. 73 at 11]. The EEOC maintains that Akebono has “put the physical
6

condition and nature of its facility and operations . . . at issue by asserting a
safety/undue hardship defense.” Id. at 12. The EEOC contends that because
the deposition testimony of Akebono’s employees suggests that walkways,
pallets, conveyor belts, machine corners, processes, and other physical and
spatial elements of its Facility presented a safety risk to an individual
wearing a skirt, it should be allowed to inspect the Facility to assess the
validity of these claims. Id. at 12.
Akebono argues that the EEOC’s Request for Entry and inspection of
its Facility is not relevant because the record contains no evidence as to the
length, type, or material of the skirt that Burnett proposed to wear in lieu of
pants. [ECF No. 75 at 12]. Akebono maintains that without this information,
any conclusions drawn from inspection of its Facility would be highly
speculative. Id. It claims the EEOC is seeking to undertake a “fishing
expedition” for evidence that might support its case. Id. at 13.
Although Akebono asserts that the record contains no evidence as to
the length, type, or material of the skirt that Burnett proposed to wear, the
court notes that Akebono has had an opportunity to question her about the
length, type, and material of her skirts during a deposition on September 18,
2017. [ECF No. 73-3]. It would be unreasonable for the court to deny the
EEOC’s request for entry and inspection on account of the record lacking
information that Akebono could have obtained during Burnett’s deposition.
7

Akebono cites Belcher, 588 F.2d at 908, Johnson v. Mundy Indus.

Contractors, Inc., No. 7:01-990, 2002 WL 31464985 (E.D.N.C. Mar. 15, 2002),
and E.E.O.C. v. U.S. Bakery, No. 03-64-HA, 2004 WL 1307915 (D. Or. Feb. 4,
2004) as supporting its position that that the EEOC’s request is not relevant
to the case. In Belcher, 588 F.2d at 909, the court noted the defendant’s
premises had not been placed in issue because neither the complaint nor the
motion for discovery specified any manner of discrimination or department or
job classification in which discrimination had occurred. In Mundy Industrial

Contractors, the court found that the plaintiff had not demonstrated the
necessity for the inspection. 2002 WL 31464984, at *4. It noted that the
plaintiff had made “little attempt to demonstrate the inspection’s relevance”
and had not alleged that the physical aspects or features of the defendant’s
facility contributed to sexual harassment. Id.; see also U.S. Bakery, 2004 WL
1307915, at *4 (finding that inspection of the premises was not relevant to
the plaintiffs’ sexual harassment claim because they did not “assert that the
physical aspects or features of defendant’s facilities contributed to the alleged
harassment”); contra Flick v. Wellpoint, Inc., No. 08-211-JVB-PRC, 2009 WL
1564386, at *2 (N.D. Ind. Jun. 2, 2009) (finding that the plaintiffs’ request to
inspect the offices where the alleged sexual harassment occurred in order to
photograph the layout of the offices was relevant under Rule 26 because the
specific circumstances of the working environment was a key factor in
8

establishing that the hostile conduct was so severe or pervasive as to create
an abusive working environment).
Unlike the requests for entry and inspection in Belcher, Mundy

Industrial Contractors, and U.S. Bakery, Akebono’s premises are at issue in
the instant case because of its defense that safety concerns rendered
unreasonable Burnett’s accommodation request to wear a skirt. The court
considers the instant case to be more akin to Eirhart v. Libbey-Owens-Ford

Co., 93 F.R.D. 370, 371 (N.D. Ill. Dec. 10, 1981), in which the court recognized
that the female plaintiffs would have to prove that the height and weight
requirements imposed by the defendant were not “bona fide occupational
qualifications” necessary to perform job duties. Because Akebono claims that
its walkways, pallets, conveyor belts, machine corners, processes, and other
physical and spatial elements of its Facility present a safety risk that could
not be mitigated through reasonable accommodations of Burnett’s need to
wear a skirt, the request to inspect the Facility appears relevant to a defense.
2.

Proportionality of the EEOC’s Request for Entry

To determine whether the discovery request is proportional to the
needs of the case, the court should consider the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to

9

relevant information, the parties’ resources,4 the importance of the discovery
in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1).
a.

Importance of the Issues at Stake

The EEOC argues this case is important because it involves an
employer who is attempting to avoid obligations and liability under Title VII
by “hiding behind a staffing agency.” ECF No. 73 at 13 (citing Butler v. Drive

Auto. Indus. of Am., 793 F.3d 404, 410 (4th Cir. 2015) (providing “[t]he joint
employment doctrine thus prevents those who effectively employ a worker
from evading liability by hiding behind another entity, such as a staffing
agency”)). Akebono does not challenge the importance of the issues at stake
in a Title VII case, but maintains that the EEOC’s request is “highly
speculative” and “overreaching.” Because Akebono’s arguments are more
pertinent to the scope of the request, the importance of the issues at stake in
the action weigh in favor of the EEOC’s request.
b.

Amount in Controversy

The EEOC contends that a jury may award up to $300,000 in
compensatory and punitive damages, pursuant to the Civil Rights Act of
1991. [ECF No. 73 at 13]. Akebono maintains that the amount of back wages

Because Akebono does not challenge the resources of either party, it is
unnecessary for the court to evaluate this factor. See ECF No. 75 at 14.
4

10

owed to Burnett would be less than $10,000. [ECF No. 75 at 14]. It concedes
that the statutory damage cap is up to $300,000, but argues that the EEOC
should not be permitted entry upon land based on the statutory cap. Id.
Although the EEOC states that it is seeking compensatory and punitive
damages in this case in addition to Burnett’s backpay, it provides no basis or
estimate for the amount of compensatory damages. Based on the limited
information provided, the court is not persuaded that the EEOC is likely to
be awarded compensatory or punitive damages up to the statutory damage
cap. The undersigned finds that the amount in controversy factor weighs in
favor of Akebono.
c.

Parties’ Relative Access to Relevant Information

The EEOC argues that entry to the Facility is necessary to evaluate the
validity of its assertion that accommodating Burnett’s attire would present a
safety risk. [ECF No. 73 at 15]. It maintains that it cannot obtain an accurate
and meaningful visualization of the alleged safety concerns Akebono purports
to be present without inspecting the Facility. Id. at 14. Akebono argues that
inspecting and videotaping is unnecessary because the EEOC has Stanfield’s
testimony, which documents the various safety concerns that would arise
from an employee wearing a skirt. [ECF No. 75 at 5]. It maintains that
Stanfield’s deposition included “specific descriptions of the layout of
Akebono’s West Columbia facility, the machining and operations that go on in
11

each area, the type of clothing individuals are permitted to wear in each area,
and finished with a color-coded map of the facility.” Id. at 11. The EEOC
claims that the entry and inspection is necessary because Stanfield was
unable to answer a number of questions regarding safety concerns during his
deposition. [ECF No. 79 at 3].
Akebono cites Equal Employment Opportunity Commission v. Life

Technologies Corporation, 2010 WL 11553083 (D. Md. May 13, 2010), to
support its argument that the EEOC’s request for entry and videotaping is
duplicative of discovery already in the record. [ECF No. 75 at 12]. However,
in Life Technologies, the defendant did not maintain that its physical
premises precluded the requested accommodation. 2010 WL 11553083, at *2–
3. In addition, while Akebono points out that the record contained evidence
regarding the layout and safety concerns in the form of Stanfield’s testimony,
the evidence as to Akebono’s safety concerns lacks the detail of the evidence
in the record in Life Technologies.5 Thus, the parties’ relative access to

The court notes that in Life Technologies Corporation, 2010 WL 11553083,
at *1, the court pointed out that the plaintiff had rejected the defendant’s
offer of “a three hour inspection and videotaping either after business hours
or during non-peak hours.” It stated “[i]n light of the concessions Defendant
offered to avoid the need for this motion, it would appear that the parties
would be able to agree on a more limited inspection that would enable the
EEOC to obtain the photographs and diagram without the need of further
involvement of the court.” Id., at *3 n.1. Therefore, while the court granted
the defendant’s motion for a protective order prohibiting the inspection, it
indicated that a more limited scope of entry and inspection might be allowed.
5

12

relevant information weighs in favor of allowing the EEOC’s request for entry
and inspection.
d.

Importance of Discovery in Resolving the Issues

Given the conflicting testimony regarding the position in which Burnett
would have been placed if she had worked at Akebono, it is not clear that the
request will help to resolve the issues. Although the EEOC has indicated that
it seeks to use the video to show a jury how Burnett would have worked, it is
unclear whether the discovery gleaned from such a request would be
admissible, particularly if there is speculation about the position for which
she was hired. In addition, even if admissible, it is not clear to the
undersigned that the information gained from the request will significantly
add to the discovery already conducted to aid the trier in fact in resolving this
issue. However, if the EEOC is able to definitively show that Burnett could
have performed the essential functions of the job in a skirt, the discovery may
aid in resolving one issue in the case. The undersigned finds that an analysis
of the importance of the discovery in resolving the issues weighs equally to
both parties.
e.

Burden and Expense of Entry and Inspection

Akebono argues that the EEOC’s proposed entry, inspection, and
videotaping presents concerns with respect to safety, business disruption,
and privacy and confidentiality and is overly broad in scope. [ECF No. 75]. It
13

requests that, if the court is inclined to grant the EEOC’s request, it limit
inspection to the “washer inspector” area and use still photography, as
opposed to videography to protect confidential processes and maintain
employees’ privacy. Id. at 15.
The EEOC argues Akebono’s concerns related to inspection are
inconsistent with Akebono’s Human Resources Manager Wanda Herron’s
(“Herron’s”) deposition testimony that “a lot of visitors” came through its
Facility each week. [ECF No. 73 at 16 (citing Herron Dep. 59:20–61:8)]. The
EEOC maintains that use of videography is particularly important because
still photography cannot capture the movement of machines that Akebono
claimed would present safety risks. [ECF No. 73 at 18]. Akebono cites

Hoffman v. Fifth Generation, Inc., No. 14-2569-JM-JLB, 2015 WL 7582425,
at *3 (S.D. Cal. Nov. 25, 2015), and Soler v. County of San Diego, No. 14-470MMA (RBB), 2016 WL 3460255, at *4 (S.D. Cal. Jun. 24, 2016),6 as
recognizing that a videotaped site inspection poses significant safety risks.
Courts have allowed for entry in other employment settings that do not
present particular safety risks. See Campbell v. Sedgwick Detert, Moran &

Arnold, No. 11-642-ES-SCM, 2013 WL 1314429 (D.N.J. Mar. 28, 2013)
(allowing the plaintiff to videotape an inspection of the defendant’s office for a
The undersigned notes that the courts allowed the plaintiffs to enter and
inspect the defendant’s premises in both cases, but denied the plaintiffs’
requests to videotape the inspection.
6

14

period not to exceed 60 minutes at a date and time of the defendant’s
choosing); Morris v. Cabellas, No. 10-2559-EFM-GLR, 2011 WL 2516904 (D.
Kan. Jun. 23, 2011) (allowing for videotaping of the location where the
plaintiff was previously employed); Karlsson v. Kona Blue Water Farms,

LLC, No. 07-242-BMK, 2008 WL 11345940 (D. Haw. Jun. 23, 2008) (allowing
the plaintiff access to defendant’s dock space and vessels to record the
manner in which the he alleged feed bags were loaded during the course of
his employment).
The undersigned finds that requiring a business to allow a government
agency to visit its Facility to videotape its manufacturing and machining
process is a greater burden on Akebono related to safety, business disruption,
and privacy and confidentiality concerns than ordinary visitors. For this
reason, the undersigned finds the scope of the Request for Entry should be
granted in more-narrowly defined terms. Specifically, the undersigned grants
the motion to allow two counsel for the EEOC and a legal photographer to
enter, inspect, and take still photography of the “washer inspection” area
(consistent with the deposition testimony of Burnett and Stanfield) for 60
minutes on a date of Akebono’s choosing. As so narrowed, the undersigned
finds that the burden weighs in favor of the EEOC.

15

III.

Conclusion
In light of the analysis of the factors outlined in Fed. R. Civ. P. 26(b)(1),

the EEOC’s motion to compel is granted as narrowed to comport with the
proportionality of this case. Specifically, the EEOC’s request for entry upon
land is granted to the extent it requests two counsel for the EEOC and a legal
photographer to enter, inspect, and take still photography of the “washer
inspection” area (consistent with the deposition testimony of Burnett and
Stanfield) not to exceed 60 minutes on a date of Akebono’s choosing before the
close of discovery (April 10, 2018) under the court’s Fourth Amended
Scheduling Order [ECF No. 68].
IT IS SO ORDERED.

March 15, 2018
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

16