Watson-Miller v. Gibson

Filing 49

ORDER granting in part and denying in part 28 Motion to Compel. Signed by US Magistrate Judge Veronica L. Duffy on 7/12/2016. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
REBECCA WATSON-MILLER,

4:14-CV-04112-LLP

Plaintiff,
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO COMPEL

vs.
ROBERT MCDONALD, SECRETARY OF
VETERANS AFFAIRS;

DOCKET NO. 28

Defendant.
INTRODUCTION
This matter is pending before the court on plaintiff Rebecca WatsonMiller’s amended complaint alleging claims of discrimination, harassment,
hostile work environment, constructive discharge, and retaliation against the
Department of Veterans Affairs, plaintiff’s former employer. See Docket No. 9.
Ms. Watson-Miller has filed a motion for an order compelling defendant Robert
McDonald, the Secretary of Veterans Affairs (“VA”), to produce certain
discovery. See Docket No. 28. The district judge, the Honorable Lawrence L.
Piersol, referred Ms. Watson-Miller’s motion to this magistrate judge for a
decision. See Docket No. 38.
FACTS
Ms. Watson-Miller, now a 60-year old woman, was hired in June, 2007,
by the VA as a psychologist in the Mental Health Service Line in the VA facility

in Sioux Falls, South Dakota. She remained in the position of a clinical
psychologist for the duration of her employment with the VA until she resigned
April 3, 2013. From 2008 to 2012, Dr. Jerry Buchkowski was Ms. WatsonMiller’s supervisor. Dr. Kyle Lythgoe supervised Ms. Watson-Miller in 2012
and 2013. Dr. Buchkowski reported to Dr. Victor Waters, Chief of Staff.
Ms. Watson-Miller claims she was denied opportunities for training, for
additional job duties and a supervisory job; that she was given an unequal
work load; denied leave requests; and that her job duties were interfered with.
Ms. Watson-Miller claims the VA’s actions were discriminatory as to her age
and disability. Her disabilities consist of degenerative joint disease, bilateral
chondromalacia of the patella, interstitial markings in both lungs, pulmonary
fibrosis, depression, anxiety, and diabetes. In her amended complaint,
Ms. Watson-Miller alleges claims of:
(1)

discrimination and harassment under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 633a and 42 U.S.C.
§ 2000e-16(a);

(2)

discrimination and harassment under the Americans with
Disabilities Act (ADA), 29 U.S.C. § 791 and 42 U.S.C.
§§ 1981a(a)(2) and 12117(a);

(3)

retaliation under 29 U.S.C. § 523 and 42 U.S.C. § 12203;

(4)

retaliation under 42 U.S.C. §§ 2000e-3 and 2000e-16; and

(5)

constructive discharge.

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Ms. Watson-Miller seeks compensatory and punitive damages, front pay, back
pay, reinstatement, pre- and post-judgment interest, fees, costs, and attorney’s
fees. See Docket No. 9.
Ms. Watson-Miller filed the instant motion to compel on May 18, 2016.
See Docket No. 28. Two days later the VA filed a motion for summary
judgment in its favor, which motion remains pending before the district court.
See Docket No. 30.
The discovery dispute centers around Ms. Watson-Miller’s request for all
documents related to Equal Employment Opportunity (EEO) claims filed
against the VA by four current or former VA employees:
1.

Patricia Niemann, alleging age and disability discrimination in
December, 2009, followed by a claim of retaliation in 2011.

2.

Cynthia Gibson, alleging age and gender discrimination in the form
of harassment and hostile work environment in April, 2014.

3.

Michael Broadwell alleging in September, 2013, that Dr. Lythgoe
discriminated against him on the basis of his disability.

4.

Dr. Janell Simpkins, alleging in April, 2011, that Dr. Waters
harassed her and created a hostile work environment.

The VA resists providing this discovery. See Docket No. 42.

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DISCUSSION
A.

Meet and Confer Requirement
Rule 37(a)(1) requires the parties to meet and confer to attempt to resolve

discovery disputes prior to filing a motion to compel. See FED. R. CIV. P.
37(a)(1). In addition, this court’s local rules impose a similar requirement. See
DSD LR 37.1. The parties discussed the discovery dispute in this matter prior
to the instant motion being filed. See Docket No. 28. The VA does not dispute
that Ms. Watson-Miller has satisfied the meet-and-confer requirement. The
court finds this prerequisite satisfied.
B.

Scope of Discovery
Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of discovery

in civil cases pending in federal court:
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 the scope
of discovery need not be admissible in evidence to be discoverable.
See FED. R. CIV. P. 26(b)(1). Rule 26 contains specific limitations relative to
electronic discovery and other objections to providing discovery:
(B)

Specific Limitations on Electronically Stored Information. A
party need not provide discovery of electronically stored
information from sources that the party identifies as not
reasonably accessible because of undue burden or cost. On
motion to compel discovery or for a protective order, the
party from whom discovery is sought must show that the
information is not reasonably accessible because of undue
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burden or cost. If that showing is made, the court may
nonetheless order discovery from such sources if the
requesting party shows good cause, considering the
limitations of Rule 26(b)(2)(C). The court may specify the
conditions for the discovery.
(C)

When Required. On motion or on its own, the court must
limit the frequency or extent of discovery otherwise allowed
by these rules or by local rule 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).

See FED. R. CIV. P. 26(b)(2)(B) and (C).
A party claiming a privilege as to requested discovery has the burden of
proving the basis for the application of the privilege:
When a party withholds information otherwise discoverable by
claiming that the information is privileged or subject to protection
as trial-preparation material, the party must:
(i)

expressly make the claim; and

(ii)

describe the nature of the documents,
communications, or tangible things not produced or
disclosedBand do so in a manner that, without
revealing information itself privileged or protected, will
enable other parties to assess the claim.

See FED. R. CIV. P. 26(b)(5)(A).
If a party fails to respond to a proper request for discovery, or if an
evasive or incomplete response is made, the party requesting the discovery is
entitled to move for a motion compelling disclosure after having made a good
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faith effort to resolve the dispute by conferring first with the other party. See
FED. R. CIV. P. 37(a).
The scope of discovery under Rule 26(b) is extremely broad. See 8 Charles
A. Wright & Arthur R. Miller, Federal Practice & Procedure ' 2007, 36-37
(1970) (hereinafter "Wright & Miller"). The reason for the broad scope of
discovery is that "[m]utual knowledge of all the relevant facts gathered by both
parties is essential to proper litigation. To that end, either party may compel
the other to disgorge whatever facts he has in his possession." 8 Wright &
Miller, ' 2007, 39 (quoting Hickman v. Taylor, 329 U.S. 495, 507-08, 67 S. Ct.
385, 392, 91 L. Ed. 2d 451 (1947)). The Federal Rules distinguish between
discoverability and admissibility of evidence. FED. R. CIV. P. 26(b)(1), 32, and
33(a)(2) & (c). Therefore, the rules of evidence assume the task of keeping out
incompetent, unreliable, or prejudicial evidence at trial. These considerations
are not inherent barriers to discovery, however.
ARelevancy is to be broadly construed for discovery issues and is not
limited to the precise issues set out in the pleadings. Relevancy ...
encompass[es] >any matter that could bear on, or that reasonably could lead to
other matter that could bear on, any issue that is or may be in the case.= @
E.E.O.C. v. Woodmen of the World Life Ins. Society, 2007 WL 1217919 at *1
(D. Neb. March 15, 2007) (quoting Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351 (1978)). The party seeking discovery must make a Athreshold
showing of relevance before production of information, which does not
reasonably bear on the issues in the case, is required.@ Id. (citing Hofer v.
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Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1993)). AMere speculation that
information might be useful will not suffice; litigants seeking to compel
discovery must describe with a reasonable degree of specificity, the information
they hope to obtain and its importance to their case.@ Id. (citing Cervantes v.
Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972)).
Discoverable information itself need not be admissible at trial; rather, the
defining question is whether it is within the scope of discovery. See FED. R. CIV.
P. 26(b)(1). Additionally, the court may limit the frequency and extent of
discovery. See FED. R. CIV. P. 26(b)(2); see also Roberts v. Shawnee Mission
Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003) (AThe rule vests the district court
with discretion to limit discovery if it determines, inter alia, the burden or
expense of the proposed discovery outweighs its likely benefit.@); Continental
Illinois Nat=l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85 (D.
Kan. 1991) (AAll discovery requests are a burden on the party who must
respond thereto. Unless the task of producing or answering is unusual, undue
or extraordinary, the general rule requires the entity answering or producing
the documents to bear that burden.@).
C.

The VA’s Specific Objections to the Discovery Sought
1.

Privacy

The VA resists the discovery of all four EEO claims on the grounds of
“privacy.” The VA asserts that the EEO files “contain private, confidential
information,” but never elaborates as to the nature of this sensitive
information. Is it simply social security numbers or date of birth that can be
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easily redacted? Or does it consist in detailed narrative descriptions of
potentially embarrassing harassment—i.e. the heart of the EEO claim? The VA
also asserts, without any support, that the four EEO claimants “likely had an
expectation of privacy when they brought their own EEO claims.” To the
contrary, the very act of filing a claim presupposes that others will read the
claim in order to evaluate it and respond to it. The court notes the VA does not
assert a claim of privilege as to the requested discovery pursuant to Rule 26.
The parties previously stipulated to the entry of a protective order in this
case and the district court entered the order pursuant to that stipulation. See
Docket Nos. 15 & 16. That protective order specifically covers, among other
things, “private information of third parties.” See Docket No. 16 at p.1. Such
information is designated “confidential” and may not be used for any purpose
except this lawsuit. Id. at p. 2. The persons who may see the information is
restricted to the parties, attorneys for the parties, support staff, expert
witnesses, and the court and its staff. Id. at p.3. Further reproduction of or
dissemination of such information is prohibited. Id. All persons to whom
confidential information is disclosed are bound by the terms of the protective
order. Id. At the end of the litigation, all confidential information is to be
returned to the party who produced it along with any copies and derivative
information. Id. at p. 4. Alternatively, the information may be destroyed. Id.
The VA does not acknowledge the existence of this protective order in its
brief in opposition to Ms. Watson-Miller’s motion to compel. Therefore, the VA
never explains why the protective order is insufficient to protect the privacy
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interests of the four VA employees whose EEO files are sought. The court
rejects “privacy” as the basis for denying plaintiff’s motion to compel. However,
the VA may, if a file is otherwise ordered to be produced, redact from the file
social security numbers, dates of birth, home addresses and telephone
numbers.
2.

Relevancy

The VA also resists Ms. Watson-Miller’s request for the four EEO files on
grounds of relevancy. The VA argues that the four other employees who filed
EEO claims must be “similarly situated” to Ms. Watson-Miller before she may
obtain discovery of the files. By “similarly situated,” the VA argues the other
employees “must have dealt with the same supervisor, have been subject to the
same standards, and engaged in the same conduct without any mitigating or
distinguishing circumstances.” See Docket No. 42 at p. 5. Because three of
the four employees do not meet this asserted test for “similarly situated,” the
VA urges the court to deny Ms. Watson-Miller’s motion to compel on the basis
of relevancy. In support of its position, the VA cites Rodgers v. U.S. Bank,
N.A., 417 F.3d 845, 851-52 (8th Cir. 2005), which in turn quoted from Clark v.
Runyon, 218 F.3d 915, 918 (8th Cir. 2000).1
Neither Rodgers nor Clark decided the appropriate scope of “relevancy”
for discovery purposes under Rule 26. Rather, each decision was dealing with
the merits of the respective plaintiffs’ claims in those cases. Specifically, under
the McDonnell Douglas tripartite test, a plaintiff must first prove a prima facie
The Rodgers opinion was abrogated on other grounds by Torgerson v. City of
Rochester, 643 F.3d 1031 (8th Cir. 2011).
1

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case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). If the plaintiff proves a prima facie case, the burden of production
only (not the burden of proof), shifts to the employer to articulate a legitimate
reason for the adverse employment action it took. Id. If the employer satisfies
this burden of production, the burden of proof shifts back to the plaintiff to
show that the employer’s stated reason for its actions is merely a pretext to
cover up what was really illegal discrimination. Id.
One of the ways a plaintiff can show “pretext” is by showing that plaintiff
was treated more severely than other similarly situated employees. Clark, 217
F.3d at 918. The standard quoted by the VA from both Clark and Rodgers was
a discussion of the pretext prong of the McDonnell Douglas test when
evaluating the merits of a plaintiff’s discrimination claim. Rodgers., 417 F.3d
at 853-54; Clark, 217 F.3d at 918. In order to show an employer’s stated
reason for its adverse employment decision was a lie offered in order to cover
up illegal discrimination, the plaintiff has a high burden indeed—she must
show the other “similarly situated” employee was nearly in the identical
situation as plaintiff.
Neither Rodgers nor Clark address the standard for discovery in a
discrimination lawsuit. Discoverable evidence need not be admissible itself if it
is reasonably calculated to lead to the discovery of admissible evidence.
Also Ms. Watson-Miller does not seek the four EEO files in this case to
show pretext—she does not expect to find that the four employees who filed
EEO claims were treated more favorably than she. Rather, the evidence
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Ms. Watson-Miller is seeking from these files is evidence that the
discrimination she alleges she faced in the VA workplace was common, that
other employees encountered the same discrimination, and that the VA’s
response to allegations of discrimination was inadequate not only in her case,
but in others. This is a far different evidentiary purpose than the “pretext”
issue discussed in Rodgers and Clark.
Discovery of other instances of potential discrimination is important in
proving a discrimination case. Rarely will an employer bluntly state or reveal a
discriminatory motivation for an employment decision. Instead, evidence of a
discriminatory animus must usually be adduced from circumstantial evidence.
Hence, the relevancy of other instances of discrimination involving other
employees may constitute such circumstantial evidence. However, such
discovery must be reasonable in scope both in terms of time frame of other
claims of discrimination and in terms of geographic scope.
Ms. Watson-Miller has met her burden of demonstrating the initial
relevancy of the four files she seeks. Each file involves a VA employee from the
Sioux Falls, South Dakota, VA facility. Patricia Nieman, like Ms. WatsonMiller, asserted a claim of age and disability discrimination in 2009, and a
claim of retaliation in 2011. Cynthia Gibson alleged harassment and hostile
work environment on the basis of age and gender in 2014. Michael Broadwell
asserted a claim of disability discrimination in 2013 against Kyle Lythgoe.
Dr. Janell Simpkins filed a harassment/hostile work environment claim
against Dr. Victor Waters in April, 2011. All the requested EEO claims files are
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reasonable in scope in terms of the time frame covered because Ms. WatsonMiller filed her EEO claims in 2012. The requested discovery involves EEO
claims emanating from the same VA facility. Furthermore, each claim bears
some overlap with Ms. Watson-Miller’s claims herein: each alleges age
discrimination, disability discrimination, or retaliation.
Only one claim, Mr. Broadwell’s claim, was asserted against the exact
same supervisor and decision-maker as Ms. Watson-Miller’s—Kyle Lythgoe.
The VA admits that Mr. Broadwell was similarly situated to Ms. Watson-Miller
under the demanding standard the VA posits controls discovery herein.
In Dr. Simpkins’ case, her supervisor was Dr. Waters. In the currently
pending summary judgment motion, both sides acknowledge that Dr. Waters
played a part in Ms. Watson-Miller’s claims by denying her request to attend
further training on the basis that she might soon retire (i.e. she is old) and,
therefore, the VA would not get good value out of investing in further training
for her. The court does not imply that it finds plaintiff’s allegations about
Dr. Waters true at this point, but the scope of plaintiff’s allegations are
pertinent to what discovery is relevant. Dr. Simpkins’ claim against
Dr. Waters, a common decision-maker in Ms. Watson-Miller’s case, is clearly
relevant.
The EEO files concerning Patricia Nieman and Cynthia Gibson are a
closer question. Ms. Nieman was a nurse and her supervisors were two women
who did not supervise Ms. Watson-Miller or work in her department.

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Nonetheless, plaintiff alleges a system-wide age discrimination and retaliation
animus. This closely parallels Ms. Watson-Miller’s allegations herein.
As to Ms. Gibson, the VA does not assert Ms. Gibson was in a totally
different department than Ms. Watson-Miller. Rather, the sole basis the VA
argues Ms. Gibson’s EEO file is irrelevant is that it was filed after Ms. WatsonMiller’s EEO claim. That one claim preceded or antedated another claim is not
reason alone to find it irrelevant if there was in fact discriminatory animus in
the workplace.
As stated above, at the discovery stage, it is not necessary for
Ms. Watson-Miller to limit her discovery to the standard applicable for proving
pretext. All she needs to establish is that the discovery sought is reasonably
calculated to lead to the discovery of admissible evidence. She has done that in
her motion to compel. The VA has not convinced the court otherwise.
3.

Withdrawn Claims

After filing a retaliation claim in 2011, Patricia Nieman subsequently
withdrew that claim. Similarly, after filing an EEO claim in September, 2013,
Mr. Broadwell later withdrew his claim. The VA argues that, because Neiman
and Broadwell withdrew their claims, their EEO files cannot be relevant.
The VA does not state why each employee withdrew their claim. The
court can imagine many circumstances apart from the merits which might
incline a claimant to withdraw his or her claim—a death of a close family
member or friend, a relocation to a distant home, financial woes, etc. The mere
fact that these claims were withdrawn does not, by itself, show the claims files
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are irrelevant. Once Ms. Watson-Miller carried her initial burden of showing
the relevance of the requested discovery, the burden was on the VA to show a
valid reason for denying the discovery. The VA has not carried that burden.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the motion to compel [Docket No. 28] filed by plaintiff
Rebecca Watson-Miller is granted in part and denied in part as discussed
above. Specifically, the VA shall provide the four EEO files requested to
plaintiff’s counsel on or before July 28, 2016. However, the VA may redact
information from those files as discussed in the body of this opinion. Both
parties shall treat the EEO files thus provided as confidential under the district
court’s protective order.

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NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. ' 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986)./
DATED this 12th day of July, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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