Pierson v. Quad/Graphics Printing Corp. et al

Filing 42

MEMORANDUM AND ORDER: For the reasons stated herein, the plaintiff's Objections 29 are OVERRULED in part and SUSTAINED in part. In particular, the plaintiff's first objection is OVERRULED, while his second and third objections are SUSTAINED. The defendant shall admit or deny the plaintiff's Fourth Request for Admission within ten (10) days of the date of this order. It is so Ordered. Signed by District Judge Aleta A. Trauger on 8/10/12. (tmw)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES C. PIERSON,
Plaintiff,
v.
QG, LLC,
Defendant.

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Case No. 3:11-cv-1126
Judge Trauger
Magistrate Judge Brown

MEMORANDUM AND ORDER
Pending before the court are the plaintiff’s Objections (Docket No. 29) to the Order issued
by the Magistrate Judge on May 23, 2012 (Docket No. 28), which sustained the defendant’s
objection to the plaintiff’s Request for Admission No. 4. The defendant has filed a response in
opposition to the plaintiff’s objections (Docket No. 30.)
BACKGROUND
This age discrimination and retaliation suit arises out of the termination of the plaintiff,
James C. Pierson, by his employer, defendant, QG, LLC (“QG”). QG employed the plaintiff as
an Engineering Manager/Plant Facilities Manager at its plant in Dickson, Tennessee from March
6, 2005 until August 23, 2011. (Docket No. 33, at 2.) The plaintiff, who was 62 years old at the
time the Amended Complaint was filed, alleges that QG discharged him without notice and
replaced him with a 47-year-old individual who lacked his qualifications. (Id.) The plaintiff also
alleges that QG: (1) treated him differently from similarly situated younger employees in the
terms, conditions, and privileges of employment; and (2) retaliated against him for expressing his
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concern to management that he was terminated on account of his age. (Id. at 2-3, 5.) He has
asserted claims under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§ 621 et seq., and the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101 et
seq. (2011). (Id. at 1.)
The discovery dispute presently before the court stems from QG’s responses to certain
Requests for Admission propounded by the plaintiff. Those requests largely focus on two
telephone conversations between the plaintiff’s counsel and Dana Gruen, an in-house counsel for
QG, that transpired on November 8, 2011, almost three weeks prior to the commencement of the
instant action. QG has admitted that Ms. Gruen contacted the plaintiff’s counsel on November
8th in response to his prior letter inquiry concerning whether the company wished to discuss the
possibility of reinstating the plaintiff or offering him severance pay. (Docket No. 25, Ex. 1, ¶ 2.)
A second telephone conversation between Ms. Gruen and the plaintiff’s counsel occurred on the
same day. (Docket No. 25, Ex. 4, at 1.)
At issue here is the fourth Request for Admission, which sought an admission from QG
concerning the contents of the second telephone conversation between Ms. Gruen and the
plaintiff’s counsel. Specifically, it requested that QG:
Admit that, in response to Plaintiff’s counsel’s November 8, 2011, inquiry about
the reasons for Plaintiff’s discharge, Ms. Gruen communicated to him that
Defendant discharged Plaintiff in part because his replacement or successor was
involved in “energy procurement[;”] because Plaintiff was “not well-liked” and
was “not a team player;” and because Plaintiff’s performance was poor in that he
failed or refused to perform certain aspects of his job.
(Docket No. 25, Ex. 1 ¶ 4.) QG objected to this particular Request for Admission, asserting that it
was unlikely to lead to the discovery of admissible evidence, since the conversations between Ms.
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Gruen and the plaintiff’s counsel were settlement discussions that are inadmissible under Federal
Rule of Evidence 408. (Id.) QG also averred that the plaintiff was discharged from his
employment as a result of a reduction-in-force. (Id.)
After the parties’ efforts to resolve the dispute over the fourth Request for Admission
proved unsuccessful, this court referred the matter to Magistrate Judge Brown for disposition on
April 24, 2012. (Docket No. 23.) In an order issued on May 2, 2012, the Magistrate Judge
ordered the parties to brief whether the alleged conversations between Ms. Gruen and the
plaintiff’s counsel during the second November 8th telephone conversation were the proper
subject of discovery. (Docket No. 25, at 2.)
On May 23, 2012, the Magistrate Judge issued an order sustaining QG’s objection to the
plaintiff’s fourth Request for Admission. (Docket No. 28.) He noted the plaintiff’s reason for
this request; namely, that such information supported his theory that QG’s proffered reasons for
discharging him were pretextual. (Id. at 1.) He also noted QG’s position that this conversation
occurred in the course of settlement or compromise negotiations and that any statements made
during that conversation are thus inadmissible under Federal Rule of Evidence 408. (Id.) The
Magistrate Judge provided the following explanation for his decision:
Given the policy reasons surrounding settlement and compromise negotiations,
it is clear that requiring a party to admit statements made during such negotiations
would have a chilling effect. The Magistrate Judge agrees with Plaintiff that the
inadmissibility of evidence at trial does not necessarily bar it from discovery. See
Fed. R. Civ. P. 26(b)(1). See also Mfg. Sys., Inc. of Milwaukee v. Computer
Techn., Inc., 99 F.R.D. 335, 336 (D. Wis. 1983). In this case, however, the
Magistrate Judge believes the information is neither relevant nor reasonably
calculated to lead to admissible evidence.
Plaintiff already has knowledge of these alleged pretextual reasons offered for his
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discharge and can depose those individuals involved. The admission requested would
not lead to admissible evidence, because Ms. Gruen, as in-house counsel, almost
certainly could not disclose the source of the information obtained while advising the
corporation regarding Plaintiff’s discharge. To the extent that the alleged pretextual
reasons are relevant or would lead to admissible evidence, a far simpler method would
be to depose a witness representing the corporation pursuant to Fed. R. Civ. P.
30(b)(6). This method would avoid the settlement discussion issues entirely.
Therefore, the Magistrate Judge will not order Defendant to admit or deny Request
for Admission No. 4
(Id. at 1-2.) On June 6, 2012, the plaintiff filed his objections to the May 23, 2012 order. (Docket
No. 29.)
ANALYSIS
Federal Rule of Civil Procedure 72 provides that, when a magistrate judge has decided a
nondispositive pretrial matter, a party may file objections to the order. Fed. R. Civ. P. 72(a).
Upon receiving such objections, the district court “must . . . modify or set aside any part of the
order that is clearly erroneous or is contrary to law.” Id.; see also 29 U.S.C. § 636(b)(1)(A).
The plaintiff makes three specific objections to the Magistrate Judge’s May 23, 2012
Order. First, he contends that the Magistrate Judge erred in finding that QG’s position in
objecting to the fourth Request for Admission was that the second telephone conversation
between Ms. Gruen and the plaintiff’s counsel involved settlement or compromise negotiations.
(Docket No. 29, at 2-3.) The plaintiff next objects to the implication raised in the Magistrate
Judge’s May 23, 2012 Order that this telephone conversation actually contained statements made
in the course of settlement negotiations. (Id. at 3-4.) Finally, the plaintiff objects to the
Magistrate Judge’s determination that the information sought by the plaintiff in his fourth Request
for Admission is neither relevant nor reasonably calculated to lead to the discovery of admissible

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evidence. (Id. at 4- 11.)
The plaintiff’s first objection is without merit. As QG points out in its opposition brief, it
objected to the plaintiff’s fourth Request for Admission, in part, because it sought information
exchanged in the course of compromise offers and negotiations, which is inadmissible under
Federal Rule of Evidence 408. (Docket No. 30, at 4.) Moreover, in its brief responding to the
Magistrate Judge’s May 2, 2012 Order, QG plainly took the position that the second conversation
between Ms. Gruen and the plaintiff’s counsel, in which the purported reasons for the plaintiff’s
termination were discussed, were part of settlement negotiations. (See Docket No. 26, at 2-3.)
Accordingly, this objection will be overruled.
As to the second objection, it is not entirely clear to the court whether the Magistrate
Judge explicitly concluded that the communications made during the second telephone
conversation between Ms. Gruen and the plaintiff’s counsel involved settlement and compromise
negotiations. Nonetheless, to the extent that the May 23, 2012 Order can be read in such a
manner, as the plaintiff argues here, the court believes that the limited evidentiary record at this
early stage of the proceedings cannot support such a conclusion. The May 23, 2012 Order was
based on representations made by the parties’ counsel in a discovery dispute telephone conference
with the Magistrate Judge and their briefs. Indeed, the Magistrate Judge was not presented with
any affidavits or deposition testimony concerning the details of the second telephone conversation
from which he could reliably conclude that any statements made during that conversation
constituted settlement or compromise negotiations, which would very likely be inadmissible
under Federal Rule of Evidence 408. To the extent that he actually reached that conclusion, it

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was clearly erroneous, given the limited record in this case. The plaintiff’s second objection will
therefore be sustained.
Finally, the plaintiff objects to the Magistrate Judge’s conclusion that the information
sought in the fourth Request for Admission is neither relevant nor reasonably calculated to lead to
the discovery of admissible evidence. Specifically, he contends that this conclusion must be set
aside because it is contrary to law. (Docket No. 29, at 11.) Federal Rule of Civil Procedure
26(b)(1) provides that a party may obtain discovery regarding any nonprivileged matter that is
relevant to that party’s claim or defense. Fed. R. Civ. P. 26(b)(1).
The alleged statements made by Ms. Gruen to the plaintiff’s counsel during the second
November 8th telephone conversation concerning the reasons underlying QG’s decision to
terminate the plaintiff are plainly relevant to the plaintiff’s age discrimination claim, as they
constitute evidence of pretext. Because the alleged statements are clearly relevant, they are
discoverable pursuant to Rule 26(b)(1). Accordingly, the plaintiff’s third objection will also be
sustained.
CONCLUSION
For the reasons stated herein, the plaintiff’s Objections (Docket No. 29) are
OVERRULED in part and SUSTAINED in part. In particular, the plaintiff’s first objection is
OVERRULED, while his second and third objections are SUSTAINED. The defendant shall
admit or deny the plaintiff’s Fourth Request for Admission within ten (10) days of the date of this
order.
It is so Ordered.

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Enter this 10th day of August 2012.

ALETA A. TRAUGER
United States District Judge

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