Waddell v. Greyhound Lines, Inc.

Filing 60

ORDER re 48 Denied without prejudice Second MOTION to Compel filed by Ernest Waddell, 35 Denied MOTION to Compel filed by Ernest Waddell, 38 Granted in Part and Denied in Part MOTION to Compel filed by Greyhound Lines, Inc. Signed by Magistrate Judge Tu M. Pham on 11/18/08. (Pham, Tu)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION _________________________________________________________________ ERNEST WADDELL, Plaintiff, vs. GREYHOUND LINES, INC., Defendant. ) ) ) ) ) ) ) ) ) )

Civil No.

08-2014-Ma/P

_________________________________________________________________ ORDER ON PLAINTIFF'S MOTION TO COMPEL, DEFENDANT'S MOTION TO COMPEL, AND PLAINTIFF'S SECOND MOTION TO COMPEL _________________________________________________________________ Before the court by order of reference is plaintiff Ernest Waddell's Motion to Compel (D.E. 35), defendant Greyhound Lines, Inc.'s ("Greyhound") Motion to Compel (D.E. 38), and Waddell's Second Motion to Compel (D.E. 48). held a hearing on these motions. present and heard. On October 23, 2008, the court Counsel for all parties were

At the conclusion of the hearing, the court

took under advisement Waddell's Motion to Compel, granted in part and denied in part Greyhound's Motion to Compel, and denied without prejudice Waddell's Second Motion to Compel. A. Waddell's Motion to Compel In his first Motion to Compel, Waddell asks the court to order Greyhound to provide a complete response to Interrogatory Number 3, which asks Greyhound to identify "each employee the persons

identified in Interrogatory Number 1 have counseled or disciplined in any way since 1/1/05." Interrogatory Number 1, in turn, asks

Greyhound to identify each person who participated in the decision

to terminate the Plaintiff.1

Greyhound has provided Waddell with

information relating to the employees who have been counseled or disciplined since January 1, 2005, by the same decision-makers involved in Waddell's termination, who worked in District 7 (the same district as Waddell) and who were counseled or disciplined for (1) insubordination, (2) refusal to drive a bus, (3) refusal of a direct order, (4) refusal of an order to report to work, or (5) refusal to accept a route.
2

However, Greyhound has objected to

providing any information for employees who worked outside of District 7 or any information for District 7 employees who were counseled or disciplined for reasons other than the five listed above. Federal Rule of Civil Procedure 26(b)(1) allows for the discovery of "any matter, not privileged, that is relevant to the claim or defense of any party." Relevancy for discovery Fed. R. Civ. P. 26(b)(1). is construed broadly.

purposes

Waddell worked for Greyhound as an "extra-board" (or part-time) driver. On May 18, 2006, Greyhound terminated Waddell allegedly for refusing a direct order because he refused to drive an empty bus from Texarkana, Arkansas to Dallas, Texas. Waddell sued Greyhound for violations of Title VII, the ADEA, and 42 U.S.C. § 1981. As part of his complaint, Waddell alleges that Greyhound terminated him in retaliation for filing an age discrimination lawsuit against Greyhound in August of 2003. That lawsuit was dismissed in favor of Greyhound in March of 2005. District 7 covers Greyhound owned or operated bus terminals in Birmingham and Mobile, Alabama, New Orleans and Baton Rouge, Louisiana, Jackson, Mississippi, and Knoxville, Memphis and Nashville, Tennessee. Waddell reported directly to the Memphis City Manager, who in turn reported to the District 7 Manager. During 2006, Greyhound employed 278 drivers within District 7. -22

1

Discoverable evidence need not be admissible at trial; rather, material is discoverable if it is "reasonably calculated to lead to the discovery of admissible evidence." Id. "Nevertheless,

discovery does have `ultimate and necessary boundaries,'" Miller v. Fed. Express Corp., 186 F.R.D. 376, 383 (W.D. Tenn. 1999) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)), "and `it is well established that the scope of discovery is within the sound discretion of the trial court.'" Id. (quoting Coleman v. Am. Red Cross, 23 F.3d 1091, 1096 (6th Cir. 1994)). compel discovery if "the its burden likely or expense A court need not of Fed. the R. proposed Civ. P.

discovery

outweighs

benefit."

26(b)(2)(iii). Once an objection to the relevance of the information sought is raised, the party seeking discovery must demonstrate that the requests are relevant to the claims or defenses in the pending action. Allen v. Howmedica Leibinger, 190 F.R.D. 518, 522 (W.D. If that party demonstrates relevancy, the party

Tenn. 1999).

resisting discovery bears the burden of demonstrating why the request is unduly burdensome or otherwise not discoverable under the Federal Rules. United Oil Co. V. Parts Assocs., Inc., 227

F.R.D. 404, 411 (D. Md. 2005); MJS Janitorial v. Kimco Corp., No. 03-2102, 2004 WL 2905409, at *6 (W.D. Tenn. Apr. 19, 2004); see also Fed. R. Civ. P. 26(b)(2)(i), (iii). The court finds that discovery relating to employees who -3-

worked outside of District 7 is not reasonably calculated to lead to the discovery of admissible evidence, as Waddell has not

sufficiently demonstrated that employees who worked outside of District 7 would be similarly situated to Waddell in " all of the relevant aspects." Miller v. Federal Express, 186 F.R.D. 376, 383

(W.D. Tenn. 1999) (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 351 (6th Cir. 1998)). explained, . . . information concerning the treatment of comparable employees is doubtlessly relevant to a plaintiff's claim that she received harsher discipline on account of her race. . . . In the context of an allegation of disciplinary discrimination, the comparables to be similarly situated "must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it. . . . This is not to say, however, that another employee's situation must be identical to serve as a comparable. Id. at 383-84 (internal citation omitted); see also Myers v. Case Corp., No. C 98-2733 THE, 2000 WL 274197, at *6 (N.D. Cal. Mar. 7, 2000); Sanders v. Culinary Workers Union Local No. 226, 804 F. Supp. 86, 98 (D. Nev. 1992). However, "[t]he plaintiff need not As the court in Miller

demonstrate an exact correlation with the employee receiving the more favorable treatment in order for the two to be considered `similarly-situated.'" Ercegovich, 154 F.3d at 352; see also Seay

v. Tenn. Valley Auth., 339 F.3d 454, 479 (6th Cir. 2003). Moreover, the court finds Waddell's request for information

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relating to Greyhound employees who were counseled or disciplined for any reason of to be overly broad and would result by in the

production

irrelevant

information.

Instead,

producing

information relating to District 7 employees who were counseled or disciplined for (1) insubordination, (2) refusal to drive a bus, (3) refusal of a direct order, (4) refusal of an order to report to work, or (5) refusal to accept a route, Greyhound has provided Waddell with the relevant discovery he is entitled to obtain under Rule 26. For these reasons, Waddell's Motion to Compel is DENIED. B. Greyhound's Motion to Compel As discussed above, at the conclusion of the October 23 hearing, the court granted in part and denied in part Greyhound's Motion to Compel as follows: With respect to Interrogatory Number 2, which asks Waddell to identify each person with whom he has communicated, either orally or in writing, regarding his belief that Greyhound retaliated against him and state the date of the communication, the substance of the communication, and identify any documents regarding such communication, the court found that Waddell's response was

incomplete and ordered him to supplement his response to this interrogatory by providing additional information, if known, within eleven (11) days. With respect to Interrogatory Number 7, which asks for a complete history of employment, the court found that Waddell's response was sufficient and denied the request to compel a further -5-

response to this interrogatory. With respect to Interrogatory Numbers 8, 9, and 10, which ask for information relating to Waddell's damages, the court found that Waddell's responses were incomplete and ordered him to supplement his responses to these interrogatories by providing additional information, if known, within eleven (11) days. As for Waddell's responses to Greyhound's Requests for

Production of Documents Numbers 1, 2, 3, 8, 11, 12, and 13, the court ordered that Greyhound review documents responsive to these requests at the law offices of Waddell's counsel. After reviewing

these documents, Greyhound may renew its motion to compel if it believes the document production is still incomplete. With respect to Request for Production Number 19, which asks for any agreements between Waddell and his attorneys evidencing his obligation to pay attorney's fees, the court denied without

prejudice the motion to compel production of these documents, as the motion is premature. Finally, the court denied Greyhound's

motion for sanctions and attorney's fees. C. Waddell's Second Motion to Compel In his Second Motion to Compel, Waddell asks the court to order Greyhound's deponent, Jim Smith (Senior Director of Labor Relations), to respond to questions that may reveal attorney-client privileged communications, on the grounds that Greyhound may assert an advice-of-counsel defense at trial. At the October 23 hearing,

Greyhound agreed that it would notify Waddell by the date of his deposition, whether Greyhound would be asserting an advice-of-6-

counsel defense.

The court denied without prejudice Waddell's Waddell may renew this motion at a later

Second Motion to Compel. date, if necessary. IT IS SO ORDERED.

s/ Tu M. Pham TU M. PHAM United States Magistrate Judge November 18, 2008 Date

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