Vann v. Mattress Firm, Inc.
Filing
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ORDER GRANTING IN PART, DENYING IN PART 22 Opposed MOTION to Compel.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANGELLA VANN ,
Plaintiff,
v.
MATTRESS FIRM ,
Defendant.
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CIVIL ACTION H-12-3566
M EMORANDUM O PINION AND O RDER
Pending before the court is plaintiff’s motion to compel discovery. Dkt. 22. After
considering the motion, response, arguments of the parties, and applicable law, the court finds that
the motion should be GRANTED in part and DENIED in part.
I. BACKGROUND
Plaintiff brought claims against Mattress Firm for age, gender, and race discrimination and
for failure to pay overtime compensation. Mattress Firm operates 102 stores in the Houston area.
Keith Gullo became plaintiff’s District Manager around 2007 or 2008. As District Manager, Gullo
was responsible for 14 stores and approximately 30 managers. During plaintiff’s employment,
District Managers made store assignments and reassignments on a monthly basis. Plaintiff alleges
that, beginning with her transfer by Keith Gullo in April 2008, Mattress Firm discriminated against
her because of her age, race, and gender by transferring her to lower-performing stores, despite her
excellent sales record, and replacing her with lower-performing sales associates outside of her
protected class. Plaintiff was discharged from her manager position at Mattress Firm on December
16, 2011.
On April 4, 2013, plaintiff served defendant with the discovery requests at issue in this
motion. On May 24, 2013, defendant responded to the discovery requests. Mattress Firm
supplemented its responses on October 29, 2013. However, plaintiff brings this motion to compel
because she claims that Mattress Firm has not adequately responded to her requests for
interrogatories and production and has only lodged boilerplate objections. Mattress Firm maintains
that it has produced all relevant, non-privileged documents and supplemented its interrogatory
responses to include the name, age, race, and gender of all individuals who replaced plaintiff within
300 days before she filed her EEOC complaint and further provided information regarding plaintiff’s
store assignments and the reasons for her transfers.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 26(b)(1), parties “may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense. . . . Relevant information need
not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery
of admissible evidence.” FED . R. CIV . P. 26(b)(1); Merrill v. Waffle House, Inc., 227 F.R.D. 467,
470 (N.D. Tex. 2005) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380
(1978)). However, a court may limit discovery if “the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the action, and the importance of the discovery in
resolving the issues.” FED . R. CIV . P. 26(b)(2)(C)(iii).
The moving party bears the burden of showing that the materials and information sought are
relevant to the action or will lead to the discovery of admissible evidence. Export Worldwide, Ltd.
v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006); Smith v. DeTar Hosp., L.L.C., 2011 WL 6217497,
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*2 (S.D. Tex. 2011). Once the moving party establishes that the materials requested are within the
scope of permissible discovery, the burden shifts to the party resisting discovery to show why the
discovery is irrelevant, overly broad, or unduly burdensome or oppressive, and thus should not be
permitted. Spiegelberg Mfg., Inc. v. Hancock, 2007 WL 4258246, *1 (N.D. Tex. 2007); Gauthier
v. Union Pac. R.R. Co., 2008 WL 247016, *3 (E.D. Tex. 2008).
III. ANALYSIS
In order to determine what discovery is relevant to plaintiff’s claims, it is important to
understand what she is required to prove. Plaintiff alleges disparate treatment by Mattress Firm
based on her age, gender, and race. Discriminatory or disparate treatment occurs where “[t]he
employer simply treats some people less favorably than others because of their race, color, religion,
sex or national origin. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335–36 n. 15, 97 S.
Ct. 1843 (1977). To make out a prima facie case of discriminatory treatment based on age, race or
gender, plaintiff is required to prove: (1) she is within the protected class; (2) she was qualified for
the position; (3) she suffered an adverse employment decision; and (4) she was replaced with or
treated less favorably than a similarly situated person outside of her protected class. Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002); Smith v. City of Jackson, Miss., 351 F.3d 183,
196 (5th Cir. 2003). In a disparate treatment case, liability ultimately depends on whether the
protected trait—here, age, race, or gender—actually motivated the employer’s decision. Hazen
Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701 (1993).
Defendant largely resists discovery on the basis that plaintiff has asserted a disparate
treatment claim, as opposed to a disparate impact claim. Disparate impact claims arise from
“employment practices that are facially neutral in their treatment of different groups but that in fact
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fall more harshly on one group than another and cannot be justified by business necessity.” Int’l
Bhd. of Teamsters, 431 U.S. at 335–36 n.15; Smith, 351 F.3d at 186. However, alleging a disparate
treatment claim instead of a disparate impact claim does not thereby make an employer’s general
practices or treatment of other employees irrelevant. See Plemer v. Parsons-Gilbane, 713 F.2d 1127,
1135 (5th Cir. 1983) (“The plaintiff may introduce in an individual disparate treatment case statistics
evidencing an employer’s pattern and practice of discriminatory conduct, which ‘may be helpful to
a determination of whether’ the alleged discriminatory act against plaintiff ‘conformed to a general
pattern of discrimination against’ members of a protected group.”) (citation omitted). While proof
of discriminatory intent is not necessary in a disparate impact claim, it is critical to the success of
a plaintiff’s discriminatory treatment claim. Biggins, 507 U.S. at 610. Plaintiff’s need to prove
discriminatory intent, thus, largely justifies many of her discovery requests, as discussed below.
With these threshold considerations in mind, the court will now address plaintiff’s motion
to compel and the specific interrogatory and production responses with which plaintiff takes issue.
1.
Interrogatory No. 2 asks defendant to identify persons by name, age, race, and gender
who were transferred from one store to another, within Houston and the surrounding area, during the
last five years of plaintiff’s employment. Additionally, the interrogatory seeks the date of transfer,
reason for transfer, whose decision it was to transfer the employee, and the transferred employee’s
monthly sales. Plaintiff asserts that this information is relevant in order to show that she was treated
less favorably than those outside of her protected class. Mattress Firm maintains that the request is
overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of
admissible evidence.
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Mattress Firm operates 102 stores in the Houston area. Plaintiff has agreed to limit this
request to include only transfers occurring within the districts managed by District Managers, Keith
Gullo, Tera Starr, and Chris Brown, plaintiff’s former supervisors. This agreement reduces the
number of transfer requests by roughly one-fourth, as these three District Managers oversaw three
of the four districts comprising the Houston area.
Mattress Firm further argues that the scope of this request is overly broad because it
encompasses transfers that occurred more than 300 days before plaintiff filed her EEOC complaint,
making them time-barred. While plaintiff may not be able to recover for any discriminatory acts that
took place outside of the time limitations under Title VII or the ADEA, this is not a valid reason to
deny plaintiff discovery on actions taken by Mattress Firm prior to this time. Numerous courts have
held that information outside of the statute of limitations is relevant as background information to
establish discrimination. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885 (1977)
(holding that untimely charges may still constitute relevant background evidence in proceeding in
which current practice is at issue); Rutherford v. Harris County, Tex., 197 F.3d 173, 186 (5th Cir.
1999) (“Evidence concerning a claim that is not on trial because it exceeds the scope of the
plaintiff’s EEOC charge does not automatically lose its relevance or probative value to a claim that
remains.”); Cortes v. Maxus Exploration Co., 977 F.2d 195, 199–200 (5th Cir. 1992) (same).
Further, as discussed above, the general pattern and practice of an employer can be used to show
discrimination in a disparate treatment case. Therefore, the court will not limit the discovery request
on these two bases.
However, in order to be relevant to plaintiff’s claims, she must show that the request involves
individuals who are similarly situated to her. See Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245
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F.3d 507, 514 (5th Cir. 2001) (An employee is considered “similarly situated” if he or she worked
under “nearly identical” circumstances.”); Conboy v. Edward D. Jones & Co., L.P., 140 Fed. Appx.
510, 516 (5th Cir. 2005) (affirming district court’s refusal to compel defendant’s disclosure of all
ADEA claims against employer when plaintiff’s claim was limited to a refusal to hire claim); Gillum
v. ICF Emergency Mgmt. Services, L.L.C., 2009 WL 2136269 (M.D. La. 2009) (discussing and
collecting cases wherein district courts limited discovery to those employees who were similarly
situated to plaintiff). Plaintiff has not confined her requests to those who are or could be potentially
similarly situated to her. Plaintiff was a manager and assistant manager during her employment with
Mattress Firm. For any significant similarity to exist between plaintiff and other employees, the
request should be limited to management personnel. Therefore, the court will only grant in part
plaintiff’s motion relating to this request. Mattress Firm is ordered to respond to Interrogatory No.
2 and provide information limited to transfers by Keith Gullo, Tera Starr, and Chris Brown of
management personnel (managers and assistant managers) from January 1, 20071 to December 16,
2011.2
2.
Interrogatory No. 3 requests information about plaintiff’s replacements when she was
transferred, demoted, or terminated. It is unnecessary for the court to consider this request because
Mattress Firm had agreed to respond to this interrogatory. Therefore, plaintiff’s motion as to this
request is denied as moot.
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This date represents the time period in which Keith Gullo became plaintiff’s District Manager.
According to plaintiff, Gullo was the first Mattress Firm manager to discriminate against her.
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This date represents the date of plaintiff’s termination from Mattress Firm.
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3.
Interrogatory No. 7 asks defendant to state the monthly sales for each store within the
Houston area from January 1, 2008 through December 31, 2012. Defendant objects that this request
is overly broad, seeks proprietary information, and is not reasonably calculated to lead to the
discovery of admissible evidence. Defendant further objects that this request seeks information prior
to any of plaintiff’s timely claims.
As the court noted above, information outside of the live claim time period is relevant as
background information to establish discriminatory intent. This information is relevant to the extent
it shows plaintiff was transferred to lower-performing stores and may lead to discoverable evidence
regarding whether defendant had a practice of transferring similarly situated employees to lowerperforming stores, which could be some evidence of discriminatory intent. The court does find,
however, that the request is overly broad and will sustain, in part, defendant’s objection. Defendant
is required to respond to the interrogatory, limited only to monthly sales data for stores to which
plaintiff was transferred or stores to which other managers or assistant managers referenced in
Interrogatory No. 2 were transferred from January 1, 2007 to December 16, 2011. If defendant has
any concerns regarding proprietary information, these concerns can be alleviated through an
appropriate protective order.
4.
Request for Production No. 39 seeks complete copies of personnel files of employees
identified in response to interrogatories numbers 1 through 4 (i.e. transferred employees at all stores
between 2006 to 2011, every employee replacing plaintiff, all of plaintiff’s former supervisors, and
all employees involved in the decision to demote or terminate plaintiff). Mattress Firm contends this
encompasses several hundred employee personnel files, invades the personal privacy of individuals
not a party to this lawsuit, is overly broad, and is not reasonably calculated to lead to the discovery
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of admissible evidence. Plaintiff asserts that documents reflecting any reprimands, policy violations,
warnings, and disciplinary actions taken against others are relevant in order for her to show that she
was treated less favorably than others outside of her protected class.
The court agrees that the scope of the request is overbroad and is not limited to those
employees who were similarly situated to plaintiff. The court further recognizes the privacy
concerns regarding disclosure of personnel files given the sensitive nature of the personal
information potentially contained within such files. However, personnel records are “often a vital
part of a plaintiff’s Title VII lawsuit and may be legitimate subjects of discovery.” Abrego v. Waste
Mgmt. of Tex., Inc., 2012 WL 2402890, *1 (N.D. Tex. 2012) (“Courts consistently allow discovery
of personnel files in light of the importance of establishing pretext in discrimination cases.”
(citations omitted)); McDonald v. Exxonmobil Chem. Co., 2001 WL 34109381, *1 (S.D. Tex. 2001).
In order to balance these competing interests, the court orders Mattress Firm to produce documents
within the personnel files reflecting reprimands, policy violations, warnings, and disciplinary actions
of transferred managers or assistant managers referenced in Interrogatory No. 2 from January 1, 2007
to December 16, 2011, as well as any reprimands, policy violations, warnings, and disciplinary
actions of any employees replacing plaintiff. The court does not find that the personnel files of
district managers and those employees involved in the decisions to terminate, demote, or transfer
plaintiff will assist plaintiff in her effort to show that she was treated less favorably than similarly
situated employees outside of her protected class.
Additionally, Mattress Firm’s concerns about protecting employee privacy can be dealt with
through a protective order limiting the use and disclosure of this information. Riley v. Walgreen Co.,
233 F.R.D. 496, 501 (S.D. Tex. 2005); McDonald, 2001 WL 34109381, at *1. The court will not
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require Mattress Firm to disclose such information from personnel files until a protective order is
in place.
5.
Request for Production No. 29 requests all documents reflecting or relating to
complaints and/or claims of discrimination, and/or Defendant’s investigations in the last five years
of any claim of discrimination. Mattress Firm objects that this request is overly broad as it seeks
information relating to complaints of discrimination for the entire company. Further, Mattress Firm
claims that the request seeks privileged information and personal information of individuals who are
not parties to this suit. Consistent with the ruling in Conboy, the court finds that the scope of the
request is overbroad and should be limited to only claims that would be relevant to plaintiff’s claim.
Conboy, 140 Fed. Appx. at 516-17. In Conboy, the Fifth Circuit affirmed the district court’s ruling
limiting the scope of plaintiff’s discovery request for all ADEA claims ever brought against the
corporation to only those ADEA claims alleging a refusal to hire claim. Id. at 516. Likewise, the
court here will limit the request and order Mattress Firm to produce only those claims or complaints
of discrimination and non-privileged investigations resulting therefrom to claims similar to those
of plaintiff. Mattress Firm is ordered to produce claims or complaints of discrimination and
investigations resulting therefrom, limited to complaints of age, gender, and/or age discrimination
from managers or assistant managers employed in Houston area stores for the last five years.
6.
Request for Production No. 19 requests documents concerning investigations of any
complaints about plaintiff, if relevant to plaintiff’s factual allegation or claims in this lawsuit and
not otherwise privileged. It is unclear if defendant responded to this request, and it maintains that
the request is vague and ambiguous. The court does not find that the request is vague or ambiguous.
The plaintiff requests any documents concerning investigations of any complaints about plaintiff
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relevant to this lawsuit. Plaintiff’s full employment history with Mattress Firm is at issue in this
lawsuit and relevant to the proof requirements of plaintiff. Therefore, Mattress Firm is ordered to
produce, to the extent it has not already done so, any non-privileged documents regarding any
investigations of any complaints made about plaintiff during her employment at Mattress Firm.
7.
Request for Production No. 22 seeks “any and all written statements or declarations
(signed or unsigned), made by any person, which mention, discuss or refer to plaintiff or the issues
made the basis of this lawsuit.” As written, the court agrees that the request is overly broad and fails
to limit the request in time, scope, or subject matter. Mattress Firm’s objection to this request is
sustained.
8.
Request for Production No. 42 requests documents related to defendant’s net worth.
The motion on this request is denied as moot because defendant agrees to provide such information
prior to trial.
9.
Requests for Production Nos. 1-12, 15-16, 18, 20, 23-24, 26-27, 35-36, and 41 -
Plaintiff asserts that it is unclear if Mattress Firm fully responded to these requests in light
of its objections. Mattress Firm has represented that “no documents were being cloaked behind any
of its objections, but each was made in good faith and intended to preserve proper objections to
overly broad, vague and ambiguous requests.” Dkt. 25, p. 17. Plaintiff has not demonstrated that
Mattress Firm’s responses or production in response to these requests for production are deficient
or that there is anything to compel in this regard. Mattress Firm is entitled to preserve its objections
and respond that, subject to its objections, it has produced all responsive documents. Until plaintiff
identifies some basis for the court to find that all documents have not been produced relative to these
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requests, the court will not speculate that all documents have not been produced based on Mattress
Firm lodging valid objections. The motion to compel related to these requests in denied.
Finally, to the extent that Mattress Firm has withheld documents on the bases of attorney
client and/or work product privilege, it must produce a privilege log pursuant to the Federal Rules
of Civil Procedure within 14 days from the date of this order reflecting documents withheld based
on privilege up to the date this lawsuit was filed.
IV. CONCLUSION
For the reasons set out herein, the court finds that plaintiff’s motion to compel (Dkt. 22)
should be GRANTED in part and DENIED in part. The court’s rulings are summarized as follows:
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Mattress Firm is required to respond, in part (as discussed supra), to
plaintiff’s Interrogatory Nos. 2, 7 (subject to a protective order) and
plaintiff’s Requests for Production Nos. 29, 39 (subject to a protective order).
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Mattress Firm is ordered to respond in full to plaintiff’s Request for
Production No. 19.
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The court denies plaintiff’s motion to compel as it relates to Interrogatory
Nos. 3 and 42 as moot.
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Plaintiff’s motion to compel is denied as to plaintiff’s Requests for
Production Nos. 1-12, 15-16, 18, 20, 22-24, 26-27, 35-36, and 41.
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Mattress Firm is ordered to produce a privilege log for any documents
withheld on the basis of privilege within 14 days of this Order.
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Mattress Firm is ordered to produce the documents discussed herein on or
before April 28, 2014.
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Finally, plaintiff is ordered to respond to Mattress Firm’s motion for
summary judgment on or before May 12, 2014.
It is so ORDERED.
Signed at Houston, Texas on April 7, 2014.
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Gray H. Miller
United States District Judge
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