Madere v. Compass Bank

Filing 82

ORDER GRANTING IN PART AND DENYING IN PART 72 Motion to Compel. Signed by Judge Andrew W. Austin. (kkc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
KIM MADERE
V.
COMPASS BANK

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A-10-CV-812 AWA

ORDER
Before the Court are Plaintiff’s Opposed Motion to Compel Compliance with Discovery
Order (Clerk’s Doc. No. 72); Defendant Compass Bank’s Response (Clerk’s Doc. No. 73);
Plaintiff’s Reply (Clerk’s Doc. No. 76); and Defendant’s Sur-Reply (Clerk’s Doc. No. 81). On April
2, 2012, the court held a hearing on the Plaintiff’s motion.
I.

Background
Plaintiff Kim Madere filed suit against Compass Bank after Compass Bank fired her. She

claims that Compass Bank fired her because she took leave under the Family and Medical Leave Act
(FMLA), and, unlike other employees who were laid off, Compass Bank did not rehire her because
she took FMLA leave. The case was tried to a jury and Compass Bank prevailed, with the jury
finding that Compass Bank did not fire Madere or fail to rehire her because she took FMLA leave.
During trial, one of Madere’s strategies was to attack Compass Bank’s justification for not rehiring
her. On this issue, Compass bank called Bianca Ramos as a witness. Ramos testified that she made
the decision not to rehire Madere, and she did not consider Madere qualified to be a branch manager
because Madere’s only previous experience as a bank manager was too remote in time and was with
a credit union, not a bank.
To contradict this testimony, Madere attempted to introduce evidence that the employees who
received branch manager positions after her layoff were less qualified than she was for those

positions. Before trial, the parties had a discovery dispute over which employee files Compass Bank
must produce to Madere, the result of which was the Court ordereing Compass Bank to turn over
documents on several groups of employees. Madere claims that after trial it learned that Compass
Bank did not comply with the Court’s order, which she claims prevented her from effectively crossexamining Ramos.
Madere now moves for the Court to enforce its previous order and to grant her additional
discovery. She seeks the applications and resumes for all branch managers who worked for Compass
Bank in the Austin area in 2009 and the first quarter of 2010. She also seeks any correspondence
from Bianca Ramos to these employees.

Although the original motion to compel—and

corresponding order—only dealt with documents related to branch managers working in 2009,
Madere also seeks documents from the first quarter of 2010 to ensure that she obtains documents for
anyone hired in late 2009, for whom the hiring paperwork was not completed until 2010.
Compass Bank opposes Madere’s request on two grounds: (1) the files are not relevant
because the employees are not similarly situated to Madere; and (2) Madere never requested such
a broad category of documents. Compass also contends that these issues are untimely, and should
have been raised before trial.
II.

Previous Motion to Compel
In August of 2011, Madere filed a motion to compel. Among other matters not relevant here,

Madere requested that the Court require Compass Bank to produce documents responsive to two
requests for production:
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the “applications and resumes of any branch manager that was hired in the Austin
area (including surrounding counties) in 2009.” Third Request for Production # 4;
and
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the “applications and resumes of any [business banking officer] that was hired in the
Austin area (including the surrounding counties) in 2009.” Fourth Request for
Production # 3.

The Court granted Madere’s motion in part and denied it in part. Clerk’s Doc. No. 33. The
discussion in the order on this point is brief. The Court described the documents in issue as
“personnel files of business banking officers and branch managers Compass Bank either did not
terminate, terminated and then rehired, or simply hired after the bank fired Madere.” Id. at 2. After
describing the documents as stated, the Court ruled that:
The Court GRANTS Madere’s request for the personnel files of the BBOs and
branch managers. At the hearing, Compass Bank’s counsel stated that the number
of relevant people was approximately 15 people. This information may be relevant
to Madere’s claim, as she must demonstrate that similarly-situated employees were
treated differently. Therefore, the Court ORDERS Compass Bank to produce these
personnel files.
Id. Madere contends that Compass Bank failed to comply with this order. Compass Bank contends
that it fully complied, and any failure to do so stems from a misunderstanding—in either event,
Compass Bank asserts that if it had produced more documents, it would not have affected the trial.
Finally, Compass contends that these issues should have been raised before trial.
III.

Analysis
It appears to the Court that Compass Bank failed to comply fully with the Court’s order. In

its response, Compass Bank states that it “produced the fifteen personnel files that Madere requested
in her Fourth RFP No. 2. These are the only personnel files that Madere requested and the only
personnel files that Madere asked the Court to compel Compass to produce.” Response at 3. This
is inaccurate. Madere’s motion to compel requested those files, but also requested the applications
and resumes of branch manager and BBOs hired in the Austin area (including surrounding counties)

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in 2009. The court ordered Compass Bank to produce the personnel files of BBOs and branch
managers, described in the order as “business banking officers and branch managers Compass Bank
either did not terminate, terminated and then rehired, or simply hired after the bank fired Madere.”
This is a much larger set of employees. Although the court mentioned “approximately 15 people,”
that figure came from Compass Bank’s representation that about 15 people fit the description.
Apparently, that was not an accurate estimation.
Compass Bank justified its limited production by claiming that only a few personnel files
were relevant to Madere’s claim. It claims to have “produced the personnel files, including the
resumes and applications, of the individuals hired into the two positions that Madere applied for in
2009, the BCM [Banking Center Manager] position in Georgetown and the DRE position.” It
considered those two positions “the only job openings on which Madere could rely for her failure
to hire claim,” so it did not have to produce other files. But the Court’s order was broader than this,
as it required Compass Bank to produce the personnel files for all managers hired in 2009.
Compass Bank further justified its failure to produce files based on its narrow view of the
term “hired.” Compass Bank “did not produce the personnel files of then-current Compass
employees who were either demoted or promoted into BCM positions in 2009 in Austin area
locations because they were not new hires, and it did not consider them responsive to either
Madere’s discovery requests or the Court’s October 28th Order.” Response at 4. And Compass
Bank did not produce the files of Guaranty Bank branch managers “who became Compass BCMs
effective August 2009 when Compass acquired Guaranty Bank.” Id.
Eliminating BCMs who were promoted or demoted into their position takes too narrow a
view of “hired.” While Madere worked for Compass Bank, she could only have become a BCM via
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a promotion or demotion, as Compass Bank would not have fired her and then immediately rehired
her for such a change. Instead, it would have simply transferred her into the position. The case is
the same for any other Compass employee. Viewed in light of the Court’s order to produce the files
of “business banking officers and branch managers Compass Bank either did not terminate,
terminated and then rehired, or simply hired after the bank fired Madere,” Compass Bank should
have used a more liberal definition of “hired” than it did. At a minimum, if Compass Bank believed
that such a narrow reading was warranted, it should have sought clarification from the Court.1
Compass Bank did not produce all of the documents ordered by the court. And its reasons
do not justify its noncompliance. Although Compass Bank claims that the employees were not
similarly situated, the Court concluded otherwise, stating in its order that “[t]his information may
be relevant to Madere’s claim, as she must demonstrate that similarly-situated employees were
treated differently.” If Compass Bank wanted to exclude the files from trial, it could have filed a
motion in limine or raised a trial objection. Further, Compass Bank’s focus on what Madere
requested skips over a more relevant question: What did the Court order?
Finally, with regard to Plaintiff’s timeliness in filing this motion, the Court rejects Compass’
argument. While the Court certainly would prefer to always have these matters resolved before a
jury trial, it also is sensitive to punishing a party because it did not complain loudly and quickly
enough to another party’s transgression. As the evidence at the hearing demonstrated, Plaintiff’s
counsel was attempting to obtain compliance throughout the weekend preceding trial, and reasonably
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The Court agrees with Compass Bank that Madere was not entitled to the files of BCMs
hired in 2010, as Madere did not request them, and the Court did not order them produced. Further,
the Court agrees that the personnel files of Guaranty Bank managers employed at the time of
Compass’ acquisition of Guaranty were not within the scope of the Court’s order, and thus Compass
did not fail to comply with the order by not producing those files.
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believed that he had received all of the documents by the time trial commenced. Because the parties
never had a detailed discussion of what was—and more importantly, was not—being produced, it
could not have been apparent to Plaintiff’s counsel that he had something to complain about until
after trial.
Accordingly, the Court HEREBY GRANTS IN PART AND DENIES IN PART Plaintiff’s
Opposed Motion to Compel Compliance with Discovery Order (Clerk’s Doc. No. 72). For each
branch manager hired in 2009, Compass Bank must produce their resume and application, as well
as any correspondence to them from Bianca Ramos. Compass Bank is explicitly directed to include
new people from outside Compass Bank, transfers from other Compass Bank branch manager
positions, and anyone promoted or demoted into a branch manager position. Compass Bank is not
required to produce the documents for branch managers from Guaranty Bank, nor for BCMs were
hired in 2010. For the geographical area, Compass Bank shall use the 30 branch locations its website
defines as the Austin area. See Exhibit 14 to Plaintiff’s Motion. All such files shall be produced
to Plaintiff’s counsel by May 4, 2012.
SIGNED this 16th day of April, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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