Bibbs v. New River Community and Technical College et al

Filing 110

ORDER: It is ORDERED that Plaintiff's 95 MOTION for Sanctions is DENIED. Signed by Magistrate Judge R. Clarke VanDervort on 12/6/2012. (cc: attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
RICHARD L. BIBBS,
Plaintiff,
v.
NEW RIVER COMMUNITY AND
TECHNICAL COLLEGE, et al.,
Defendants.

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Civil Action No. 5:11-0519

ORDER
Pending before the Court is Plaintiff’s Motion for Sanctions (Document No. 95.), filed on
November 1, 2012. Specifically, Plaintiff seeks sanctions against Defendants alleging that Defendants
are in contempt of a Court Order. (Id., p. 1.) Plaintiff contends that Defendants are disobeying the
Court’s Order that Defendants produce “a copy of each successful applicants’ cover letter and resume
with respect to each of the jobs.” (Id.) Specifically, Plaintiff complains that Defendants are refusing
to provide the applicant materials concerning the successful applicant for the temporary position of
Human Resources Secretary. (Id., pp. 1 - 2.) Plaintiff states that he contacted defense counsel on
October 22, 2012, requesting a copy of the above information. (Id.) Plaintiff alleges that defense
counsel responded “by mail and informed plaintiff that ‘New River did not hire any individual for
the position of Human Resource Secretary.’” (Id.) Plaintiff complains that defense counsel “sent
plaintiff [the Human Resources Assistant III’s] resume, which Ms. Justice was aware plaintiff already
had.” (Id., p. 1.) Plaintiff states that he contacted defense counsel on October 24, 2012, “to inform
her that the documents she sent were not the documents relevant to the court order.” (Id.) Plaintiff
argues that Ms. Leah Taylor’s Affidavit reveals that an additional individual was hired for the
temporary position of Human Resources Secretary. (Id., p. 2.) Specifically, Plaintiff explains as

follows:
The posting (Human Resources Secretary Part-Time, Temporary) states the position
will last from November 1, 2011, until mid-February 2012. . . . New River decided
to have the Human Resources Assistant III work overtime to offset the balance of the
other employee. On November 28, 2011, the Human Resource Assistant III resigned.
Thereafter, a previous part-time, temporary employee was hired for the period from
December 1, 2011, until mid-February 2012. The position was not advertised as the
temporary employee was already trained and could begin immediately.
(Id.) Plaintiff argues that Ms. Taylor’s Affidavit reveals that another individual was hired, but defense
counsel refuses to provide Plaintiff with a copy of that individual’s applicant materials. (Id.) Plaintiff,
therefore, requests the Court “to sanction the defendants with contempt of court order and require the
defendant to pay the plaintiff attorney fees for his time required to prepare this motion.” (Id., p. 1.)
As Exhibits, Plaintiff attaches the following: (1) A copy of the “Certification of Plaintiff” (Id.,
pp. 4 - 5.); (2) A copy of defense counsel’s letter to Plaintiff dated October 22, 2012 (Id., p. 6.); and
(3) A copy of defense counsel’s letter to Plaintiff dated October 24, 2012 (Id., p. 7.).
On November 14, 2012, Defendants filed their “Response in Opposition to Plaintiff’s Motion
for Sanctions.” (Document No. 101.) First, Defendants explain that the job posting for the temporary
position of Human Resources Secretary was closed without selecting any applicant. (Id., p. 2.)
Defendants state that “[a]nother employee, the Human Resources Assistant III assumed additional
duties and worked overtime to fill in for the Human Resources Secretary, who was out on maternity
leave.” (Id.) Defendants contend that “[b]ecause no successful applicant was selected, the Defendants
did not have successful applicant materials to produce to Plaintiff in response to his request for the
documents related to this position.” (Id.) Next, defense counsel states that during the telephone call
on October 22, 2012, it was explained “to the Plaintiff that there was no successful applicant for this
position.” (Id.) In response to Plaintiff’s telephone call, however, “the Defendants voluntarily
provided the resume, references and academic transcript of the employee who filled in for the Human

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Resources Secretary to the Plaintiff on the same day of the Plaintiff’s telephone call, even though this
request by Plaintiff falls outside the scope of the Order issued by the Court.” (Id.) Defense counsel
claims that Plaintiff again contacted her office on October 24, 2012, and “in an angry manner,
complained that the resume, references and academic transcript that were voluntarily sent to the
Plaintiff were not the documents Plaintiff requested.”1 (Id., pp. 2 - 3.) Defense counsel states that
upon “learning of the Plaintiff’s angry telephone call, defense counsel sent Plaintiff a letter on
October 24, 2012 advising Plaintiff that the Defendants produced the documents that they believed
Plaintiff had requested but that if Plaintiff would clarify exactly what additional documents he is
seeking, the Defendants will try to address his request.” (Id., p. 3.) Defendants complain that
“Plaintiff did not respond to Defendants’ letter and filed his Motion for Sanctions instead.” (Id.)
Defendants stated that they have “made a good faith effort to provide documents requested by the
Plaintiff, even though these documents fell outside the scope of Plaintiff’s Request for Production
of Documents and outside of this Court’s October 4, 2012 Order.” (Id.) Defendants, therefore, request
that Plaintiff’s Motion for Sanctions be denied. (Id.)
As Exhibits, Defendants attach the following: (1) A copy of defense counsel’s letter to
Plaintiff dated October 22, 2012 (Document No. 101-1, pp. 2 - 3.); and (2) A copy of defense
counsel’s letter to Plaintiff dated October 24, 2012 (Id., pp. 5 - 6.).
Rule 16(f) provides for sanctions, including those sanctions set forth in Rule 37(b)(2)(A)(ii)(vii), if a party or its attorney “fails to obey a scheduling or other pretrial order.” The Rule further
provides:
Instead of or in addition to any other sanction, the court must order the party, its

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Plaintiff states that he “attempted to explain to [defense counsel’s] assistant the document
in question, but Ms. Justice’s assistant wanted to argue with the plaintiff.” (Document No. 95, p. 2.)

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attorney, or both to pay the reasonable expenses – including attorney’s fees – incurred
because of any noncompliance with this rule, unless the noncompliance was
substantially justified or other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 16(f)(2). Among the sanctions available under Rule 37(b)(2), the Court may prohibit
the introduction of designated matters into evidence, strike pleadings, stay proceeding until the order
is obeyed, dismiss the action, enter default judgment, or treat the failure to obey as contempt of court.
See Fed. R. Civ. P. 37(b)(2)(A)(ii)-(vii). “The imposition of sanctions under Rule 37(b) is wholly
within the trial court’s discretion, but ‘[i]t is not . . . a discretion without bounds or limits.’” Carney
v. KMart Corp., 176 F.R.D. 227 (S.D.W.Va. 1997) (quoting Hathcock v. Navistar Int’l Transp. Corp.,
53 F.3d 36, 40 (4th Cir. 1995). There is a four-part test in determining whether sanctions are
warranted under Rule 37. “Specifically, the court must determine (1) whether the non-complying
party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the
need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions
would have been effective.” Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir.
2001); see also, Anderson v. Foundation for Advancement, Educ. & Employment of Am. Indians,
155 F.3d 500, 504 (4th Cir. 1998).
Based upon a liberal reading of Plaintiff’s Motion, the undersigned finds that Plaintiff’s
Motion for Sanctions concerns Defendants’ alleged failure to comply with the Court’s Order dated
October 4, 2012. By Order entered on October 4, 2012, the undersigned directed that Defendants
shall produce a copy of the following documents to Plaintiff:
(1) A copy of the Job Posting and Job Description for each of the jobs for which
Plaintiff applied; (2) A copy of each successful applicant’s Cover Letter and Resume
with respect to each of the jobs; (3) A copy of each successful applicant’s Credentials
Face Sheet; (4) A copy of each successful applicant’s Post Interview Summary Guide;
(5) A copy of each successful applicant’s Committee Chairs Overall Candidate
Summary Sheet; and (6) A copy of each successful applicant’s Competency Rating
Sheet.

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(Document No. 77.) Applying the above four factors to the facts of the instant case, the Court finds
that neither the sanctions under Rule 16(f) nor Rule 37 are warranted. First, there is no indication that
Defendants have acted in bad faith or failed to comply with the Court’s Order dated October 4, 2012.
Defendants contend there was no “successful applicant” for the Human Resources Secretary position
because New River closed the job search after deciding to have the Human Resources Assistant III
work overtime to fill in for the Human Resources Secretary. Acting in good faith, however,
Defendants provided Plaintiff with a copy of the resume, references and academic transcript for the
Human Resources Assistant III. Referencing the Affidavit of Leah Taylor, Plaintiff contends that
Defendants are not providing him with complete information concerning the “successful applicant”
for the Human Resources Secretary position. Plaintiff argues that Ms. Taylor’s Affidavit reveals that
the Human Resources Assistant III resigned and another individual was hired for the temporary
position of Human Resources Secretary. Specifically, Ms. Taylor describes the job position for
Human Resources Secretary as follows:
In or around October 2011, Plaintiff applied for the position of Human Resources
Secretary. This was a part-time, temporary position with no benefits. The position
was created to “fill-in” temporarily for the Human Resources Representative, who
was on maternity leave. On October 18, 2011, letters were mailed to all candidates
that New River decided to close the search. New River decided to have the Human
Resources Assistant III work overtime to offset the absence of the other employee.
On November 28, 2011, the Human Resources Assistant III resigned. Thereafter, a
previous part-time, temporary employee was hired for the period from December 1,
2011, until mid-February 2012. The position was not advertised, as the temporary
employee was already trained and could begin immediately.
(Document No. 66-1, pp. 4 - 5.) It appears that Plaintiff is requesting information concerning the
“previous part-time, temporary employee” who was “hired for the period of December 1, 2011, until
mid-February 2012.” Although the job position for Human Resources Secretary became vacant upon
the resignation of the Human Resources Assistant III, Ms. Taylor’s Affidavit states that the job

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position for the Human Resources Secretary “was not advertised, as the temporary employee was
already trained and could begin immediately.” Thus, the undersigned finds that the “previous parttime, temporary employee” that was “hired for the period of December 1, 2011, until mid-February
2012,” was not a “successful applicant.”2 Accordingly, Defendants are not required under the Court’s
Order dated October 4, 2012, to produce information concerning the “previous part-time, temporary
employee.” It is hereby ORDERED that Plaintiff’s Motion for Sanctions (Id., Document No. 95.)
is DENIED.
In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the rulings set forth
above on this non-dispositive motion may be contested by filing, within 14 days, objections to this
Order with United States District Judge Irene C. Berger. If objections are filed, the District Court will
consider the objections and modify or set aside any portion of the Order found clearly to be erroneous
or contrary to law.
The Clerk is requested to send a copy of this Order to counsel of record and Plaintiff, who
is acting pro se.
ENTER: December 6, 2012.

R. Clarke VanDervort
United States Magistrate Judge

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If the position for Human Resources Secretary was not advertised following the resignation
of the Human Resources Assistant III, Plaintiff cannot argue that he applied for the position following
the resignation of the Human Resources Assistant III.

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