Equal Employment Opportunity Commission v. Wal-Mart Stores East, LP

Filing 70

ORDER denying as moot 48 Motion to Dismiss; denying 60 Motion to Dismiss. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.

Case No. 17-C-70

WAL-MART STORES EAST LP,
Defendant.

DECISION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS

Plaintiff Equal Employment Opportunity Commission brought this action against Defendant
Wal-Mart Stores East LP on behalf of a terminated employee, Marlo Spaeth, a woman with Down
Syndrome, alleging discrimination under Title I of the Americans with Disabilities Act of 1990
(ADA) and Title I of the Civil Rights Act of 1991. On October 2, 2018, Wal-Mart filed a motion
to dismiss pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure, seeking dismissal
of this action due to the EEOC’s alleged failure to produce Spaeth to complete her court-ordered
mental examination. On October 18, 2018, Wal-Mart filed a motion withdrawing its original motion
to dismiss and renewing its request to dismiss the EEOC’s claims pursuant to Rules 37 and 41. WalMart has also requested that the EEOC produce Spaeth to complete her deposition. For the
following reasons, Wal-Mart’s motion to dismiss will be denied but its request that the EEOC make
Spaeth available for further questioning to complete her deposition will be granted.
BACKGROUND
The EEOC brought this action on behalf of Marlo Spaeth against her former employer, WalMart alleging that Wal-Mart discriminated against her on account of her cognitive disability and

failed to reasonably accommodate her. Given that Spaeth’s mental condition has been placed at issue
in this case, Wal-Mart moved the court under Rule 35 for an order compelling the mental
examination of Spaeth. After the EEOC filed a brief in opposition to the motion, the court held a
telephone motion hearing on April 25, 2018. At the hearing, the court concluded that Wal-Mart was
entitled to its own examination and directed the parties to consult with each other in an effort to
reach an agreement regarding the limitations and parameters of the examination.
The court held a status conference on May 15, 2018, to discuss the status of the agreement
regarding the examination. While the parties agreed about the location of the examination, they did
not agree as to whether the examination should last for two hours or up to four hours or whether
the examination should be recorded. ECF No. 34. Wal-Mart stated that its expert believed he
needed anywhere from two to four hours to complete the examination, depending on Spaeth’s
tolerance and the speed of the examination. The court indicated that Wal-Mart’s expert could
conduct the examination for two hours, but if the initial examination was not effective and the expert
believed a break would allow him to complete it, he could continue the examination on a different
day for a combined examination total of no more than four hours. The court also found that a
guardian may be present and have the right to terminate the examination if necessary, and that the
examination could be videotaped. ECF No. 36. After the status conference, the court issued an
order granting the motion for a mental examination, subject to the limitations set forth in the hearings
held on April 25, 2018 and May 15, 2018. ECF No. 37.
Wal-Mart’s expert commenced his examination of Spaeth on June 1, 2018, with the
understanding that the initial examination would be limited to two hours and continued at another
time if necessary for up to no more than two additional hours. After the initial examination
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concluded, Wal-Mart sought to schedule another two-hour session. The EEOC declined to schedule
an additional examination, indicating that the court noted the defendant’s expert could conduct
further examination only if the initial examination was cut short by Spaeth’s guardian or the
defendant’s expert. The EEOC later advised Wal-Mart that Spaeth’s guardian would not permit
Spaeth to be examined for an additional two-hour session.
The court held a status conference on June 29, 2018, to address the length of the examination
and the guardian’s position that she would not permit Spaeth to continue the examination. At that
conference, the court clarified that it had not intended to limit the examination to two hours and that
the expert could examine Spaeth for up to four hours if necessary. The court further stated,
however, that it would not order Spaeth to be submitted for further testing given the guardians
position, but would entertain a motion to dismiss or some other remedy so as to avoid any prejudice
to the defendant. ECF No. 41. The parties conferred regarding continued examination in July,
August, and September 2018. The EEOC would not produce Spaeth for the completion of the
mental health examination without her guardian’s consent.
In the meantime, the parties took Spaeth’s deposition on September 26, 2018. Although
Spaeth was made available for an approximately nine and a half hour day, the deposition itself lasted
about six hours. When Wal-Mart attempted to schedule another time to finish the deposition, the
EEOC would not voluntarily produce Spaeth for further questioning. The court held a hearing
regarding the dispute on October 3, 2018. The court directed the defendant to send in the
videotaped deposition. The court noted that after reviewing the deposition, it would make a
determination as to whether the deposition would be continued.

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On October 2, 2018, Wal-Mart filed a motion to dismiss. The following day, the EEOC
agreed to produce Spaeth for additional examination. The EEOC explained, “After witnessing Ms.
Spaeth’s deposition last week, and after being informed of Wal-Mart’s motion to dismiss the case,
[Spaeth’s guardian] has decided to make Ms. Spaeth available to complete Walmart’s Rule 35
examination.” ECF No. 61-2. On October 18, 2018, Wal-Mart filed a renewed motion to dismiss.
ANALYSIS
A. Continuation of Mental Examination
Wal-Mart relies on both Rules 37 and 41 of the Federal Rules of Civil Procedure as bases
to dismiss this lawsuit for the EEOC’s failure to produce Spaeth for continued examination. District
courts have the power to impose sanctions that are “proportionate to the circumstances surrounding
a party’s failure to comply with discovery rules” or court orders regarding discovery. Rice v. City
of Chicago, 333 F.3d 780, 784 (7th Cir. 2003) (citing Melendez v. Ill. Bell Tel. Co., 79 F.3d 661,
672 (7th Cir. 1996)); see also Dotson v. Bravo, 321 F.3d 663, 666–67 (7th Cir. 2003). Dismissal
under Rule 37(b) is appropriate when a plaintiff fails to comply with a discovery order; the failure
resulted from willfulness, bad faith, or fault; and a lesser sanction would be inappropriate. See Long
v. Steepro, 213 F.3d 983, 986 (7th Cir. 2000). Rule 41 provides that, if the plaintiff fails to
prosecute or comply with the Federal Rules of Civil Procedure or a court order, “a defendant may
move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). The Seventh Circuit has
cautioned that a district court should invoke Rule 41 “sparingly and should dismiss a case under Rule
41 only ‘when there is a clear record of delay or contumacious conduct, or when other less drastic
sanctions have proven unavailing.’” Salata v. Weyerhaeuser Co., 757 F.3d 695, 699 (7th Cir. 2014)
(quoting Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir. 1983)). Ordinarily, the court should
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warn the plaintiff that the sanction of dismissal may be imposed. See Williams v. Chi. Bd. of Educ.,
155 F.3d 853, 857 (7th Cir. 1998).
Wal-Mart asserts that the EEOC has worked to thwart its efforts to have a full mental
examination of Spaeth. It maintains that after months of refusing an examination, the EEOC only
agreed to continue the examination after Wal-Mart filed its original motion to dismiss. Given the
EEOC’s conduct, Wal-Mart argues that the EEOC has forfeited its right to pursue this action. The
EEOC contends that it has consistently acted in good faith and in compliance with all court orders.
Even if it had properly understood the court’s order to allow the defendant’s expert to examine
Spaeth for up to four hours in the first instance, the EEOC argues that it could not have produced
Spaeth for continued examination because her legal guardian withheld consent for further
examination. Spaeth’s guardian believed that the two hours of psychological testing that had
occurred were a burden on Spaeth and was reluctant to schedule additional testing. It was only after
Spaeth’s guardian witnessed Spaeth’s deposition that she reconsidered her position regarding the
continuation of the mental examination. The EEOC promptly notified Wal-Mart of the guardian’s
decision to allow the mental examination to continue.
After considering the unique circumstances of this action, the court finds neither a sufficient
factual basis to establish that the EEOC’s actions were willful or in bad faith nor a clear record of
delay or contumacious conduct. After Spaeth’s legal guardian consented to continued examination,
the EEOC attempted to work with Wal-Mart to schedule a time for the examination to occur in
accordance with the court’s order. Although Wal-Mart asserts it has been prejudiced by the delay
in completing the examination, this slight prejudice does not warrant the severe sanction of dismissal.
Accordingly, Wal-Mart’s motion to dismiss is denied.
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B. Continuation of Deposition
Wal-Mart also requests that the EEOC produce Spaeth to complete her deposition. The
EEOC does not appear to argue that Spaeth does not have the ability or capacity to attend another
day of depositions but rather that the nine and a half hour day of her initial deposition was enough.
It asserts that the initial deposition time would have been sufficient but defendant’s counsel’s
questions were cumulative and repetitive and that counsel continued to request unnecessary breaks
throughout the day.
The court has reviewed the videotaped deposition of Spaeth taken on September 26, 2018,
and notes that the deposition was conducted professionally. As the court noted during the October
3, 2018 telephone conference, it is difficult to illicit information from someone with a profound
cognitive disability. The record does not disclose Spaeth’s level of functioning but it is clear from
the deposition that she has only a limited understanding of the questions put to her. She was unable
to provide answers to many of the questions counsel asked, which may in itself be relevant evidence
of Spaeth’s overall competence and qualification for the job she held. Yet, it appears that counsel’s
questioning assumes that she is functioning as a person without such a disability. While counsel for
defendant’s questions were proper, some were repetitious. In addition, as a result of the witness’s
limitations, the continued objections to the form of the questions raised by plaintiff’s counsel seemed
to confuse her. In any event, these difficulties, along with the breaks defendant’s counsel requested,
which were reasonably sought to accommodate the witness, prevented defendant’s counsel from
being able to address all areas relevant to the EEOC’s claims.
Under these circumstances, though I question whether a further deposition will likely lead
to the discovery of relevant evidence, I conclude that Wal-Mart should be allowed to complete its
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deposition of Spaeth. Having been accused of terminating Spaeth’s employment in violation of the
ADA, Wal-Mart is entitled to question her directly in an effort to discover whatever information she
has that might be relevant to the claim. The EEOC is therefore directed to make Spaeth available
for further questioning to complete her deposition. At the same time, counsel for Wal-Mart is
encouraged to give strong consideration to whether much, if any, additional questioning is likely to
serve his client and its defense.
CONCLUSION
For the reasons stated above, Wal-Mart’s motion to dismiss (ECF No. 60) is DENIED and
its initial motion to dismiss (ECF No. 48) is DENIED as moot. The EEOC shall make Spaeth
available for further questioning to complete her deposition.
SO ORDERED this 6th day of December, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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