Langenbach v. Wal-Mart Stores Inc

Filing 33

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph on 8/14/2013 GRANTING IN PART AND DENYING IN PART 28 Plaintiff's Expedited Nondispositive Motion to Compel Discovery.(cc: all counsel)(llc)

Langenbach v. Wal-Mart Stores Inc

Doc. 33

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ERIKA M. LANGENBACH,
Plaintiff,
v.

Case No. 12-CV-1019

WAL-MART STORES, INC.,
Defendant.

DECISION AND ORDER ON PLAINTIFF’S EXPEDITED NON-DISPOSITIVE
MOTION TO COMPEL DISCOVERY

On October 8, 2012, the plaintiff, Erika M. Langenbach (“Langenbach”) filed a complaint
against the defendant Wal-Mart Stores, Inc. (“Wal-Mart”) alleging violations of the Family and
Medical Leave Act (“FMLA”). On February 6, 2013, Langenbach amended her complaint to add
allegations of sex discrimination under Title VII of the Civil Rights Act of 1964 and discriminatory
pay under the Equal Pay Act. Langenbach worked as Assistant Manager from 2008 until 2011 at
Wal-Mart store #2658 in West Bend, Wisconsin. (Am. Compl. ¶¶ 17, 48-50, Docket # 15.)
Currently before the court is Langenbach’s expedited non-dispositive motion to compel
responses to plaintiff’s requests for production Nos. 6-8, 10-13, 21, 22, 26, and 29; plaintiff’s
interrogatories Nos. 8, 10-11, 13-17; the continued deposition of Ms. Wilcox; production of
deponents Joanne Massopust and Joseph Frankiewicz; and production of a deponent for the 30(b)(6)
deposition.
Under Fed. R. Civ. P. 26(b)(1) parties may obtain discovery “regarding any nonprivileged
matter that is relevant to any party’s claim or defense.” The information sought need not itself be

Dockets.Justia.com

admissible as long as “the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.” Fed. R. Civ. P. 26(b)(1).
In this case, the interrogatories and requests for production Langenbach seeks to compel
responses to are overbroad as to time and geographic scope. Document Request Nos. 6, 8, 10-13, and
21 as well as Interrogatory Nos. 10, 11, and 13-17 request information from 1999 through the present.
Request No. 7 has no temporal limitation. Subsequent to service of these requests, the parties
generally reached an agreement limiting the temporal scope; however, the parties still have a slight
disagreement on this matter. Langenbach has agreed to limit the discovery requests to 2008 until the
present (Declaration of Kate Fisher (“Fisher Decl.”), Ex. N, Docket # 29-14) whereas the defendant
has agreed to produce certain documents from 2008 through 2011 (the time period Langenbach was
employed as an Assistant Manager) (Fisher Decl., Ex. O, Docket # 29-15). The court finds it is not
overly broad or unduly burdensome for the defendant to produce documents from 2008 until the
present. Even though Langenbach was only employed as an Assistant Manager until 2011, courts
commonly permit discovery for a reasonable number of years following the plaintiff’s claim, and
approximately two years is not unreasonable. See, e.g., Horizon Holdings, L.L.C. v. Genmar Holdings,
Inc., 209 F.R.D. 208, 211-12 (D. Kan. 2002) (finding documents for a period of two years subsequent
to the defendant’s alleged conduct not overly broad); Milner v. Nat’l Sch. of Health Tech., 73 F.R.D.
628, 632 (E.D. Pa. 1977) (same).
As to geographic scope, Document Request Nos. 7-8, 13, 22, and 26, as well as Interrogatory
Nos. 10, 11, and 17 request information encompassing complaints, investigations, etc. for the entire
State of Wisconsin. Here too, the parties have subsequently generally agreed to limit the requests.
The plaintiff has agreed to limit the requests to the West Bend location or any other location

-2-

managed by Langenbach’s district manager, Chris Meidt, and his predecessors (Docket # 29-14)
whereas the defendant has agreed to produce relevant information for the West Bend location (where
Langenbach was employed as an Assistant Manager). (Docket # 29-15). Langenbach has failed to
show the relevance of information regarding stores managed by a predecessor to Langenbach’s
manager. However, as discovery in Title VII actions should generally be limited to employment
units, departments, and sections in which there are employees similarly situated to plaintiff, see Glenn
v. Williams, 209 F.R.D. 279, 281-82 (D.D.C. 2002), it is proper for plaintiff to request documents both
at the West Bend location where Langenbach worked and locations managed by Langenbach’s
district manager, Chris Meidt.
Turning to the type of information requested, the court finds the requests overbroad in several
respects. Interrogatory Nos. 10-11 and Document Request Nos. 6-8 and 26 seek information about
any and all alleged discrimination by the defendant, including alleged violations of the Minnesota
Human Rights Act, Americans with Disabilities Act, or “any other federal or state labor laws.” As
one court faced with similarly broad requests aptly stated, Langenbach’s requests “could not be more
oceanic.” See Johnson v. Jung, Nos. 02 C 5221, 04 C 6158, 2007 WL 1752608, *7 (N.D. Ill June 14,
2007). Discovery requests seeking disclosure of every conceivable type of discrimination ever made
against a defendant are generally deemed overly broad and impermissible. Id. The cases cited by
Langenbach do not stand for the proposition she claims. In Sills v. Benedix Commercial Vehicles Sys.,
LLC, No. 04-CV-149, 2005 WL 2777299 (N.D. Ill. March 3, 2005), the court did not allow discovery
of any and all allegations of discrimination. Rather, the plaintiff in Sills alleged an FMLA claim and
the court allowed discovery of other FMLA claims, not claims of discrimination generally. Further,
Langenbach’s quote from Cardenas v. Prudential Ins. Co. of Am., Nos. 99-1421, 1422, and 1736, 2003

-3-

WL 244640 (D. Minn. Jan. 29, 2003) leaves out vital language that alters the meaning of the quote.
Langenbach quotes the Cardenas court as stating that “there is ample case law holding that
information about other discrimination claims is discoverable.” (Pl.’s Br. at 4, Docket # 28.) What
Langenbach leaves out is the remainder of the quote, in which the court states that “there is ample
case law holding that information about other discrimination claims is discoverable in such cases,”
Cardenas, 2003 WL 244640, at *3 (emphasis added), referring to cases alleging a pattern or practice
of discrimination. Even so, the Cardenas court stated that discovery should be limited to “the practices
and classes at issue in the particular case.” Id. at *2.
Discovery sought must be related to the type of discrimination alleged. See, e.g., Glenn, 209
F.R.D. at 281 (other claims of discrimination against defendant are discoverable if limited to same
form of discrimination); Lyoch v. Anheuser-Busch Cos., Inc., 164 F.R.D. 62, 69 (E.D. Mo. 1995) (in case
alleging discrimination based on age and sex, information concerning race of persons terminated was
not relevant and, therefore, not discoverable); Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49, 61
(D.N.J. 1985) (when complaint alleges discrimination based on race and age, information relating
to possible discrimination based on sex, religion, national origin, or any other basis not relevant and,
therefore, not discoverable); Smith v. Community Fed. Sav. & Loan Ass’n, 77 F.R.D. 668, 671 (N.D.
Miss. 1977) (in action alleging racial discrimination in connection with hiring decisions,
interrogatories seeking information about gender of other applicants not permissible).
Langenbach has made a claim under the FMLA, a claim for sex discrimination under Title
VII, and a claim under the Equal Pay Act. For claims of sex discrimination, to establish a prima facie
case of discrimination under the indirect method of proof, one of the elements a plaintiff must prove
is that similarly situated others not in her protected class received more favorable treatment. Brummett

-4-

v. Lee Enterprises, Inc., 284 F.3d 742, 744 (7th Cir. 2002). Employees are “similarly situated” if they
are directly comparable in all material respects. Serednyj v. Beverly Healthcare, Inc., 656 F.3d 540, 551
(7th Cir. 2011). “‘This normally entails a showing that the two employees dealt with the same
supervisor, were subject to the same standards, and had engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish their conduct or the employer’s
treatment of them.’” Id. (quoting Radue v. Kimberly–Clark Corp., 219 F.3d 612, 617–18 (7th Cir.2000)).
Thus, regarding Document Request Nos. 6-8 and 26 and Interrogatory Nos. 10-11, the defendant has
already agreed to supplement its production with responsive documents relating to requests for
FMLA leave made by salaried management associates (i.e., those similarly situated) at the store
Langenbach worked at from 2008 through 2011. (Docket # 29-15 at 2-5.) The defendant should
provide this information for 2008 through the present, and include locations managed by
Langenbach’s district manager. The defendant should also produce documents responsive to the
requests that pertain to Title VII sex discrimination and the Equal Pay Act.
Document Request Nos. 10-11 and 21-22 and Interrogatory Nos. 14-15 and 17 seem to be
seeking information regarding potential comparators. However, these requests are also extremely
overbroad. To the extent these requests seek information relevant to comparable employees seeking
FMLA leave, the defendant should produce responsive information.
Document Request Nos. 12-13 and Interrogatory No. 16 seems to be asking for information
relevant to claims under the Americans with Disabilities Act. These requests are not likely to lead
to the discovery of admissible evidence as Langenbach has not alleged a claim under the ADA.
Regarding Document Request No. 29 and Interrogatory Nos. 8 and 13, the defendant has agreed to
supplement its responses (Docket # 29-15 at 4-5) and Langenbach has not shown why this is

-5-

insufficient. Thus, plaintiff’s motion to compel responses to Document Request Nos. 12-13 and 29
and Interrogatory Nos. 8, 13, and 16 is denied.
Finally, regarding the continued deposition of Ms. Wilcox, the plaintiff makes no argument
as to the necessity to continue the deposition of Ms. Wilcox beyond the fact the initial deposition
lasted only one hour and forty minutes. (Pl.’s Br. at 3, Docket # 28.) Nor has the plaintiff made any
argument to support compelling production of deponents Joanne Massopust and Joseph Frankiewicz
and production of a deponent for the 30(b)(6) deposition. As the plaintiff acknowledges, the parties
were given additional time, until August 30, 2013, to complete depositions previously noticed by
either party. (Docket # 28 at 2.) Thus, there is still time to complete these depositions. As such,
plaintiff’s motion to compel these depositions is denied.
ORDER
NOW, THEREFORE, IT IS ORDERED that plaintiff’s motion to compel is GRANTED
IN PART AND DENIED IN PART. Plaintiff’s motion to compel responses to plaintiff’s Request
for Production of Documents Nos. 6-8, 10-11, 21-22, and 26 and Interrogatory Nos. 10-11, 14-15,
and 17 is GRANTED IN PART AND DENIED IN PART. The defendant should provide
responsive information regarding the FMLA, Title VII sex discrimination, and the Equal Pay Act,
for 2008 through the present, and include the West Bend location and other locations managed by
Langenbach’s district manager, Chris Meidt.
IT IS FURTHER ORDERED that the plaintiff’s motion to compel responses to Request for
Production of Documents Nos. 12-13 and 29 and Interrogatory Nos. 8, 13, and 16 is DENIED.

-6-

FINALLY, IT IS ORDERED that the plaintiff’s motion to compel the continued deposition
of Ms. Wilcox; production of deponents Joanne Massopust and Joseph Frankiewicz; and production
of a deponent for the 30(b)(6) deposition is DENIED.

Dated at Milwaukee, Wisconsin this 14th day of August, 2013.

BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

-7-