LYNNE A. SITARSKI, Magistrate Judge.
Presently before the Court are: (1) Plaintiff's Motion to Compel Defendant Vanguard's Response to Discovery (ECF No. 34) and Defendant's opposition thereto (ECF No. 37); (2) Plaintiff's Supplemental Motion to Compel Defendant Vanguard's Response to Discovery (ECF No. 42) and Defendant's opposition thereto (ECF No. 47); and Plaintiff's Motion for Leave to Take Additional Depositions (ECF No. 40) and Defendant's opposition thereto (ECF No. 50).
Because the Court writes for the parties, we set forth only a brief recitation of the facts necessary to decide the instant motions.
This is an employment discrimination case brought by Plaintiff, Francois Lafate, against his employer, the Vanguard Group, Inc. Plaintiff claims that the Defendant discriminated and retaliated against him on account of his race, color, and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. § 951 et seq. In particular, Plaintiff claims that two supervisors, Jennifer Vastardis and Wayne Park, gave him two negative performance appraisals and demoted him from an F-Level to E-Level position in the Participant Services Department because of his race and/or in retaliation for complaining of alleged racist comments. (Compl. ¶¶ 19, 21, 46, 51, 70, 82, 97, 106). Plaintiff also alleges that he was subjected to a hostile work environment based primarily on conduct by three of his coworkers, Mark Loikits, Patrick Fertig, and Doug Lammer. (Compl. ¶¶ 31-35). Plaintiff claims that he complained about his mistreatment to Dena Bailly in the Crew Relations Department, but that Ms. Bailly conducted an insufficient investigation into his complaints. (Compl. ¶¶ 83-89). Plaintiff also alleges in the Complaint that Defendant employs facially neutral policies that have a disparate impact on African-American employees. (Compl. ¶¶ 8, 121).
During discovery, Plaintiff served ninety-seven document requests on Defendant. In response, Defendant provided over 2,000 pages of documents. (Resp. 3, ECF No. 37). However, Defendant objected to approximately twenty-eight requests on the grounds that: they seek materials that are not relevant to his claims; it would be unduly burdensome to the Defendant to produce all documents responsive to these requests; and several of the requests seek private information on non-parties that should be precluded from discovery. The parties have not been able to reach an agreement with respect to these requests.
Accordingly, on June 20, 2014, Plaintiff filed a motion to compel Defendant Vanguard's Response to Plaintiff's Request for Production of Documents Nos. 13, 14, 15, 16, 31, 34, 35, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 75, 76, 92, 93, and 94. (ECF No. 34). Plaintiff subsequently filed a supplemental motion asking for more complete responses to request Nos. 10 and 11. (ECF No. 42). Defendant opposes both motions. (ECF Nos. 37, 47).
On July 15, 2014, Plaintiff also filed a motion pursuant to Rule 30(a)(2) of the Federal Rules of Civil Procedure seeking leave to take several depositions beyond the ten that are permitted by the Federal Rules. (ECF No. 40). Defendant opposes this motion as well. (ECF No. 50).
On July 21, 2013, this matter was referred to me for disposition. (ECF No. 46). That same day, the District Court extended the discovery deadline in this matter. (ECF No. 45).
On August 20, 2014, the parties appeared before me for a hearing on the motions. Following argument, they submitted letters updating the Court as to the status of Plaintiff's document requests. At this time, the following document requests remain in dispute: Nos. 13-15, 34-35, 57-59, which Plaintiff has labeled the "Disparate Impact Requests," and Nos. 16, 46-56, 61, 75-76, and 94, which Plaintiff has labeled the "Deficient Enforcement and Crew Relations Requests."
The Disparate Impact Requests:
(First Request for Production of Documents, ECF No. 34-1). Plaintiff has narrowed these requests, to the time frame of 2007 to the present, and has limited the scope to all leaders below the level of principals and to the Participant Services Department. (Lttr Aug. 22, 2014, at 1).
The Deficient Enforcement and Crew Relations Requests:
(First Request for Production of Documents, ECF No. 34-1). Plaintiff has narrowed these requests to cover the time frame from 2007 to the present, has narrowed the scope to departments supported by Crew Relations, and to all leaders below principal (e.g., senior managers, team leaders, and line managers). (Lttr Aug. 22, 2014, at 2).
"It is well established that the scope and conduct of discovery are within the sound discretion of the trial court." Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). Pursuant to Federal Rule of Civil Procedure 26(b)(1), a party "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). Relevant information sought in discovery need not be admissible at trial, as long as it "appears reasonably calculated to lead to the discovery of admissible evidence." Id. Relevance is generally "construed broadly to encompass any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Funds v. Sanders, 437 U.S. 340, 351 (1978).
Pursuant to Rule 37, a party who has received evasive or incomplete answers to discovery requests may move for an order compelling discovery. See Fed. R. Civ. P. 37(a)(1), (4). The moving party bears the initial burden of showing that the requested discovery is relevant. Morrison v. Phila. Hous. Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001). The burden then shifts to the party opposing discovery to articulate why discovery should be withheld. Id. The party resisting production must demonstrate to the court "that the requested documents either do not come within the broad scope of relevance defined pursuant to Fed. R. Civ. P. 26(b)(1) or else are of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure." Young v. Lukens Steel Co., No. 92-6490, 1004 WL 45156, at *2 (E.D. Pa. Feb. 10, 1994) (quotations and citation omitted).
While generally liberal, permissible discovery is not without limitations. Discovery should not serve as a fishing expedition. Upshaw v. Janssen Research & Development, LLC, No. 11-7574, 2014 WL 1244047, at * 3 (E.D. Pa. Mar. 26, 2014); see also Claude P. Bamberger Int'l v. Rohm & Haas Co., No. 96-1041, 1998 U.S. Dist. LEXIS 11141, at *5-6 (D.N.J. Mar. 31, 1998) ("While the standard of relevancy is a liberal one, it is not so liberal as to allow a party to roam in shadow zones of relevancy and to explore matter which does not appear germane merely on the theory that it might become so.") (quoting In re Fontaine, 402 F.Supp. 1219, 1221 (E.D.N.Y. 1975)).
At the hearing on Plaintiff's motion to compel, both counsel advised the Court that their disagreement as to the relevance of the disputed materials springs from a general disagreement as to the breadth of Plaintiff's case. Defendant argued that Plaintiff's requests for broad, company-wide materials go beyond the scope of this case. According to Defendant, these materials would be relevant only to a so-called "pattern or practice" claim, and an individual plaintiff cannot bring such a claim. In response, Plaintiff explained that, contrary to Defendant's contention, materials relating to Vanguard's systemic discriminatory practices are relevant to his disparate treatment, disparate impact, and hostile work environment claims.
As an initial matter, I note that there seems to be some disagreement and/or confusion regarding the phrase "pattern or practice," and how it applies in employment litigation. The phrase "pattern or practice" discussed in the cases Defendant cites is used in a technical sense to refer to the burden-shifting framework set forth in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), and available to class-action plaintiffs in private actions alleging discrimination, as well as to the government in 42 U.S.C. § 2000e-6 actions.
Furthermore, to the extent it remains unclear, I note that Plaintiff has included in the Complaint a disparate impact theory of the case. While the Court takes no position on the sufficiency of the pleading or the viability of this claim, it is plainly raised in Count I of the Complaint. (Compl. 22-23, ECF No. 1) ("Vanguard, by its conduct toward Lafate and other Black employees, has engaged in a pattern or practice of race, color, and/or national origin discrimination, and Vanguard's facially neutral policies, practices, and customs regarding promotions, discipline and the reporting and investigating of employee complaints of discrimination and harassment has a disparate impact on African-Americans and those individuals with different or perceived national origins in violation of Title VII.").
Having clarified that Plaintiff's case, as set forth in his Complaint, is not limited to solely a disparate treatment claim, the Court nonetheless agrees with Defendant that Plaintiff has not met his burden of demonstrating to the Court how each of his document requests is relevant to his disparate treatment, disparate impact, hostile work environment, and retaliation claims.
To determine whether the materials that Plaintiff seeks are relevant to his claims, we must look to the elements of each individual claim. In order to prove a disparate treatment claim under Title VII, Section 1981, and/or the PHRA,
In order to prove a disparate impact claim, Plaintiff must demonstrate that a specific facially neutral employment practice has a disproportionate impact on members of a protected class. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988).
In order to establish a prima facie case of retaliation, Plaintiff must show that: (1) he engaged in statutorily protected activity; (2) the employer took adverse action against him; and (3) a causal link exists between the protected activity and the employer's adverse action." Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997).
In order to establish a prima facie case of a hostile work environment, Plaintiff must show that: (1) he suffered intentional discrimination because of his membership in a protected class; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected him; (4) the discrimination would have detrimentally affected a reasonable person in the same position; and (5) the existence of respondeat superior liability. See West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995).
As previously noted, Plaintiff bears the burden of demonstrating to the Court that his document requests are relevant to these claims. For the reasons explained below, I find that he has failed to carry this burden.
Plaintiff maintains that request Nos. 13-15, 34-35, and 57-59 seek information directly related to his claims regarding Defendant's policies and practices that disparately impact African-Americans. In his recent letter to the Court, Plaintiff explained that these requests "seek information directly related to [his] claims regarding the disparate impact of Defendant's policies and practices and the racially hostile work environment in operation in Mr. Lafate's department (e.g. its `forced rankings' and process of `managing out' employees who are declared not to be a `good fit' and the numerous instances in which racial minorities were denied opportunities, which Vanguard often uses minority managers like Mr. Lafate to implement." (Lttr Aug. 22, 2014, at 1-2)). Plaintiff made similar statements in the underlying motion to compel, but did not elaborate how the requested materials specifically support his claims.
These broad statements are insufficient to demonstrate to the Court that the requested materials are relevant to Plaintiff's disparate impact claims. See Morrison, 203 F.R.D. at 196 (explaining that moving party bears the initial burden of showing that the requested discovery is relevant). As noted above, in order to prove a disparate impact claim, Plaintiff must demonstrate that a facially neutral policy or practice at Vanguard has a disproportionate impact on African-Americans. See Watson, 487 U.S. at 994. To do so, he must identify "certain practices that are `facially neutral in their treatment of different groups' but `in fact fall more harshly on one group than another.'" Byrd v. City of Philadelphia, No. 12-4520, 2013 WL 5728669, at *3 (E.D. Pa. Oct. 22, 2013) (quoting Teamsters, 431 U.S. at 335-336). However, neither of the two practices that Plaintiff identifies — i.e., "forced rankings" and "managing out" minorities — seem to fit into this standard. Plaintiff does not explain what he means by "forced rankings," and the practice of "managing out" minorities that he describes does not appear to be a "facially neutral" practice. Based on the record before the Court, it is not clear whether "forced rankings" and/or "managing out" are actual policies or practices at Vanguard. Based on the record before the Court, we cannot conclude that these concepts are the type of facially-neutral practices (if they are, indeed, actual policies or practices of Vanguard) that might form the basis of a disparate impact claim. For this reason, Plaintiff has not met his burden of demonstrating how the "Disparate Impact" document requests, discussed more fully below, are relevant to his disparate impact theory.
First, Plaintiff has not adequately explained how documents relating to Defendant's diversity programs, and statistical data and focus group results relating to the progress of such programs (Nos. 13 and 14), will support the elements of a disparate impact claim.
Plaintiff has likewise failed to meet his burden of demonstrating how the Deficient Enforcement and Crew Relations requests — which primarily seek information on discrimination complaints filed by other employees — are relevant to his particular claims. Plaintiff contends that "these requests seek information directly related to [his] claims regarding Defendant's retaliatory and discriminatory behavior, including Vanguard's inadequate enforcement of its policies and its systemic use of its human resources department to justify the actions of discriminators and silence or terminate their victims." (Lttr Aug. 22, 2014, 2).
First, to the extent that Plaintiff contends that these materials are relevant to his disparate impact claim, he does not explain how the details of complaints made by other African-Americans against other Vanguard employees (Nos. 16, 46-56, 61, 94) will help him demonstrate that the facially neutral policies he has identified (its `forced rankings' and process of `managing out' employees who are declared not to be a `good fit') have a disproportionate impact on African-Americans. Nor does he explain how materials relating to all complaints about Crew Relations' investigations (No. 76) fit into his particular case. The Complaint does contain an allegation that Defendant "has a facially neutral internal complaint mechanism" through which "Crew Relations simply attempts to placate employees who complain of discrimination, while helping known discriminators justify their discriminatory conduct and re-frame it under facially neutral policies" (Compl. ¶ 14, ECF No. 1), but Plaintiff has not explained how the materials he seeks support a claim that this policy has a disproportionate impact on African-Americans.
Significantly, to the extent that Plaintiff contends that these materials are relevant to his disparate treatment, hostile work environment, and retaliation claims, it appears that Defendant has already produced non-privileged documents relating to complaints of race discrimination filed by other African-American employees in which the alleged wrongdoers in the Complaint (Jennifer Vastardis, Wayne Park, Mark Loikits, Patrick Fertig, and Doug Lammer) are also the alleged wrongdoers. The Court agrees with Defendant that these materials are sufficiently responsive to request Nos. 16, 46-47, 48, 49, 53, 54, 55, 56, 61, 75, and 94. See Getz v. Commonwealth of Pa. Blindness and Visual Services, No. 97-7541, 1998 WL 961901 (E.D. Pa. Dec. 18, 1998) ("Discovery in disparate treatment cases has been limited to employees within certain work units and who have suffered similar treatment as the plaintiff."); Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49, 56 (D.N.J. 1985) (noting that courts ruling on discovery motions in disparate treatment cases have limited discovery to the work unit of the plaintiff, the job category to which plaintiff belongs, the type of action by which plaintiff was aggrieved (e.g., hiring, promotion, discharge, etc.), and the type of discrimination alleged (e.g., race, age or sex)). With respect to request No. 92, which seeks all skip level forms for Line Managers and Team Leaders in the Participant Services Department in both Pennsylvania and Arizona from 2007 to the present, it is unclear to the Court how these documents would support Plaintiff's discrimination case, as the request is not limited to materials concerning Plaintiff himself, the identified wrongdoers, or any alleged comparators. Defendant produced the documents reflecting skip level feedback for Plaintiff from January 1, 2009 to the present.
Next, Plaintiff argues that "[t]his information will also provide Plaintiff with information regarding what Vanguard knew or should have known about the discrimination that Plaintiff was facing and information to respond directly to Defendant's defense regarding Plaintiff's refusal to identify other employees whom he knew or would be subject to retaliation by Crew Relations and senior management." (Lttr Aug. 22, 2014, 2). While Defendant contends that it has already produced all documents relating to Plaintiff's internal discrimination complaint and its investigation into that complaint, Plaintiff claims that Defendant refuses to provide certain relevant documents on the basis of privilege. (Lttr Aug. 22, 2014, 2-3). In response, Defendant correctly notes that the issues regarding privilege have not been raised in Plaintiff's motions and have not yet been briefed, and therefore are not properly before the Court. (Lttr Aug. 22, 2014, at 4). For this reason, the Court will not address the issue of privilege at this time.
Finally, the Court notes that Defendant has demonstrated that the burden associated with producing company-wide discovery of internal complaints would be significant. Defendant submitted the deposition testimony Dena Bailly, a Vanguard Crew Relations Specialist, who stated that there is no way to search the Crew Relations database for complaints of race discrimination other then manually reviewing all records in that database. (Resp. Exh. G, ECF No. 37-7). Without further explanation from the Plaintiff as to how complaints of race discrimination involving individuals that have nothing to do with this lawsuit are relevant to Plaintiff's claims, the Court will not impose on Defendant the burden of such broad discovery. See Fed. R. Civ. P. 26(b)(2)(C)(iii) (providing that the court must limit "discovery otherwise allowed by these rules or by local rule if it determines that . . . the burden or expense of the proposed discovery outweighs its likely benefit").
In its brief in opposition to Plaintiff's motion, Defendant asks the Court to award Defendant its fees and costs incurred in opposing the motion. See Fed. R. Civ. P. 37(a)(5)(B) (providing that, if the Court denies a party's motion to compel, it "must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party [] who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees . . . . [unless] the motion was substantially justified or other circumstances make an award of expenses unjust"). Given that, as discussed above, the parties had a genuine dispute as to the scope of discovery in this case, the motion is denied.
Plaintiff has already taken or scheduled ten depositions as permitted by Rule 30(a)(2)(A) of the Federal Rules of Civil Procedure. Plaintiff now moves the Court for leave to take five additional depositions. First, Plaintiff seeks permission to depose Yasmeen Toney. Plaintiff explains that Ms. Toney serves as his current skip-level supervisor, and that, through the deposition of Robert Grossi on July 14, 2014, he learned that Ms. Toney may have information related to the continued retaliatory treatment to which Plaintiff was subjected under Mr. Grossi. Next, Plaintiff seeks permission to depose Barry Buckhart, who, according to Plaintiff, was present at a meeting in which another man referred to Plaintiff as a "n____." Lastly, Plaintiff seeks permission to depose William Matysik, Jeffrey Lampinksi and Michael Sabin, who, according to Plaintiff, were involved in the second investigation into his internal complaints. Defendant opposes all five depositions on the grounds that Plaintiff has not been diligent in seeking these depositions, they would be duplicative, and the cost of the duplicative depositions outweighs their likely benefit given the nature of this case.
Rule 30(a)(2)(A)(i) of the Federal Rules of Civil Procedure sets forth a limit of ten depositions that a party may take without leave of court. To exceed this limit, a party must demonstrate that the Rule 26(b)(2) factors weigh in favor of permitting additional depositions. Donastorg v. FirstBank de Puerto Rico, No. 2003-117, 2007 WL 3124785, at *3 (D.V.I. Oct. 15, 2007).
The Court will grant Plaintiff permission to depose Ms. Toney because Plaintiff demonstrated at the August 20, 2014 hearing that she may have information related to Plaintiff's retaliatory treatment that is relevant to his case.
The Court will deny Plaintiff's request to depose the other four witnesses because the information he seeks from them is duplicative of other discovery and the burden/expense of these depositions outweighs their likely benefit. See Fed. R. Civ. P. 26(b)(2)(C)(I) and (iii).
Defendant's Request for fees is denied. See Fed. R. Civ. P. 37(a)(5)(B).
On July 15, 2014, Plaintiff filed a "supplemental motion" arguing that, in addition to failing to submit materials responsive to the document requests identified in its original motion, Defendant had also failed to submit certain materials responsive to other document requests. (ECF No. 42). At the August 20, 2014 hearing on Plaintiff's motions, the Court instructed the parties to update the Court as to the current status of the various discovery disputes. Both parties did so by letters dated August 22, 2014 and August 25, 2014. These letters do not include any discussion of the document requests at issue in Plaintiff's supplemental motion. Therefore, the Court will assume that the parties have resolved them and will, accordingly, deny this motion as moot.
For the reasons set forth above, Plaintiff's Motion to Compel will be DENIED; Plaintiff's Supplemental Motion to Compel will be DENIED AS MOOT; and Plaintiff's Motion for Leave to Take Additional Depositions will be GRANTED IN PART and DENIED IN PART.
An appropriate order follows.
