United States District Court, E.D. Pennsylvania
February 5, 2004.
KAREN LEE GAUL
ZEP MANUFACTURING COMPANY, et al
The opinion of the court was delivered by: HERBERT HUTTON, District Judge
MEMORANDUM AND ORDER
Presently before the Court are Plaintiff's Motion to Compel
Defendants' Full and Complete Responses to Plaintiff's First Set of
Interrogatories and Request for Production and for Removal of the
Confidential Designation on Certain Documents Identified by Defendant as
Confidential (Docket No. 15), Defendant Acuity Specialty Products Group,
Inc. d/b/a Zep Manufacturing, Inc.'s response (Docket No. 19),
Plaintiff's reply (Docket No. 20), and Plaintiff's sur-reply thereto
(Docket No. 32).
This is an employment discrimination suit brought under Title VII of
the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et
seq., the Equal Pay Act ("EPA"), 29 U.S.C. § 206 et
seq., and the Pennsylvania Human Relations Act ("PHRA"),
43 Pa. Cons. Stat. Ann. § 951 et seg., alleging gender
discrimination and retaliation. Specifically, Plaintiff alleges that (1)
she was wrongfully denied a promotion to District Sales Manager ("DSM")
of the mid-Atlantic division in mid-1999; (2) she was demoted from the
position of Branch Sales Manager ("BSM") to Field Sales Manager
("FSM") in August of 2001 because of her gender; and (3) Defendant
retaliated against her for filing a complaint with the Pennsylvania Human
Rights Commission by setting unrealistic sales goals, by failing to give
her business leads at a comparable rate to what male employees were
receiving, and by reducing her compensation. On January 30, 2004, this
Court dismissed Plaintiff's failure to promote claim as time-barred under
Title VII and the PHRA. The Court also determined that Plaintiff had
failed to make a prima facie case of an EPA violation under her failure
to promote claim. Plaintiff now moves to compel answers to certain
interrogatories and document requests.
II. LEGAL STANDARD
"It is well-established that the scope and conduct of discovery are
within the sound discretion of the trial court." Marroquin-Manriques
v. Immigration and Naturalization Serv., 699 F.2d 129, 134 (3d Cir.
1983). The Federal Rules of Civil Procedure permit discovery of "any
matter, not privileged, that is relevant to the claim or defense of any
party." Fed.R.Civ.P. 26(b)(1). Discovery is not limited solely to
admissible evidence but encompasses matters which "appear reasonably
caculated to lead to the discovery of admissible evidence." See
id; Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340
(1978). "Relevance is construed broadly and determined in relation to the
facts and circumstances of each case." Hall v. Harlevsville Ins.
Co., 164 F.R.D. 406, 407
(E.D. Pa. 1996). Once the party from whom discovery is sought
raises an objection, the party seeking discovery must demonstrate the
relevancy of the information requested. Vitale v. McAtee,
170 F.R.D. 404, 406 (E.D. Pa. 1997). At that point, the burden shifts back to
the objecting party to show why discovery should not be permitted.
In this motion, Plaintiff seeks information related to the Branch Sales
Manager, District Sales Manager, and Regional Sales Manager positions,
including personnel files, performance evaluations, salary information,
and company-wide sales information broken down by branch. Plaintiff also
seeks documents related to her job performance and responsibilities,
documents regarding claims or complaints of gender discrimination against
Defendant, and information regarding sales representatives and their
expected sales goals.
Defendant objects to many of these requests as overly broad. Defendant
has limited the temporal scope of its production to the period from June
1, 1998 to the present. Defendant also asserts that Plaintiff is not
entitled to nationwide discovery and has limited the geographical scope
of its production to the Philadelphia branch and the Washington branch,
which are the branches headed by Ethan Powers. Moreover, Defendant
objects to the production of all documents related to the Regional Sales
Managers and District Sales Managers, arguing that they are
irrelevant to Plaintiff's claims. In particular, Defendant argues
that because Plaintiff's failure to promote claim is time-barred,
Plaintiff is not entitled to any information related to the District
Sales Manager position.
A. Scope of Discovery
Because much of the discovery dispute may be resolved by determining
the proper scope of discovery, the Court addresses this issue first.
1. Temporal Scope
Defendant has suggested that the temporal scope of discovery should be
for the time period from June 1, 1998 to the present and has not produced
documents outside of that scope. Plaintiff responds that she has no issue
with the time limitation for most of the discovery requests and in fact,
most of her requests have been limited to the past five years.
"It is well established that discovery of conduct predating the
liability period of a Title VII lawsuit is relevant and courts have
commonly extended the scope of discovery to a reasonable number of years
prior to the liability period of a Title VII lawsuit." Miller v.
Hygrade Food Prods. Corp., 89 F. Supp.2d 643, 657 (E.D. Pa. 2000)
(discovery limited to five years before filing of EEOC charge);
Steven v. General Electric Co., No. 1-77-122, 1978 WL 150, at
*1 (S.D. Ohio Oct. 4, 1978) (noting emergence of a "five year rule");
Milner v. Nat'l Sch. of Health Tech., 73 F.R.D. 628, 632 (E.D.
Pa. 1977) (approximately five years before alleged
violation). In this case, Plaintiff filed her EEOC charge in 2001.
Thus, the Court finds that Plaintiff's request for documents for the past
five years, dating back to June 1, 1998, to be a more than reasonable
temporal scope for discovery.
Plaintiff also asserts that a more expansive time frame for Request
Nos. 3, 4, and 8 is warranted. These documents are related to Plaintiff's
performance and job description for the duration of her employment with
Defendant, beginning in August 22, 1994. As Defendants have not made any
objections to Plaintiff's requests, the Court grants Plaintiff's requests
as to these documents.
2. Geographical Scope
Defendant argues that Plaintiff is not entitled to nationwide
discovery. As such, Defendant has limited the geographical scope of
discovery to two of the branches supervised by Ethan Powers, the District
Sales Manager of the mid-Atlantic division.*fn1 Specifically, Defendant
has limited discovery to the Washington D.C. branch and the Philadelphia
In a Title VII case, "the needs of the individual plaintiff to
information controlled by the . . . employer requires that the parameters
of discovery be broader than the specific individual facts upon which the
claim is based." Clarke v. Mellon Bank, No. 92-4823, 1993 WL 170950, at
*2 (E.D. Pa. May 11, 1993); Miller,
89 F. Supp.2d at 657. The major consideration for the Court is to
balance the relevance of the information against the burden on the
defendant. See Miller, 89 F. Supp.2d at 657. To restrict the
geographical scope of discovery, defendant "must introduce facts
supporting its contention of undue burden or demonstrate that decisions
affecting the plaintiff were made at a facility level rather than on a
centralized basis." Syed v. Director, No. 90-1801, 1990 WL
259734, at *5 (E.D. Pa. Jan. 30, 1991) (citing Marshall v.
Westinqhouse Electric Corp., 576 F.2d 588 (5th Cir. 1978);
Hinton v. Entex, Inc., 93 F.R.D. 336 (E.D. Tex. 1981)).
In this case, limiting discovery to just two of the branches supervised
by Ethan Powers, as Defendant suggests, would be too narrow. Defendant
has represented that the Division Sales Manager and the Division Manager
for the entire Northeast Division were also engaged in discussions with
Powers regarding Plaintiff's demotion in 2001. On the other hand,
requiring Defendant to produce company-wide information, as Plaintiff
suggests, would be unduly burdensome on Defendant. Thus, after weighing
the relevance of the information sought against the burden imposed on
Defendant, the Court finds that the geographic scope of discovery shall
encompass the entire mid-Atlantic and the Northeast Divisions.
Accordingly, Defendant shall supplement its discovery responses to
include information from all branches in the mid-Atlantic and Northeast
B. Relevant Job Positions
Plaintiff seeks information about the Branch Sales Manager, District
Sales Manager, and Regional Sales Manager positions.
1. Regional Sales Manager
Defendant first contends that Regional Sales Manager information is not
relevant to Plaintiff's claims because Plaintiff never served as, applied
for, or was considered for that position.
In a Title VII case in which the plaintiff alleging disparate treatment
seeks to obtain discovery regarding other employees, "positions that are
relevant for discovery purposes are the positions that the plaintiff
occupied or requested promotions into." Hicks v. Arthur,
159 F.R.D. 468, 471 (E.D. Pa. 1995). In this case, Plaintiff has held the
positions of Branch Sales Manager and Field Sales Manager and Sales
Representative during her employment with Defendant. Plaintiff has also
applied for the position of District Sales Manager. However, Plaintiff
has never applied for nor worked as a Regional Sales Manager. Since
positions relevant for discovery are those that "plaintiff occupied or
requested," the Court concludes that Plaintiff is not entitled to
discovery information about Regional Sales Managers. Accordingly,
Plaintiff's Request Nos. 7, 10, and 29 are denied. To the extent
Plaintiff's Request Nos. 40 and 41 and Interrogatory Nos. 2 and 3 seek
information about Regional Sales Managers, those requests are also
2. District Sales Manager
Defendant also contends that, because Plaintiff's failure to promote
claim is time-barred, she is not entitled to discover any information
related to the District Sales Manager position. However, "plaintiff may
still present evidence of discriminatory acts outside of the filing
period if admissible under the Federal Rules of Evidence." Kovoor v.
Sch. Dist. of Phila., 211 F. Supp.2d 614, 622 n.7 (E.D. Pa. 2002);
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002) (stating that an employee is not barred from using prior acts as
background evidence in support of a timely claim). Therefore, Plaintiff
is entitled to discover information concerning the District Sales Manager
position. To the extent Defendant has withheld information about the DSM
position, Defendant is now ordered to produce it to Plaintiff according
to the geographical and temporal limits of discovery set forth in this
Memorandum. Specifically, Defendant is to produce Plaintiff's Request
Nos. 6, 11, 28, 33, and 34. To the extent Plaintiff's Request Nos. 40 and
41 and Interrogatory Nos. 2 and 3 seek information about District Sales
Managers, those requests are granted.
3. Branch Sales Manager
Plaintiff's request for information related to the Branch Sales Manager
position is clearly relevant to her case. Thus, Plaintiff's Requests Nos.
5, 9, 27, 30, 31, and 32 is granted
subject to the geographical and temporal limits of discovery.*fn2
To the extent Plaintiff's Requests Nos. 40 and 41 and Interrogatory Nos.
2 and 3 seek information about Branch Sales Managers, those requests are
C. Other Discovery Requests
1. Personnel Files
In Request Nos. 17-26, Plaintiff seeks the entire personnel files of
the following individuals: William Aimis, Stuart Chaires, Richard Reisig,
Ethan Powers, John Richter, Martin Guiffre, Ira Grossman, Mark Scrivo,
Gene Weeks, and Jim Mayer. Although Plaintiff is not entirely clear, it
appears that all of these individuals, except for Powers, held the
position of Branch Sales Managers with Defendant. With the exception of
William Aimis, Plaintiff represents that she will accept the following
documents from the personnel files: qualifications, performance reviews,
compensation records, disciplinary complaints and actions taken as a
result thereof. See Pl.'s Mot. to Compel ¶ 13 (Docket No.
15). For William Aimis, Plaintiff contends that she is entitled to the
entire personnel file because Aimis replaced Plaintiff as Branch Sales
Manager. Defendant represents that the entire personnel files of Ethan
Powers, William Aimis, and Stuart Chaires have already been made
available for review to Plaintiff's counsel. See Def.'s Resp.
to Pl.'s Mot. to Compel at 9 (Docket No. 19). Defendant objected to
the other requests on the grounds that its geographical scope was overly
The geographical scope of discovery now encompasses the entire
mid-Atlantic and Northeast divisions. Thus, to the extent Request Nos.
18-19, 20-26 refer to Branch Sales Managers in those regions, Defendant
shall produce the documents requested by Plaintiff. For William Aimis
(Request No. 17) and Ethan Powers (Requests No. 20), Defendant shall
produce the entire personnel files to Plaintiff.
2. Complaints against Defendant
Interrogatory No. 8 and Request No. 38 seek information regarding
complaints or claims of sexual discrimination made against Defendant.
Defendant objects to these requests as overly broad and as designed to
seek confidential privileged information.
"Obtaining information of incidents of the same type is uniquely
important in discrimination claims." Laurenzano v. Lehiqh Valley
Hosp., Inc., No. 00-2621, 2001 WL 849713, at *1 (E.D. Pa. July 18,
2001). Courts have given a wide berth to such requests since "the nature
of the proofs required to demonstrate unlawful discrimination may often
be indirect or circumstantial." Miles v. Boeing Co.,
154 F.R.D. 117, 119 (E.D. Pa. 1994). Thus, the Court finds that information
regarding complaints of the same type at issue in this litigation is
relevant and not overly broad. Defendant is directed to supplement its
response to include claims or complaints of gender discrimination against
Defendant for the
mid-Atlantic and Northeast divisions since June 1, 1998.
3. Sales Representatives and Sales Figures
Request No. 51 seeks documents showing the number of new sales
representatives hired by Defendant for the past five years. Request No.
56 seeks documents showing the expected sales figures for first and
second year sales representatives for each fiscal year for the past five
years. Defendant has limited its response to the Philadelphia and
Washington, D.C. branches. As the scope of discovery now encompasses the
entire mid-Atlantic division and the Northeast division, Defendant shall
supplement its response to include numbers for those areas as well.
To summarize, the Court finds that the relevant geographical scope for
discovery to be the mid-Atlantic division and the Northeast division.
Except where specified, the temporal scope of discovery is limited to the
period from June 1, 1998 to the present. Further, Plaintiff is entitled
to discover information about the District Sales Manager, the Branch
Sales Manager, and the Sales Representative position. Plaintiff is not
entitled to discover information about the Regional Sales Manager
position. Defendant shall supplement its discovery responses in
accordance with these guidelines.
An appropriate Order follows.