United States District Court, E.D. Pennsylvania
April 22, 2004.
GENESIS HEALTH VENTURES, INC
The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge
MEMORANDUM & ORDER
Presently before the Court are Plaintiff's Motion to Overrule
Defendant's Objections to her Fourth Request for Production of Documents,
(Doc. No. 22), and Plaintiff's Motion to Compel Attendance at Oral
Deposition, (Doc. No. 24). For the following reasons, Plaintiff's Fourth
Request for Production of Documents will be granted in part and denied in
part, and Plaintiff's Motion to Compel will be granted.
Plaintiff, Jill Waters, is a fifty-nine year old, Caucasian female, who
was employed by Defendant, Genesis Health Ventures's nursing facility,
Crestview North, Inc. ("Crestview"), for ten years, until she was
terminated on September 23, 2002. (Jt. Case Report at 2, 5.) During five
of her ten years at Crestview, Plaintiff was employed as Director of
Staff Development. In June 2002, Defendant hired Marvin Kirkland, a
fifty-seven year old, African American male, as Director of Nursing.
(First Am. Civil Act. Compl. at ¶ 13; Doc. No. 27.) Plaintiff's
position came under Kirkland's supervision. The factors motivating
Plaintiffs termination are in dispute. Defendant claims Plaintiff was
dismissed for performance related reasons, while Plaintiff alleges her
termination was due to Kirkland's discriminatory animus.
As originally filed, Plaintiff's Complaint alleged violations of the
Age Discrimination in Employment Act ("ADEA"), the Americans with
Disabilities Act ("ADA"), and the Pennsylvania Human Relations Act
("PHRA"). Plaintiff's original Complaint also alleged age discrimination
under 42 U.S.C. § 1981a. This count was subsequently amended to
allege discrimination based on disability, rather than age. (First Am.
Civil Action Compl. at ¶¶ 42-45; Doc. No. 27.) Plaintiff's amendments
also included the addition of a fifth count, for race discrimination
under § 1981a. (Id. at ¶¶ 48-59.)
II. LEGAL STANDARD
"It is well-established that the scope and conduct of discovery are
within the sound discretion of the trial court." Gaul v. Zep Mfg.
Co., Civ.A. No. 03-2439, 2004 U.S. Dist. LEXIS 1990, at *2-3 (E.D.
Pa. Feb. 5, 2004) (quoting Marroquin-Manriquez v. Immigration and
Naturalization Serv., 699 F.2d 129, 134 (3d Cir. 1983)). Pursuant to
Federal Rule of Civil Procedure 26(b)(1), a party may seek discovery of
"any matter, not privileged, which is relevant to the subject matter in
the pending action." FED. R. CIV. P. 26(b)(1). "The information sought
need not be admissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence."
Rule 37 "authorizes a party who has received evasive or incomplete
answers to discovery authorized by . . . Rule 26(a) to bring a motion to
compel disclosure of the materials sought." Northern v. City of
Phila., Civ.A. No. 98-6517, 2000 U.S. Dist. LEXIS 4278, at *3 (E.D.
Pa. Apr. 4, 2000). Once a party opposes a discovery request, the party
seeking the discovery must demonstrate the relevancy of the information
sought. Id. at *5. "When this showing of relevancy is made, the
burden then shifts back to the party opposing discovery to show why the
discovery should not be permitted." Id. A party's statement
"that the discovery sought is overly broad, burdensome, oppressive, vague
or irrelevant is `not adequate to voice a successful objection.'"
Id. (quoting Josephs v. Harris Corp., 677 F.2d 985,
992 (3d Cir. 1982)). Further, "[i]t is well recognized that the federal
rules allow broad and liberal discovery", Pacitti v. Macy's,
193 F.3d 766, 777 (3d Cir. 1999), and relevancy is broadly construed,
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)
("The court should and ordinarily does interpret `relevant' very broadly
to mean matter that is relevant to anything that is or may become an
issue in the litigation.").
A. Production of Documents
On or about February 16, 2004, Plaintiff made five requests for
documents from Defendant.*fn1 The requests related to Plaintiff's claim
of racial discrimination. On March 18, 2004, Defendant objected to all five requests, primarily on the
grounds that the requests were "overly broad and unduly burdensome and
not reasonably calculated to lead to the discovery of admissible
evidence." (Def.'s Answers and Objections to Pl's Fourth Req. for Prod.
of Docs. at 1.)*fn2
Document Request Numbers One and Four
We note from the outset that Request Number One is duplicative of
Request Number Four, in that they seek the same information. Request
Number One seeks documents that in any way reference those employees whom
"Kirkland hired and discharged during his tenure with Defendants."
(Id.) In Document Request Number Four, Plaintiff seeks
documents that in any way reference "the racial, ethnic or ancestral
background of any and all employees that were hired and terminated by
Marvin Kirkland." (Id. at 2.) However, Plaintiff also makes
clear that she is not interested in the identity of those individuals.
(Proposed Order attached to Pl's Mot. to Overrule Def.'s Objections to
her Fourth Req. for Prod. of Docs. at unnumbered 2 ("Personal and identifying information such as employee names, addresses, and
social security numbers may be redacted. . . .").) That being true, it is
unclear how Requests One and Four differ, as they appear to be seeking
the same information the race and/or ethnicity of those employees
whom Kirkland hired and terminated. Accordingly, we will dismiss Request
Number One, and address Request Number Four.
In Defendant's Memorandum in Opposition to the Document Requests,
Defendant draws a distinction between Plaintiff and some of the other
employees who have been hired and/or terminated by Kirkland. Defendant
states: "[I]nformation concerning hiring of certified nurses aides and
nurse assistants who had no certification . . . is immaterial and
irrelevant to this matter" because Plaintiff was not in a comparable
hiring category. We disagree. While it is undisputed 2that Plaintiff was
in a hiring category apart from the Certified Nurse's Assistants
("CNAs"), a group for which there is statistical information available,
this distinction does not foreclose the possibility that Plaintiffs use
of the requested information could lead to admissible evidence as this
case moves forward. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 804-05 (1973) (stating that statistics as to employer's
"employment policy and practice may be helpful" in establishing
Defendant attempts to distinguish the instant case from McDonnell
Douglas, and many of the other cases that Plaintiff uses to support
her requests, by characterizing the instant lawsuit as a discriminatory termination case only. In doing so, Defendant
emphasizes that the instant lawsuit alleges racial discrimination related
to Plaintiff's termination, and as such, information related to
Defendant's hiring practices are irrelevant. However, Plaintiffs
Complaint also alleges claims related to Defendant's hiring practices.
Specifically, Plaintiff claims that "Kirkland only hired African American
employees" and that "Plaintiff and other Caucasian employees were
pretextually terminated because Kirkland wanted to replace them with
African American employees." (First Am. Civil Act. Compl. at ¶¶ 52,
58.) Plaintiff further alleges that "Defendant acknowledged, supported,
and consented to Kirkland's disparate racial treatment and racial hiring
preferences of employees and prospective employees." (Id. at
¶ 57.) Accordingly, we cannot agree that Plaintiff's request for
documents is overly broad because it includes a request for hiring data.
As to Defendant's claim that Plaintiff's request is unduly burdensome,
Plaintiff claims, and Defendant does not disagree, that Defendant's
counsel stated that "she had a list of CNAs Mr. Kirkland had hired and
their races (most of [Kirkland's] hires were reportedly CNAs) and agreed
to show it to Plaintiff's counsel but refused to allow Plaintiff's
counsel to copy it." Based on this claim, it would seem that the request
would not be burdensome at all, as Defendant has already compiled the
information as to the CNAs.
Document Request Number Two
Document Request Number Two seeks documents that reference "the racial,
ethnic, or ancestral background of all employees that work at . . .
Crestview" and any documents that indicate the same for "all employees
under the control of Marvin Kirkland." (Def.'s Answer and Objections to
Pl.'s Fourth Req. for Prod, of Docs, at 1.) In response to this request,
Defendant states that it "has already provided Plaintiff with its [Equal
Employment Opportunity Commission] EEOC records that show the racial
composition of its workforce." (Def. Genesis Health Ventures,
Inc.'s Opp'n to Pl's Mot. to Overrule Def.'s Objections to her Fourth
Req. for Prod. of Docs, at 4 (emphasis added).) Defendant further
explains that it does not maintain records that would provide a breakdown
of this information for Crestview, apart from its other facilities.
Defendant represents the same is true for those employees who are
specifically under Kirkland's control. (Mem. of Law in Supp. of Def,
Genesis Health Ventures, Inc.'s Opp'n to Pl.'s Mot. to Overrule Def.'s
Objections to her Fourth Req. for Prod. of Docs. at 8 ("Genesis does not
keep statistical evidence of the racial composition or background of all
employees at Crestview and all employees under the control of
Marvin Kirkland in the ordinary course of business." (emphasis in
original)).) In support of its claim, Defendant cites Ingram v.
Ponder, Civ.A. No. 97-8060, 1999 U.S. Dist. LEXIS 1725, at *8-9
(E.D. Pa. Feb. 19, 1999). The district court in Ingram stated
that "[a] defendant in a civil action cannot be compelled to create, upon
the request of the plaintiff, documentary evidence which is not already
in existence in some form." Id. at *9. However in Ingram, the
defendant did not possess "lists of the names and addresses of employees
discharged for job abandonment or poor performance," which was precisely
what the Ingram plaintiff was seeking. Id. at *8. In
the instant case, it is unclear from Defendant's statements whether it is
alleging that, at this time, there is no previously compiled
list that would specifically provide the information Plaintiff
seeks, or whether this information simply does not exist in any form. If
the information exists in an alternative format, Defendant could be
required to make it available to Plaintiff. At this point, we will
require that Defendant clarify its statement. If this information does
not exist in any form, Defendant should so state. If it does exist in an alternative format, Defendant should so state
and we will determine whether or not it is discoverable.
Document Request Number 3
Defendant responds to Document Request Number Three by stating that
Kirkland resigned from his position at Crestview and was "neither
terminated nor discharged." (Def.'s Answers and Objections to Pl's Fourth
Req. for Prod. of Docs. at 2.) As a result, Defendant represents that
"Answering Defendant has no documents responsive to this request."
(Id.) As the facts surrounding Kirkland's departure from
Crestview are in dispute, we will direct Defendant to provide Plaintiff
with all documents related to Kirkland's departure. If no such documents
exist, Defendant should so state.
Document Request Number Five
Request Number Five seeks "applications of all applicants for
employment for any position at Defendant's Crestview facility during the
tenure of Marvin Kirkland and the preceding six (6) months." (Def.'s
Answers and Objections to Pl's Fourth Req. for Prod. of Docs. at 2.) In
responding to this request, Defendant again states that the requested
documents are irrelevant because Plaintiff's lawsuit is a discriminatory
termination case, not a discriminatory hiring case, and therefore the
majority of applicants are not similarly situated to Plaintiff's hiring
pool. As discussed above, because Plaintiff's Complaint alleges an
overall system of discriminatory hiring and terminating, we
conclude that the request could reasonably lead to the discovery of
Defendant also states that "the vast majority of the applicants
currently on file constituted people seeking employment in the position
of . . . [CNA] or Aide-Non Certified Nurse." (Def.'s Answers and Objections to Pl's Fourth Req. for Prod, of Docs, at
3.) As to the applications of non-CNAs, who would be in Plaintiffs hiring
pool, Defendant states that "after reasonable investigation, records
regarding applicants for more highly skilled nurse opening[s] (LPNs, RNs
and RN Nurse Supervisors) are no longer retained at Crestview Center." It
is unclear from this statement whether Defendant might have this
information at one of its other facilities. To the extent that Defendant
no longer possesses these records, or other documents that might reveal
the same information, at Crestview or elsewhere, Defendant should so
state. If, on the other hand, Defendant's statement is intended to
distinguish between documents held at Crestview and those documents held
at Defendant's other facilities, we conclude that such a distinction is
irrelevant, and we will direct Defendant to provide Plaintiff with the
B. Attendance at Oral Deposition
On March 9, 2004, Plaintiff's counsel served Defendant's counsel with a
Notice of Oral Deposition, scheduling the deposition of Scott Burk,
Regional Human Resource Manager for Defendant. Defendant has objected to
this request on a number of grounds. For the following reasons, we will
permit Plaintiff to proceed with the Burk deposition.
Count Five of Plaintiff's Complaint alleges that Defendant, acting
through Kirkland, its Director of Nursing, engaged in a system of
racially discriminatory hiring and terminating of employees. Plaintiff, a
Caucasian woman, claims that Kirkland, an African American man, refused to hire Caucasian applicants, and that Kirkland terminated
Plaintiff because she is Caucasian. (First Am. Civil Action Compl. at
¶¶ 49-59.) In support of its allegation that Plaintiff was harmed by
this system of discriminatory hiring and firing, Plaintiff submits the
affidavit of Robert Creely.*fn5 Creely, a Caucasian male, had previously
worked for Defendant and subsequently left this employment. Sometime
thereafter, Creely reapplied for a position with Defendant and was
allegedly told, by Kirkland, that he had been placed on a "do not hire"
list. Plaintiff further alleges that after eight months of investigating
this claim, Burk contacted Creely and informed him that Creely was not on
such a list and that he was free to apply for employment at any of
Defendant's facilities. (Creely Aff.; Doc. No. 26, Ex. C.)
Defendant objects to Plaintiff's request to depose Burk on several
grounds. "First and foremost, Defendant objects to the deposition of
Scott Burk in this proceeding because Mr. Burk had no involvement with
Plaintiff's termination and therefore has no relevant information to
provide." (Def.'s Mem. of Law in Supp. of Its Opp'n to Pl's Mot. to
Compel Scott Burk's Attendance at Oral Dep. [hereinafter Def.'s Mem. in
Opp'n] at 1.) Defendant further states that Plaintiff's claim that
Defendant "maintained a `data base' of names of employees who were not
subject to hire, has no bearing on the decision to discharge this
Plaintiff for employment deficiencies." (Id. at 2.) Even
assuming that Defendant is correct in its assertion that Burk was not
involved in Defendant's decision to terminate Plaintiff's employment, we
cannot agree that Burk's deposition will not lead to admissible evidence.
This is particularly true because Plaintiff's Complaint alleges a system
of discriminatory practices, and is not limited to Plaintiff's termination. In light of Burk's position as Regional Human Resource
Manager, and in light of the federal rules' goal of permitting liberal
discovery, we cannot, at this stage in the litigation, conclude that
Burk's deposition would be irrelevant.
Defendant also claims that the Burk deposition would violate
Rule 26 because the parties in Creely's lawsuit, Creely v. Genesis Health
Ventures, Inc.,*fn6 have not yet made their initial disclosures, as
required by Rule 26(a).*fn7 Defendant further states that, pursuant to
Rule 26(d), "`a party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f).'" (Def.'s Mem. in Opp'n
at 2 (quoting Fed.R.Civ.P. 26(d)).) However in the instant case,
Plaintiff has requested the Burk deposition to support this
Plaintiff's allegations, not those of Creely in his separate matter.
While the cases are admittedly closely related, Defendant cites no
authority, and we are aware of none, that would direct this Court to
prohibit a relevant deposition in one case, simply because it might lead
to admissible evidence in a separate lawsuit.
Defendant's final objection is that "Burk has suffered from significant
illness since early January, 2004", which has prevented Burk from
returning to work. (Def.'s Mem. in Opp'n at 2.) While the Court is not
insensitive to Burk's situation, based on this limited information, we
cannot prevent Plaintiff from moving forward with the deposition.
Moreover, during the March 15, 2004, status conference, Defendant's counsel raised the same
concerns and the Court instructed counsel that in responding to
Plaintiff's Motion to Compel the deposition, Defendant's counsel should
provide medical documentation as to why the deposition should not take
place. Defendant's counsel has failed to do so. Accordingly, we will
grant Plaintiff's Motion to Compel Attendance.
For the foregoing reasons, Plaintiff's Motion to Overrule
Defendant's Objections to her Fourth Request for Production of Documents
will be granted in part and denied in part, and Plaintiff's Motion to
Compel Attendance at Oral Deposition will be granted.
An appropriate Order follows.
AND NOW, this 22nd day of April, 2004, upon consideration of
Plaintiff's Motion to Overrule Defendant's Objections to her Fourth
Request for Production of Documents, (Doc. No. 22), and Plaintiff's
Motion to Compel Attendance at Oral Deposition, (Doc. No. 24), and all
papers filed in support thereof and opposition thereto, it is ORDERED
1. Plaintiff's Motion to Overrule Defendant's
Objections to her Fourth Request for
Production of Documents, (Doc. No. 22), is
GRANTED in part and DENIED in part; and
2. Plaintiff's Motion to Compel Attendance at
Oral Deposition, (Doc. No. 24), is GRANTED.
IT IS SO ORDERED.