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Equal Employment Opportunity Commission v. United States Steel Corporation

December 29, 2011

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
PLAINTIFF,
ABIGAIL DESIMONE, PLAINTIFF-INTERVENOR,
v.
UNITED STATES STEEL CORPORATION; UNITED STEEL, PAPER & FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL, AND SERVICE WORKERS INTERNATIONAL UNION AFL-CIO, DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

Presently pending before this Court are two related motions filed by Plaintiff EEOC (Docket No. 90) and Plaintiff Intervenor (hereinafter "DeSimone") (Docket No. [91]) challenging this Court‟s discovery rulings. In a nutshell, DeSimone did not fully discover her individual claims within the discovery period. DeSimone now seeks an extension to conduct further discovery and EEOC seeks to proceed with discovery on its class claims, given DeSimone‟s failure. The Motions [90] and [91] have been fully briefed and the Court heard Oral Argument thereon (Docket Nos. [99]; [100]; [104]; [108]; [125]). The transcript of the motion hearing has been filed of record (Docket No. [160]) and considered by the Court. For the following reasons, both Motions [90] and [91] are denied.

I.Facts and Procedural Background:

The discovery orders which DeSimone and EEOC have challenged were issued after considerable input was provided by the parties. As a consequence, the Court will discuss the background relevant to the Court‟s issuance of those orders. The parties filed their Rule 26(f) Report on January 31, 2011, wherein they provided the Court with their respective positions on discovery in this matter. (Docket No. 32). At that point, EEOC sought limited discovery (prior to Alternative Dispute Resolution) to identify class members. (Id. at ¶ 6). DeSimone also maintained that initial discovery should be conducted prior to Alternative Dispute Resolution. (Id.). She specifically sought discovery on Defendants‟ human resource policies, including drug and alcohol testing and compliance with the Americans with Disabilities Act, as well as Defendants‟ discipline process and information concerning termination of similarly situated employees. (Id. at ¶ 8). U.S. Steel countered that it was premature to address discovery issues prior to Alternative Dispute Resolution, as its Motion to Dismiss [23] was pending and that a ruling thereon would affect the scope and nature of discovery. (Id. at ¶ 6). The United Steel Workers Union stated that it was prepared for Alternative Dispute Resolution at any time. (Id.).

Additionally, in the Rule 26(f) Report, EEOC asserted its preference for a three-stage discovery process. (Id. at ¶ 9). During the first stage (approximately nine months) EEOC would identify victims; determine alleged harm; monetary and non-monetary damages; and the format in which Defendants maintained discoverable material. (Id.). The second stage would commence after the conclusion of Alternative Dispute Resolution and involve all remaining discovery, except for expert discovery. (Id.). The third stage would encompass expert discovery. (Id.).*fn1

A Case Management Conference was held on February 3, 2011, during which counsel for the parties discussed the status of the case with the Court. (Docket No. 37). Because counsel failed to agree on a discovery schedule in the Rule 26(f) Report (Docket No. 32), the Court instructed counsel to meet and confer to develop a proposed discovery schedule and file a status report regarding same, as well as proposed discovery schedules by February 15, 2011. (Id.). Accordingly, on February 15, 2011, the parties submitted a Status Report Regarding Proposed Discovery Schedules (Docket No. 41), in which they stated that they had met and conferred, but continued to disagree about a proposed discovery schedule. (Id.). Therein, the parties noted their differing positions with respect to discovery related to DeSimone‟s individual claims and the putative class of employees. (Id.). That same day, EEOC and DeSimone filed their Joint Proposed Discovery Schedule (Docket No. 42) and U.S. Steel filed its Proposed Discovery Schedule (Docket No. 43).*fn2

On February 24, 2011, after considering the parties‟ positions and all of their submissions, this Court entered a Case Management Order, which provided, in pertinent part, as follows:

2.) Written discovery as to the claims of Plaintiff-Intervenor DeSimone shall commence immediately.

3.) Plaintiff-Intervenor DeSimone shall provide full and complete signed authorizations for all education; employment; medical and mental health records when she serves responses to Defendants‟ initial interrogatories; requests for production and requests for admissions.

4.) Fact discovery against third party medical professionals and/or entities involved in the breath alcohol test administered to Plaintiff-Intervenor DeSimone, the documentation and reporting of same to U.S. Steel shall be concluded on or before May 15, 2011.

5.) Plaintiff-Intervenor DeSimone and her husband shall be deposed on or before June 15, 2011. The male employees who were allegedly retained when Plaintiff-Intervenor DeSimone was not,*fn3 the U.S. Steel employees involved in the formulation and administration of policies concerning drug and alcohol testing in the time period of January 1, 2006 to the present and the employees involved in the hiring and firing of Plaintiff-Intervenor DeSimone shall be deposed on or before July 1, 2011. The Court will entertain a request for relief from the seven (7) hour time limit pertaining to depositions upon the filing of a motion, with good cause shown.

6.) To the extent any party desires to take the deposition of any treating/examining physician of Plaintiff-Intervenor DeSimone, said depositions shall be concluded on or before August 15, 2011.

7.) The Court shall conduct a fact discovery status conference on August 16, 2011 at 10:00 a.m., at which time the Court will consider the potential for and nature and extent of any additional fact discovery to be conducted on the individual claims of Plaintiff-Intervenor DeSimone. The Court will also entertain proposals for expert discovery as to the individual Plaintiff-Intervenor DeSimone‟s claims, to the extent the parties intend to engage in same at this conference. (Docket No. 44).

The Court entered an Order on March 2, 2011 (Docket No. 52) amending its February 24, 2011 Order, to include the provision that "any motions to amend pleadings or to add new parties shall be filed no later than February 28, 2011. In all other respects, said Order [44] dated February 24, 2011 shall remain in full force and effect." (Id.). Two months later, on May 2, 2011, the Court entered another Case Management Order upon consideration of EEOC‟s Unopposed Motion to Modify the Case Management Order. (Docket No. 78). Said Order amended the February 24, 2011 Order to include the following three provisions: (1) the parties shall complete fact discovery against third party medical professionals and/or entities involved in the breath alcohol test administered to DeSimone, the documentation and reporting of same to U.S. Steel on or before July 13, 2011; (2) in all other respects, the February 24, 2011 Order shall remain in full force and effect; and (3) that a copy of the May 2, 2011 Order shall be served on third party Jefferson Regional Medical Center and third party medical professionals, Ms. Bahr and Dr. Padiyar with any discovery requests served on them or to be served on them. (Docket No. 81).

There were no other motions nor any further objections brought during the initial discovery period challenging the Court‟s February 24, 2011 and May 2, 2011 discovery Orders. Therefore, all fact discovery as to those matters outlined in said Orders closed on August 15, 2011. However, during the August 16, 2011 Fact Discovery Status Conference, it became apparent that little discovery was accomplished per the Court‟s Orders. At the outset, the Court addressed DeSimone‟s failure to provide full and complete signed authorizations for all education, employment, medical and mental health records, as ordered on February 24, 2011. (Docket No. 95). The Court then ordered that no later than August 19, 2011, full and complete authorizations were to be provided to counsel for United States Steel. (Id.).

Next, the Court addressed DeSimone‟s letter*fn4 , dated August 15, 2011, in which she indicated that she would like to depose six of U.S. Steel‟s witnesses. (Id.). U.S. Steel objected to this request, on the basis that DeSimone had sufficient time to depose said witnesses, between February 24, 2011 and August 15, 2011, and no timely motion for enlargement had been filed. (Id.). In fact, under the Court‟s February 24, 2011 Case Management Order [44], said depositions were to have been completed by July 1, 2011. (Id.). As no motion for enlargement was filed, this Court denied DeSimone‟s request to depose said witnesses. (Id.). The Court then entertained proposals for expert discovery as to DeSimone‟s individual claims. (Id.).

Given the fact that one of the attorneys participated in the August 16, 2011 Conference by telephone, this Court, as is its practice, emailed counsel of record copies of its proposed Conference Memo and Amended Order, prior to filing same. (Docket No. 125-2). Emailing these drafts to counsel was a courtesy, to allow counsel the opportunity to submit any necessary revisions, potentially caused by the fact that one of the attorneys who participated by telephone, may have had difficulty hearing the Court‟s rulings. In response, EEOC and DeSimone filed the instant motions.

Despite same, the Court proceeded to enter its Conference Memo (Docket No. 95) and Amended Order (Docket No. 96) on August 24, 2011. The Amended Order provides the following:

1. IT IS HEREBY ORDERED that Plaintiff-Intervenor, is to provide full and complete signed authorizations for all education, employment, medical and mental health records, no later than August 19, 2011, at 5:00 P.M., to Counsel for Defendant United States Steel Corporation.

2. IT IS HEREBY FURTHER ORDERED that all treating/examining physicians of Plaintiff-Intervenor, may be deposed by Defendant U.S. Steel, given the fact that Plaintiff-Intervenor shall provide the above-referenced authorizations, on or before August 19, 2011, at 5:00 P.M. Defendant U.S. Steel may move to enlarge the time permitted for said depositions.

3. IT IS HEREBY FURTHER ORDERED that Plaintiff-Intervenor will disclose her expert(s) by September 15, 2011. Defendant U.S. Steel will submit expert disclosures no later than October 17, 2011. In turn, Defendant U.S. Steel shall complete any expert discovery directed to Plaintiff expert(s) by October 31, 2011. Plaintiff-Intervenor shall complete any expert discovery directed to Defendant U.S. Steel expert(s) by November 30, 2011. The Court will conduct a ...


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