United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PAUL R. CHERRY, Magistrate Judge.
This matter is before the Court on the EEOC's Motion to Compel SVT's Complete Responses to Written Discovery [DE 86], filed by Plaintiff Equal Employment Opportunity Commission ("EEOC") on October 27, 2014. Defendant SVT, LLC d/b/a Ultra Foods ("SVT") filed a response on November 10, 2014, and the EEOC filed a reply on November 24, 2014.
This matter is also before the Court on Defendant's Motion for Leave to File Additional Response to EEOC's Motion to Compel [DE 94], filed on December 9, 2014, to which Plaintiff EEOC filed a response on December 10, 2014. The motion is denied. Any new arguments by the EEOC in the reply brief not raised in the opening brief and/or based on evidence not available to SVT at the time of its response brief (such as depositions taken after the response brief was filed) will not be considered by the Court on this motion.
SVT allegedly rejected Tiffany Swagerty for a night crew stocker position at its Merrillville, Indiana Ultra Foods store ("Store 8781") after she applied in February 2010. Subsequently, perhaps in April 2010, Swagerty had a telephone conversation with SVT's hiring manager Timothy Farley, who told her women that were not usually hired for night positions. Hearing nothing further from the store, Swagerty complained to the EEOC in November 2010. This led to an investigation by the EEOC of Store 8781's hiring practices, which the EEOC represents corroborated the allegation that despite sufficient female applicants, SVT overwhelmingly hired male applicants for its night crew stocker position. Finding probable cause for a Title VII violation, the EEOC filed this Title VII lawsuit seeking injunctive relief and, on behalf of Swagerty and other similarly rejected female applicants, monetary damages.
On September 30, 2013, the EEOC served SVT with written interrogatories and requests for production of documents, seeking information about other night crew stocker applicants; SVT's motive, intent, and plan with respect to hiring; information about hiring and those involved in hiring; the discovery of potential witnesses who may have relevant information about the same; night crew stocker job duties; training materials; other complaints of gender discrimination; SVT's financial health; and night crew stocker hiring in SVT's other Northern Indiana stores. For those interrogatories and requests lacking a more specifically stated temporal scope, the EEOC instructed generally that the temporal scope was January 1, 2009, to the present.
SVT obtained three extensions of time to respond to these discovery requests. SVT then responded to the EEOC's first set of written discovery, which the EEOC describes as making only partial disclosures or production along with objections. The EEOC represents that attempts to resolve SVT's objections to these requests were fruitless and the parties reached an impasse on (1) personnel and hiring records, (2) background, "me-too" evidence, (3) SVT's financial health records related to punitive damages, (4) Night Crew Stocker job duties/minimum qualification records, and (5) four pages of notes taken by SVT then-Human Resources Director Jessica Hon at the direction of SVT counsel during the EEOC's pre-suit investigation interview of hiring manager Timothy Farley.
The scope of discovery is governed by Federal Rule of Civil Procedure 26, which provides:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
Fed. R. Civ. P. 26(b)(1). A motion to compel is properly denied when the information sought is not relevant to a plaintiff's claims. Griffin v. City of Milwaukee, 74 F.3d 824, 829 (7th Cir. 1996). District Courts are afforded broad discretion in matters of compelling discovery. James v. Hyatt Regency Chi., 707 F.3d 775, 784 (7th Cir. 2013).
In the instant motion, the EEOC seeks to compel complete discovery responses to the EEOC's first and second written discovery requests, which seek information relevant to the EEOC's Title VII gender discrimination hiring lawsuit and SVT's defenses to the same. Specifically, the EEOC asks that the Court order SVT to fully, completely, and for the time period specified respond to the EEOC's first written Interrogatories Nos. 6, 10, and 12, Requests for Production Nos. 4-7, 9-10, 12-14, and 19-20, and Second Request for Production No. 3.
As an initial matter, the EEOC premises those portions of its motion in which it seeks to expand discovery beyond Store 8781 to all of SVT's Northen Indiana stores on an assertion that a vice president, a director, and managers of SVT have either testified or insinuated that "hiring practices" at SVT's Store 8781 were the same as other SVT stores in Northern Indiana and consistent with some industry norm related to the gender of night crew stockers. Although this testimony indicates that more applications by males than females were received for the night stocker positions and that, generally, the hiring practices were consistent within the industry, the testimony does not connect consistency with industry standards in hiring to the gender of the night crew stocker applicants.
On page 4 of its brief, the EEOC represents that "SVT's Human Resources Vice President and Human Resources director testified during their March 2014 depositions that hiring for Store 8781 was the same' as any other store with respect to gender of night crew stockers." (Pl. Br. 4). However, a review of the cited deposition testimony reveals that the testimony discussed the consistency of the applicant pool (mostly men applied for the night stocker positions) and not of the hiring practices. In the cited pages of his deposition, Vice President Rex Mudge answered "yes" when asked if, in his opinion, the number of females hired for night crew stocker positions at Store 8781 is sufficient. He explained,
Again, you know, women on night crew, I mean, if you look at the industry, they're not-it's just not a position that's real attractive. And, again, our system cannot capture this either, but you know, that's not a position that-it's very physical. There's not a lot of interaction. It's all production.
People within our system-especially this particular store, 8781, through the union process and through the union grievance, they have the ability, if they want, to elect to go to night crew. And to date, no one has ever asked. No one has ever lodged a complaint. Nobody has ever asked through the union grievance procedure if they can, on the next opportunity, go to night crew.
It's just the way it is with 8781. The union contract, they're all clerks. They have the ability, based on seniority and based on time within the company, to migrate to whatever positions they ultimately want. So, there's never been a complaint, never been an issue, and there has certainly been opportunities.
(Pl. Br., Exh. 12, pp. 232-33).
As for SVT Human Resource Manager Rich Bugajski, the EEOC cites the following portion of his deposition testimony:
Q. And if I told you the records that SVT, LLC, has produced to the EEOC today show 55 male hirers[sic] at that store in that time period, do you have any information or any facts that would dispute that?
A. No, not to my knowledge.
Q. Do you believe the number-do you personally-do you believe the number of females hired at 8781 for night stocking is adequate?
Mr. Long: I'm going to object on foundation and form. It's asking the witness for a personal opinion, but based upon the facts. You can answer the question. By the Witness:
A. And it was the three?
A. Since 2010?
A. Based off my personal experience in those roles and knowing the applications that you'd see, not very many females would apply, so it was heavily saturated with male applicants. So does it surprise me? Not tremendously.
(Pl. Br., Ex. 13, p. 202 at ll. 13-25, p. 203 at ll. 1-11). The EEOC also cites his deposition testimony on page 271:
A. Working inside of the store and seeing the applicants that would apply for night crew, it was heavily male. Not very many females would apply to that location. Just same type of thing as bakery positions. Lots of female applicants, not very many male applicants. It's nothing out of the norm.
Q. When you say "at that store, " you're not talking about 8781, correct?
A. Of any- yeah, of the stores I was at.
Q. Okay. And those did not include 8781, correct?
Q. And you were never concerned about the lack of female applicants at the stores that you worked in, correct?
(Pl. Br., Exh. 13, pp. 271).
In the next sentence on page 4 of its brief, the EEOC similarly misinterprets the cited evidence by stating that other managers "insinuated that gender hiring proportions and practices at Store 8781 were within some industry norm." Id. (emphasis added). Again, a review of the cited portions of the depositions reveals nothing about hiring practices in relation to the gender of the applicants and those hired; the testimony is solely regarding the gender ratio of the applicants and then separately whether the applicant pool for the night stocker position at Store 8781 was consistent with industry norms.
Manager Joseph Kozak testified that his knowledge of hiring related to the claims in this case included "[h]iring of night crew for Cub Foods when he worked for them and hiring of night crew for Food 4 Less when I worked for them as well." (Pl. Br., Ex. 14, p. 48). He was then asked "What about the hiring of night crew for those two businesses is related to the EEOC's claim that SVT at Store No. 8781 didn't hire night crew stockers because of their gender?" Id. Over SVT's counsel objection, Kozak testified:
BY THE WITNESS:
A. From what I understand, it was - it's the industry experience across other industries as far as hiring practices and predominant roles of an[sic] employment in night crews was valuable for the case.
BY MS. LYBOLT:
Q. Tell me what information-what specific information do you think was valuable to the case?
A. Specifically that in the companies that I've worked for, there have not been a lot of female applicants for night crew or those applicants that were for night crew had multiple positions put down on their applications other than night crew to apply for other than night crew.
Id. at p. 49, ll. 5-17. Later in the deposition, the following exchange occurred:
Q. Have you found that-based upon your observations that SVT's hiring practices are consistent with other businesses in the industry?
Ms. Lybolt: I'm going to object to the form of the question.
By Mr. Long:
Q. You can answer.
A. Yes. I've-from what I've seen, they've ...