Opinion
NO. 3-02-CV-1773-R
April 25, 2003
MEMORANDUM ORDER
Plaintiff Sabrina White, appearing pro se, has filed a motion to compel discovery in this race and sex discrimination case brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. At issue are: (1) a copy of plaintiff's entire personnel file while employed at Allstate; (2) badge reports for eight members of the Enterprise Help Center ("EHC") Network Team from July 1, 2001 through February 2002; (3) PDS Evaluations and Statistical Performance Data used to evaluate members of the EHC Network Team during the 2001 employment year; (4) records from the Education Department pertaining to Ramin Aminy, an EHC Network Team Analyst; and (5) the current employment status and contact information for 34 potential witnesses. After the motion was filed, plaintiff and defense counsel exchanged written correspondence and participated in a court-ordered face-to-face meeting in an effort to resolve this discovery dispute. A joint status report detailing the respective positions of each party was filed on April 23, 2003. After considering the motion, the joint status report and the exhibits attached thereto, the court determines that the motion to compel should be granted in part and denied in part.
The discovery requests at issue consist of written interrogatories propounded by plaintiff to defendant. However, most of the interrogatories seek the production of documents and other tangible evidence. As plaintiff is appearing pro se, the court will treat the interrogatories as requests for production of documents under Federal Rule of Civil Procedure 34, where appropriate.
In her motion, plaintiff also seeks an order compelling production of a packet she submitted to Allstate's Home Office Resolution Line relative to her charge of discrimination. These documents were produced to plaintiff at the face-to-face conference held on April 17, 2003. (Jt. Stat. Rep. at 2, ¶ III § 1).
I.
The first issue raised by the joint status report is whether defendant has produced: (1) a complete copy of plaintiffs personnel file, whether maintained by Allstate's Human Resources Department, Education Department, Payroll and Accounting Department, or individual EHC management employees; and (2) badge reports for members of the EHC Network Team from July 1, 2001 through February 2002. Defendant maintains that all responsive documents, to the extent they exist, have been produced. More particularly, defendant has given plaintiff copies of all documents pertaining to her from the Human Resources Department, Education Department, and Payroll and Accounting Department, as well as records found in a file maintained by Ernest Terry, a former EHC Network Team supervisor. With respect to badge reports, defendant states that these reports are automatically overwritten after 30 days. A badge report run on plaintiff in August 2001 was found in a file kept in Terry's desk, and that report has been produced by defendant. Otherwise, defendant asserts that no badge reports exist for the relevant time period and has offered to supplement the record with the affidavit of Dean Sifuentes, a staff analyst with the Facilities Services Department, to that effect.
A "badge report" is derived from data collected when an employee enters and exists a secured Allstate facility using a personal access card.
Plaintiff offers no evidence that defendant is withholding any documents responsive to these requests. Instead, she merely restates her belief that defendant must have a copy of her employment application and documents from her pre-employment screening, as well as documents used to determine her May 2001 salary adjustment, because "it is blatantly obvious that Allstate did not just give the Plaintiff over a $9,000 salary adjustment without there being some trace of supporting evidence on how the calculation was derived and the new stipend was obtained for the Plaintiff in May 2001." (Jt. Stat. Rep. at 3, ¶ IV § 1). With respect to the badge reports, plaintiff complains that "[i]t seems awfully convenient that this information is not available now and the terms by which it is unavailable, when Allstate's initial objections do not provide this reasoning." ( Id. at 4, ¶ IV § 2). The court finds nothing inherently suspect in defendant's explanation surrounding the production of documents contained in plaintiff's personnel file and the badge reports. However, in order to alleviate any concerns plaintiff may have about these documents, defendant shall provide the court with an affidavit or sworn declaration from an Allstate employee with personal knowledge that: (1) plaintiff's initial employment application, documents from her pre-employment screening, and documents used to determine her May 2001 salary adjustment do not exist; and (2) badge reports for members of the EHC Network Team from July 1, 2001 through February 2002 were routinely destroyed after 30 days and do not currently exist. This affidavit or declaration must be filed by May 2, 2003. If any of these documents are located by defendant, they shall be produced to plaintiff instanter.
II.
Plaintiff also seeks PDS Evaluations and Statistical Performance Data used to evaluate members of the EHC Network Team during 2001 and records from the Education Department pertaining to Ramin Aminy, an EHC Network Team Analyst. Defendant has provided plaintiff with a copy of her 2001 PDS Evaluation. However, it objects to producing documents and information relating to non-party employees and former employees on grounds of relevance and privacy.
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides, in pertinent part:
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . 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 the lead to the discovery of admissible evidence
FED. R. Civ. P. 26(b)(1). In her amended complaint, plaintiff alleges that she was subjected to race and sexual discrimination, harassment and retaliation by her former supervisor, Ernest Terry, and other unidentified Allstate employees. According to plaintiff, Terry placed her on progressive discipline for failing to adhere to her schedule when seven other male members of the EHC Network Team and the entire PRC unit were not disciplined for the same or similar conduct. (Plf. Am. Compl. at 1, ¶ I). Plaintiff does not allege that she received less favorable performance evaluations than other members of her EHC Network Team on account of her race or gender, or that her salary increase in May 2001 was discriminatory. Therefore, these discovery requests are not relevant to a "claim or defense of any party" and are beyond the scope of Rule 26(b)(1). See Onwuka v. Federal Express Corp., 178 F.R.D. 508, 516 (D. Minn. 1997) (citing cases) (court should not allow parties to "roam in the shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so"). Moreover, "[t]he bald assertion of a disparate treatment claim does not by itself entitle a plaintiff to disclosure of confidential personnel information regarding all employees, similarly situated or not." Gavenda v. Orleans County, 182 F.R.D. 17, 29 (W.D.N.Y. 1997). Defendant's objections on grounds of relevance and privacy are sustained.
Plaintiff suggests for the first time in the joint status report that defendant may have violated the Equal Pay Act and that her "pay increase was discriminatory as well." ( See Jt. Stat. Rep. at 8, ¶ IV § 3).
III.
Finally, plaintiff seeks the current employment status and contact information for 34 potential witnesses listed in her interrogatories. Defendant has advised plaintiff that all of the witnesses, except for Tara Fleming, Henry Johnson, Carolyn McMillian, Adrian Johnson, Jeoffry Thompson and Ernest Terry, are currently employed by Allstate. As a result of their employment status, plaintiff can only contact these witnesses through defense counsel. With respect to the six former Allstate employees, defendant objects to providing contact information due to privacy concerns.
Rule 26(b)(1) allows a party to discover "the identity and location of persons having knowledge of any discoverable matter." FED. R. Civ. P. 26(b)(1). Other than Ernest Terry, who was one of plaintiff's supervisors at Allstate, it is not apparent that any of the witnesses listed by plaintiff has knowledge of facts reasonably calculated to lead to the discovery of admissible evidence. Accordingly, defendant shall provide plaintiff with the last known address for Ernest Terry by May 2, 2003. Defendant's objection to providing contact information for other current and former Allstate employees is sustained on relevance and privacy grounds. See Grady v. Affiliated Central, Inc., 130 F.3d 553, 561 (2d Cir. 1997), cert. denied, 119 S.Ct. 349 (1998) (court has discretion to refuse production of contact information, such as the home telephone numbers of present or former employees).
Although the court has sustained defendant's objection to providing contact information for other former Allstate employees, defendant should nevertheless furnish plaintiff with their last known addresses if she is able to demonstrate that they have knowledge of facts that may lead to the discovery of admissible evidence. This is a matter that should he resolved between plaintiff and defense counsel without the necessity of court intervention. While plaintiff is not entitled to contact information for any current Allstate employee, defense counsel should make these employees available for trial without the necessity of a subpoena if plaintiff is able to show that their testimony is relevant and admissible.
IV.
If a motion to compel discovery is denied, the moving party is required to pay reasonable expenses and attorney's fees incurred in opposing the motion "unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust." FED. R. Civ. P. 37(a)(4)(B). Contrary to the position taken by plaintiff in the joint status report, it is obvious that defense counsel made a good faith effort to work through these disputes without unnecessarily involving the court. Almost all of defendant's objections to the requested discovery were sustained and plaintiff's motion was not substantially justified. However, because plaintiff is proceeding pro se, the court will not impose sanctions at this juncture. The parties are admonished to work together in a cooperative and professional manner in an attempt to resolve discovery disputes without court action. Any future discovery-related motions filed in this case must comply with the Standing Order on Non-Dispositive Motions entered this date.CONCLUSION
For the reasons stated herein, plaintiff's motion to compel discovery is granted in part and denied in part. The motion is granted to the extent that defendant is ordered to: (1) provide plaintiff with the last known address for Ernest Terry; and (2) provide the court with an affidavit or sworn declaration from an Allstate employee with personal knowledge that: (a) plaintiff's initial employment application, documents from her pre-employment screening, and documents used to determine her May 2001 salary adjustment do not exist; and (b) badge reports for members of the EHC Network Team from July 1, 2001 through February 2002 were routinely destroyed after 30 days. Defendant shall provide Terry's address to plaintiff and file the appropriate affidavits or declarations with the court by May 2, 2003. In all other respects, plaintiff's motion is denied.
SO ORDERED.