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Benavidez v. Sandia National Laboratories

United States District Court, D. New Mexico

March 30, 2017

LINDA BENAVIDEZ, Plaintiff,
v.
SANDIA NATIONAL LABORATORIES; VARICK TUCKER, Personally, and TIMOTHY GARDNER, Personally, Defendants.

          Rachel E. Higgins Rachel E. Higgins Attorney at Law Albuquerque, New Mexico and Katherine A. Wray Jane Katherine Girard Wray & Girard P.C. Albuquerque, New Mexico Attorneys for the Plaintiff Linda Benavidez.

          Justin E. Poore Sandia Corporation Albuquerque, New Mexico and Aaron C. Viets Rodey, Dickason, Sloan, Akin & Robb, P.A. Albuquerque, New Mexico Attorneys for the Defendants.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Plaintiff's First Motion to Compel Production of Documents, filed May 2, 2016 (Doc. 52)(“Motion to Compel”). The Court held a hearing on March 16, 2017. The primary issue is whether the Court should compel Defendant Sandia National Laboratories to produce various items of requested discovery to Plaintiff Linda Benavidez. The Court will grant the Motion to Compel in part and deny it in part. Because the Court concludes that Benavidez made a sufficient showing at the hearing that she is entitled to two of the requested items -- and dropped her Motion to Compel as to any other items she had initially requested -- the Court will order the production of a spreadsheet of “copies of job postings or any available job openings within Sandia National Laboratories from 2014 to present, ” and of ten representative photographs of “vehicles in the Sandia National Laboratories commercial pool.” Motion to Compel at 6, 7. The Court will otherwise deny the Motion to Compel. Further, because the Court is granting in part and denying in part the Motion to Compel, it will not award Sandia Labs the attorney's fees and expenses it requests due to Benavidez' filing of the Motion to Compel. The Court also concludes that Benavidez did not satisfactorily meet-and-confer with Sandia Labs before filing the Motion to Compel as the rules require. The Court, however, will not impose a sanction on these particular facts.

         FACTUAL BACKGROUND

         The Court takes the following recitation of the relevant facts from the First Amended Complaint for Damages for Violation of the New Mexico Human Rights Act, and for Intentional Infliction of Emotional Distress, filed October 15, 2015 (Doc. 1-2)(“First Amended Complaint”), which Benavidez originally filed in the Second Judicial District Court, County of Bernalillo, State of New Mexico. See First Amended Complaint at 1.[1]

         Sandia Labs employed Benavidez, a United States citizen and a resident of Albuquerque, New Mexico. See First Amended Complaint ¶ 8, at 6. Defendant Varick Tucker was Benavidez' Human Resource manager, while Defendant Timothy Gardener was Benavidez' manager. See First Amended Complaint ¶¶ 11-12, at 6. Sandia Labs had hired Benavidez as a Neutron Generator Production Specialist on June 1, 2001, see First Amended Complaint ¶ 14, at 7, but she eventually “developed some serious medical conditions which resulted in Plaintiff's life activities being affected, ” First Amended Complaint ¶ 16, at 7. In 2011, the requirements of Benavidez' position changed to include the need for a Trades Degree. See First Amended Complaint ¶ 17, at 7. To obtain a Trades Degree, Benavidez would have had to return to school for college-level courses such as physics, trigonometry, and chemistry, which would have required her to take years of preparatory classes to qualify to take the required classes. See First Amended Complaint ¶ 19, at 7; id. ¶ 42, at 11; id. ¶ 53, at 12.

         Benavidez was told that, if she was unable to obtain the Trades Degree, she would be “bumped” into another similar position at Sandia Labs with the same grade level and pay. First Amended Complaint ¶ 22, at 8. See id. ¶ 42, at 11; id. ¶ 53, at 12. “Instead of being ‘bumped' into a similar position at Sandia Labs, though, Plaintiff was ultimately placed in a position described as a Maintenance Support Technician, ” which “included ‘duties requiring working strenuous positions with exertions of physical effort up to 60 pounds.'” First Amended Complaint ¶ 24, at 8. See id. ¶ 43, at 11; id. ¶ 54, at 12. “She and her co-workers that were put in this position, essentially as tractor/trailer drivers, were the only females working this job.” First Amended Complaint ¶ 25, at 8. See id. ¶ 43, at 11; id. ¶ 54, at 12. “The only other employees in this position were men, with the exception of one other woman over the age of 40 who was also being ‘absorbed' into this new position, and who was ultimately terminated.” First Amended Complaint ¶ 54, at 12.

         “On September 9, 2014, Ms. Benavidez filed a formal charge of discrimination on the basis of sex, age, and equal pay in violation of the New Mexico Human Rights Act, NMSA § 28-1-7 (1978), et seq.” First Amended Complaint ¶ 3, at 5-6. On September 30, 2014, a doctor “with Defendant SNL advised Plaintiff that she was incapable of performing the job duties due to her permanent medical restrictions.” First Amended Complaint ¶ 31, at 9. See id. ¶ 45, at 11; id. ¶ 57, at 13. Accordingly, Benavidez “was placed on a realignment process and was not given any reasonable accommodation.” First Amended Complaint ¶ 32, at 9. See id. ¶ 57, at 13. On April 16, 2015, Sandia Labs terminated Benavidez' employment. See First Amended Complaint ¶ 36, at 10; id. ¶ 66, at 13-14.

         PROCEDURAL BACKGROUND

         This case has had a lengthy procedural history, and the Court will detail it as it relates to Benavidez' Motion to Compel. This discussion will, to an extent, involve discussing the pleadings, briefing, and Memorandum Opinions and Orders that entail information relevant to the Motion to Compel, with respect to both substance and chronology. One of the case's aspects has been whether the First Amended Complaint was before the Court, and whether Benavidez was going to be the sole plaintiff, in light of Benavidez' various proposed amendments subsequent to filing the First Amended Complaint. As a consequence of the litigation regarding those issues, the Motion to Compel was not heard until March 16, 2017, as the parties and the Court continued to choose to withhold argument on the Motion to Compel until the Court had decided the issues surrounding the First Amended Complaint's amendment.

         On August 27, 2015, Benavidez filed suit in the Second Judicial District Court. See First Amended Complaint at 1. Benavidez did not serve the original complaint upon the Defendants, and Benavidez instead served the First Amended Complaint. See Notice of Removal at 1, filed October 15, 2015 (Doc. 1). About a month and a half later, on October 15, 2015, the Defendants removed the case to federal court, asserting federal-question jurisdiction. See Notice of Removal at 1-7. Benavidez asserted three causes of action against all of the Defendants: (i) discrimination on the basis of age in violation of the New Mexico Human Rights Act, N.M. Stat. Ann. §§ 28-1-1 to -14 (“NMHRA”), see First Amended Complaint ¶¶ 38-48, at 10-12 (Count I); (ii) discrimination on the basis of sex in violation of the NMHRA, see First Amended Complaint ¶¶ 49-62, at 12-13 (Count II); and (iii) intentional infliction of emotional distress, see First Amended Complaint ¶¶ 63-73, at 13-14 (Count III). Benavidez asked the Court for judgment against the Defendants “for all actual, compensatory, nominal, and emotional damages she has suffered . . . [, ] punitive damages for Defendants' willful, wanton, and reckless conduct . . . [, ] attorneys' and other fees, costs, and pre- and post-judgment interest accrued[, ] and for such other relief as the Court finds just and proper.” First Amended Complaint at 14-15.

         1. The Preemption MOO Dismissing Benavidez' State Claims.

         After Benavidez filed the First Amended Complaint, after a January 20, 2016, hearing, [2]the Court issued the first of the Memorandum Opinions and Orders it has entered in this case. The Amended Memorandum Opinion and Order, filed June 27, 2016 (Doc. 64)(“Preemption MOO”), addressed the Defendants' Motion to Dismiss, filed October 21, 2015 (Doc. 7)(“Motion to Dismiss”), in which Sandia Labs argued that the Labor Management Relations Act, 29 U.S.C. § 141 (“LMRA”) preempted Benavidez' state law claims. Sandia Labs supported its Motion to Dismiss by citation to the Supreme Court of the United States' holding that LMRA § 301 will completely preempt a state law claim when resolution of the state law claim is substantially dependent upon analysis of the terms of a Collective Bargaining Agreement (“CBA”) between the parties. See Caterpillar Inc. v. Williams, 482 U.S. 386, 395 (1987); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202');">471 U.S. 202, 213 (1962)(stating that preemption analysis turns on whether the action confers rights on employers or employees “independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract”); Cisneros v. ABC Rail Corp., 217 F.3d 1239, 1302 (10th Cir. 2000)(explaining that § 301 “preempts questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, . . . whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort”). Such “[p]reemption arises only when an ‘evaluation of the . . . claim is inextricably intertwined with consideration of the terms of the labor contract.'” Mowry v. United Parcel Service, 415 F.3d 1149, 1152 (10th Cir. 2005)(emphasis in original). Further, “[a]s long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent' of the agreement for § 301 pre-emption purposes.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 410 (1988). The Court, in its Preemption MOO, ultimately concluded:

First, the Court concludes that the LMRA's § 301 does not preempt Benavidez' age and sex discrimination claims brought pursuant to the NMHRA. Second, the Court concludes that the LMRA's § 301 partially preempts Benavidez' intentional-infliction-of-emotional-distress claim. The Court concludes that, to the extent that Benavidez bases her intentional infliction of emotional distress claim on Gardener's “belittl[ing] and berat[ing]” her “for not being able to complete the course work she took in preparation for attempting to obtain a Trades Degree, ” § 301 does not foreclose Benavidez from asserting an intentional infliction of emotional distress claim. See Complaint ¶ 64, at 13. The Court concludes, however, that § 301 preempts Benavidez' intentional-infliction-of-emotional-distress claim to the extent that it is based on: (i) the Defendants' downgrading of Benavidez and putting her in a position for which she was not qualified, either by experience or physical abilities, rather than allowing her to move into another Grade 8 position, see Complaint ¶ 64, at 13; and (ii) the Defendants doing nothing to help her find another, more appropriate position after she complained to management multiple times and asked for help in her new position, and their ultimate termination of Benavidez for being unable to perform the new position, see Complaint ¶ 65, at 13. The Court nonetheless dismisses the portion of Benavidez' intentional-infliction-of-emotional-distress claim that § 301 preempts, because Benavidez has not demonstrated that she exhausted her remedies under the CBA.[3] See Allis-Chalmers Corp. v. Lueck, 471 U.S. [202, 220-21 (1985)](concluding that complaint should have been dismissed for failure to make use of the grievance procedure established in a collective-bargaining agreement or dismissed as pre-empted by § 301). Third, the Court concludes that Benavidez states a claim for sex and age discrimination under the NMHRA. Fourth, the Court will dismiss the claims against the individual defendants --Gardner and Tucker -- because Benavidez has not exhausted her administrative remedies against them. The Court concludes, however, that Benavidez has exhausted her administrative remedies for the conduct alleged in support of her NMHRA discrimination claims that took place after she filed her Charge of Discrimination on September 9, 2014. Fifth, with respect to the portion of Benavidez' intentional-infliction-of-emotional-distress claim that § 301 does not preempt, the Court concludes that Benavidez does not state a claim upon which relief can be granted. In sum, the Court is left with two state-law discrimination claims brought under the NMHRA. While the Court concludes that it retains federal enclave jurisdiction over this action, and therefore denies Benavidez' request in the Response that the Court remand this action to state court, it must dismiss Benavidez' three claims -- including those brought under the NMHRA --pursuant to the federal enclave doctrine.

Preemption MOO at 46-48.

         2. Motion for Leave to Substitute Second Amended Complaint.

         After the January 20, 2016, hearing, which ultimately led to the Court's Preemption MOO, and wherein the Court considered Sandia Labs' Motion to Dismiss -- but before the Court had issued its Preemption MOO -- Benavidez filed the Plaintiff's Motion for Leave to Amend Complaint, filed February 2, 2016 (Doc. 30)(“Motion for Leave to Substitute Second Amended Complaint”) -- providing as an attachment the Plaintiff's Second Amended Complaint for Damages for Violation of the New Mexico Human Civil Rights Act, Title I and IV of the American with Disabilities Act of 1964, Retaliation and Intentional Infliction of Emotional Distress and the Equal Pay Act of 1963, filed February 2, 2016 (Doc. 31)(“Proposed Second Amended Complaint”). See Motion for Leave to Substitute Second Amended Complaint at 1. “The Amended Complaint includes three (3) additional Plaintiffs who have similar claims arising out the same or similar conduct by their former employer, Defendant Sandia Corp. and the additional violation charge of the Equal Pay Act[, 29 U.S.C. § 206(d)].” Motion for Leave to Substitute Second Amended Complaint at 2. The three additional Plaintiffs have, according to the Motion for Leave to Substitute Second Amended Complaint, received “Right to Sue letters dated November 24, 2015, November 25, 2015 and November 30, 2015 and have received their letter of Non Determination from Human Rights Bureau on January 27, 2016.” Motion for Leave to Substitute Second Amended Complaint at 2. The Motion for Leave to Substitute Second Amended Complaint asserted that the Court and the Defendants were aware that Benavidez was awaiting the additional Plaintiffs' “Right to Sue Letters” before she filed this impending Motion for Leave to Substitute Second Amended Complaint. Motion for Leave to Substitute Second Amended Complaint at 2-3. “Plaintiff further request[ed] leave to amend the Complaint such that the caption may be amended to accurately reflect the nature to withdraw [sic] her claims against Defendant Gardner and Defendant Tucker and to add additional exhausted claims and additional Parties.” Motion for Leave to Substitute Second Amended Complaint at 3.

         The Proposed Second Amended Complaint, attached to the Motion for Leave to Substitute Second Amended Complaint, however, retained the same claims in the First Amended Complaint that the Court's Preemption MOO dismissed. See Proposed Second Amended Complaint at 1-24. Specifically, the Proposed Second Amended Complaint “essentially re-state[d] th[e] [Intentional-Infliction-of-Emotional-Distress] claim, as well as the New Mexico Human Rights Act age and sex discrimination claims that are subject to the [Preemption MOO].” Defendants' Response to Plaintiff's Motion for Leave to Amend Complaint at 2, filed March 7, 2016 (Doc. 38). More specifically, the Proposed Second Amended Complaint alleged “Count I: Discrimination on the Basis of Serious Medical Condition in Violation of the New Mexico Human Rights Act and Title I of the American Disability Act, ” Proposed Second Amended Complaint ¶¶ 123-34, at 16-17; “Count II: Discrimination on the Basis of Sex in Violation of the New Mexico Human Rights Act and/or Title VII of the Civil Rights Act Against Defendant Sandia Corporation, ” Proposed Second Amended Complaint ¶¶ 135-49, at 17-19; “Count III[:] Retaliation Against Defendant Sandia Corporation, ” Proposed Second Amended Complaint ¶¶ 150-58, at 19-20; “Count IV: Violation of the Age Discrimination in Employment Act, ” Proposed Second Amended Complaint ¶¶ 159-69, at 20-21; “Count V: Intentional Infliction of Emotional Distress, ” Proposed Second Amended Complaint ¶¶ 170-83, at 21-22; and “Count VI: The Equal Pay Act of 1963, ” Proposed Second Amended Complaint ¶¶ 184-88, at 22-23. On July 1, 2016 -- following the Court's issuance of the Preemption MOO -- Benavidez also submitted the Plaintiff's Supplemental Briefing on Doc. 30, Motion for Leave to Amend Complaint, filed July 1, 2016 (Doc. 65)(“Supplemental Briefing”), making minor changes to the Proposed Second Amended Complaint. See Supplemental Briefing at 1-2. The Supplemental Briefing renumbered paragraphs, discussed grievances that the Plaintiffs made before the Metal Trade Council, made more specific allegations, added a punitive damages claim, and changed the anticipated month of filing. See Supplemental Briefing at 2. Importantly, the Supplemental Briefing provided that, despite the Preemption MOO, “[i]n order to preserve the record for any appeal and on behalf of the new proposed Plaintiffs, Plaintiff has not removed the state law claims that the Court dismissed in the Amended Memorandum Opinion and Order [Doc. 64].” Supplemental Briefing at 2.

         3. Motion for Leave to Substitute Second Amended Complaint Response.

         Sandia Labs responded to the Motion for Leave to Substitute Second Amended Complaint with the Defendants' Response to Plaintiff's Motion for Leave to Amend Complaint, filed March 7, 2016 (Doc. 38)(“Motion for Leave to Substitute Second Amended Complaint Response”). The Motion for Leave to Substitute Second Amended Complaint Response objected to the Motion for Leave to Substitute Second Amended Complaint, because the “Plaintiff's proposed amendment would be futile, cause undue delay, and cause undue prejudice to Defendant Sandia Corporation.” Motion for Leave to Substitute Second Amended Complaint Response at 1. Essentially, Sandia Labs requested that the Court not allow Benavidez to amend the First Amended Complaint until after the Court issues its Preemption MOO resolving the issues Sandia Labs raised in its Motion to Dismiss. See Motion for Leave to Substitute Second Amended Complaint Response at 3. The Motion for Leave to Substitute Second Amended Complaint Response concluded by stating:

Plaintiff's proposed amendment is -- at least as to the state law claims -- futile. Furthermore, the filing of a second amended complaint before the Court completes and issues its decision on Defendants' motion to dismiss would moot that motion and effectively nullify the work that has gone into arguing and deciding the motion, causing undue delay and undue prejudice to Sandia. Defendants' respectfully request that the Court deny Plaintiff leave to amend her complaint until after a decision is issued on Defendants' motion to dismiss, and in no event should it be granted with regard to state law claims that Sandia has already identified as defective.

Motion for Leave to Substitute Second Amended Complaint Response at 3.

         4. The Motion for Leave to Substitute Second Amended Complaint Reply.

         Benavidez replied to the Motion for Leave to Substitute Second Amended Complaint Response with the Plaintiff's Reply to Defendant's Response to Plaintiff's Motion for Leave to Amend Complaint, filed March 21, 2016 (Doc. 43)(“Motion for Leave to Substitute Second Amended Complaint Reply”). The Motion for Leave to Substitute Second Amended Complaint Reply offered a path forward for the Court, stating initially that the “Plaintiff is attempting to comply with Court's Scheduling Order [Doc. 35] deadline by moving to amend the pleadings and to join additional parties in compliance with Fed.R.Civ.P. 15(a).” Motion for Leave to Substitute Second Amended Complaint Reply at 1. Accordingly, the Motion for Leave to Substitute Second Amended Complaint Reply explained that the

Plaintiff's deadline to move to amend the pleadings and to join additional parties is April 30, 2016. The three (3) proposed joining plaintiffs had a deadline to file an appeal from the Human Rights Department or the Employee Equal Opportunity Commission before February 24, 2016 and February 30, 2016, and therefore it is critical that this Court grant Plaintiff's motion for leave to amend to adjoin these additional three (3) plaintiffs. If the Court does not grant Plaintiff's motion to amend the complaint the three (3) additional Plaintiffs' will be forced to file a new lawsuit and bring Defendant into separate proceedings and waste the Court's valuable time and resources.

         Motion for Leave to Substitute Second Amended Complaint Reply at 2. Thus, according to the Motion for Leave to Substitute Second Amended Complaint Reply, Benavidez would, “[u]pon the Court's decision on Defendants' motion to dismiss, . . . again amend their second amended complaint to properly reflect the court's decision if it alters the ability to bring any of the claims.” Motion for Leave to Substitute Second Amended Complaint Reply at 2. Benavidez also provided that the “Proposed Joining Plaintiffs request this Court to allow them to pursue their right to adjoin and appeal their decisions of the Employee Equal Opportunity Commission and the Human Rights Department.” Motion for Leave to Substitute Second Amended Complaint Reply at 2.

         5. The Motion to Compel.

         Benavidez filed the Motion to Compel on May 2, 2016. See Motion to Compel at 1. In the Motion to Compel, Benavidez explains the timeline of the discovery requests and responses, see Defendant Sandia National Laboratories Responses to Plaintiff's First Set of Request for Production, filed May 2, 2016 (Doc. 52-1)(“Discovery Responses”), regarding the Motion to Compel. See Motion to Compel at 1-2. Benavidez explains that she served the Motion to Compel on Sandia Labs on March 8, 2016, and that Sandia Labs responded on April 11, 2016, and supplemented its response on April 13, 2016. See Motion to Compel at 1. According to Benavidez, on April 29, 2016, she reviewed Sandia Labs' Discovery Responses and “began good-faith communications to resolve specific disputes.” Motion to Compel at 1. Apparently the “Plaintiff filed this Motion in order to preserve her objections to Defendant's responses pursuant to D.N.M.L.R.-civ 26.6, but the parties continue[d] to discuss in good faith and hope to resolve these matters.” Motion to Compel at 1 (emphasis in original).

         Benavidez then addresses her requests to which Sandia Labs had objected before she filed the Motion to Compel. See Motion to Compel at 2 (explaining that, in its Discovery Responses, Sandia Labs objects to Benavidez' Requests for Production (“RFP”) Nos. 2, 7, 9, 11, 12, 19, 23, 24 and 28). According to Benavidez, RFP No. 2 states: “Please provide a copy of any job evaluations given to Linda Benavidez during her entire duration of employment with Sandia National Laboratories, ” and Benavidez argues that, although Sandia Labs produced three evaluations, she believes there must be more. Motion to Compel at 3. Then turning to RFP Nos. 7, 9, and 24, Benavidez explains that each of those three requests regards “statements relating to the lawsuit or investigations” and that Sandia Labs responded only that it had no such discovery to produce. Motion to Compel at 3-4 (referencing Discovery Responses at 2). Benavidez argues such a response is inadequate, because Sandia Labs instead needs to specifically disavow the existence of any investigation regarding Benavidez' case should there really be no investigation. See Motion to Compel at 4.

         Benavidez next addresses her RFP No. 11, which requests “all contracts and subcontracts from 2008 through present regarding the work performed at Sandia National Laboratories in the Neutron Generator field, ” and to which Sandia Labs objects, because such was not relevant and, further, because such was proprietary. Motion to Compel at 5 (referencing Discovery Responses at 3). According to Benavidez, however, the content that RFP No. 11 requests is relevant to her claims, because the “National Nuclear Security Administration made significant decisions that directly impacted Sandia Neutron Generator, ” and these “decisions and new product families should be reflected in the contracts, ” meaning that Sandia Labs was also “required to adhere to certain requirements in its government contracts, likely including security clearances and training for employees who would be working on the contracts, ” which are relevant to Benavidez' claims regarding the change in educational requirements for the job she held. Motion to Compel at 5.

         Regarding Sandia Labs' objection as to the requested items' proprietary nature, Benavidez assures the information will remain private. See Motion to Compel at 5-6. Next, Benavidez explains that RFP No. 12 requests “all correspondence, notes, memoranda, e-mails, faxes, or records of conversations between Sandia National Laboratories management and employees or doctors regarding Ms. Benavidez between 2011 through present.” Motion to Compel at 11. According to Benavidez, Sandia Labs objects to RFP No. 12, because it is overbroad, and thus Benavidez now uses her Motion to Compel to narrow the request to a specific set of eighteen individuals. See Motion to Compel at 6.

         Benavidez' Motion to Compel then turns to her RFP No. 19, which requests “copies of job postings or any available job openings within Sandia National Laboratories from 2014 to present.” Motion to Compel at 6. Benavidez explains that Sandia Labs responds to RFP No. 19 by stating:

Request No. 19 is overly broad, and the burden and expense of producing the requested information far outweighs the likely benefit of the requested information. Sandia had thousands of posted job openings during the requested time period, a large number of which required advanced degrees or other qualifications that Plaintiff does not possess. Additionally, Plaintiff had access to all job postings up to the date of her separation, and to the majority of open positions since her separation which were posted on Sandia's external website.

Motion to Compel at 5-6 (citing Discovery Responses at 5). Benavidez then uses her Motion to compel to argue that she has requested only one year of job postings -- the year which corresponds to her employment's realignment within Sandia Labs -- which is relevant to her claims regarding Sandia Labs' accommodation of Benavidez and its attempts to secure her different employment in a “suitable position.” Motion to Compel at 7.

         Next, Benavidez addresses her RFP No. 23, which requests that Sandia Labs “provide a description, make and model, and photographs of all vehicles in the Sandia National Laboratories commercial pool.” Motion to Compel at 7. Benavidez argues that, although Sandia Labs objects to this request on the basis of relevance and burden, she was forced to “take a job in maintenance support, in the motor pool, ” and that RFP No. 23 will yield information that will help her demonstrate that she was not physically capable to perform that job. Motion to Compel at 7 (referring to Discovery Responses at 6). Last, Benavidez argues in favor of her RFP No. 28, which requests “[a]ll correspondence between Sandia National Laboratories and the union that relate to the changes made to the job qualifications required of the Neutron Generator position.” Motion to Compel at 7. According to Benavidez, Sandia Labs' document responding to RFP No. 28 “is missing at least one page, because it is not complete, ” and the Court should thus order production of the “entire letter.” Motion to Compel at 7.

         6. The May 16, 2016, Hearing.

         The Court held a hearing on May 16, 2016. See Transcript of Hearing, taken May 16, 2016 (“May Tr.”).[4] At the May 16, 2016, hearing, the Court had not yet issued its Preemption MOO, and thus the parties determined that it may be premature to hear Benavidez' Motion for Leave to Substitute Second Amended Complaint. In that respect, the Court instructed Benavidez to “make your own decision whether you want to file separate cases” given the proposed addition of new Plaintiffs, and

if you need to file separate cases, you can. If I get the opinions out and you want to bring it back here, us pick this up, I'll just hold this for the time being, I won't rule on it, and then you can make a decision. You'll just have to be the judge of your own time.

May Tr. at 6:7-16 (Court). The briefing was not complete on the Motion to Compel, so Benavidez also addressed the Court: “Judge, we have actually be[en] conversing regarding some discovery issues and we will be I believe upon consent of the defense contacting you. We've narrowed down some issues and we're hoping to have your ear in regards to a couple of the foundation of the discovery issues.” May Tr. at 7:7-12 (Wray).

         7. The August 25, 2016, Hearing.

         The Court thereafter held a hearing on August 25, 2016. At the hearing the Court addressed, in part, the Motion for Leave to Substitute Second Amended Complaint. See Transcript of Hearing at 2:4-5, taken August 25, 2016 (Court)(“Tr.”). Regarding that motion, the Court reminded the parties:

We started a hearing and I tried to work out an agreement [where] we could have the motion to dismiss that was pending [--] and I have not been able to get the opinion out [--] [and the opinion] would apply to all the new people, but we weren't able to reach that agreement. So we adjourned that hearing for motion for leave to amend the complaint.

Tr. at 2:4-11 (Court). The Court continued: “I finished my work on that opinion, so where are we on the motion for leave to amend? Do you still want to file this complaint?” Tr. At 2:11-14 (Court). Benavidez responded that she wished to argue in favor of the Motion for Leave to Substitute Second Amended Complaint and Supplemental Briefing, and that one reason that the Proposed Second Amended Complaint still contains the state claims that the Court has dismissed is because

[t]he February amended complaint was designed to become a federal complaint. It was designed to contain the allegations [] necessary not just to bring forth the state claims that are pending, but also to bring those [] federal claims. And the intent has been to include everything in this amended complaint so we're not hiding the ball so we do not have to amend again . . . .

Tr. at 4:4-17 (Girard). Further, with respect to why Benavidez filed the Motion for Leave to Substitute Second Amended Complaint instead of waiting for the Preemption MOO, Benavidez indicated that “we had three additional plaintiffs to add who had been issued their right to sue letters, and they had a statutory deadline to meet.” Tr. at 3:14-24 (Girard). The Court was hard pressed, however, to understand “why go through all that motion if I spent a lot of time dealing with the []motion to dismiss, why put them all back in the case[.] I just don't get that.” Tr. at 4:18-21 (Court). The Court thus asked Benavidez if she has “a complaint that you can propose to the Court and parties that conforms to the Court's opinion, ” Tr. at 5:1-3 (Court), to which Benavidez replied that she could “prepare that pretty quickly, ” Tr. at 5:4-5 (Girard).

         Sandia Labs then addressed the Court, arguing that its “primary objections are the same as the courts, which is that they include and in some instances double down on the state law claims which you have already dismissed.” Tr. at 7:22-25 (Poore). Benavidez then interjected and explained that “what I would like, at the end of this process, [is] for a ruling that makes clear or a complaint that makes clear that the new plaintiffs are also subject to the Court's prior ruling.” Tr. at 10:13-17 (Girard). To achieve this goal, Benavidez explained that what she proposes is to

file this complaint as written, followed by the order that says that the Court's ruling applies to all plaintiffs, the Court's previous ruling in the motion to dismiss applies to all plaintiffs and claims in this complaint. We thought that that satisfied it and made it easier, but obviously it has not . . . .

Tr. at 10:21-11:5 (Girard). Benavidez then reiterated that she simply wanted a clean slate, with a federal-court complaint that alleges both her original state claims and the new federal claims; that includes herself and the three additional Plaintiffs; and that in no way did she expect that the Preemption MOO would not to apply to that new complaint or to the additional Plaintiffs. See Tr. at 11:18-25 (Girard).

         Accordingly, Benavidez apologized for causing the Court frustration and stated that, because there was not a complaint before the Court at the present time, she further was not prepared to argue her Motion to Compel, which the Court had attempted to have her argue. See Tr. at 13:1-6 (Girard). The Court thus took the Motion to Compel under advisement, without hearing argument, and stated it would “get an opinion out to you and an order denying your motion to amend and then we'll figure out how to go from there.” Tr. at 13:7-13 (Court). Upon giving the parties one last chance to address the Court, Sandia Labs provided:

Your Honor, I do want to make sure we're also being transparent that if the motion to amend is denied, it would be our understanding that at least many of the federal claims on the additional three plaintiffs would be outside the statute of limitations. So when I indicated that we weren't filing a motion to dismiss on the federal claims that was based on this. I don't want to say that that would be our position for a third amended complaint.

Tr. at 13:15-24 (Poore). Benavidez then took the opportunity to reiterate that the statutory deadline which Sandia Labs mentioned was one of the motivating factors in filing the Motion for Leave to Substitute Second Amended Complaint as it did and when it did. See Tr. At 14:1-9 (Girard). The Court then denied the Motion for Leave to Substitute Second Amended Complaint “as to the way it's filed.” Tr. at 14:10-11 (Court).

         8. The Motion to Compel Response.

         Sandia Labs responded to the Motion to Compel with its Response of Defendant Sandia National Laboratories to Plaintiff's First Motion to Compel Production of Documents, filed May 18, 2016 (Doc. 55)(“Motion to Compel Response”). Sandia Labs first argues that the Motion to Compel “should be denied because she did not confer in good faith before filing.” Motion to Compel Response at 1. According to Sandia Labs, “[n]o pre-motion good faith conference occurred in this case because Plaintiff did not allow for it, ” and,

[t]he first time Sandia learned that Plaintiff had any concerns about Sandia's responses to her first requests for production was on Friday, April 29, 2016, when an assistant for one of Plaintiff's lawyers emailed a letter to defense counsel with the statement that the attached letter was Plaintiff's good faith attempt to resolve a discovery dispute.

Motion to Compel Response at 2 (referencing Email from Debbie Grant to Justin Poore and Aaron Viets at 1-6 (dated April 29, 2016), filed May 18, 2016 (Doc. 55-1)(“Benavidez' April 29, 2016, Email”). According to Sandia Labs, the “email's time stamp is 10:24 a.m., ” and indicated that Benavidez “took issue with nine of Sandia's discovery responses and stated that she would be moving to compel on Monday, May 2, 2016, ” citing “Local Rule 26.6, which was nearly expired.” Motion to Compel Response at 2.

         Sandia Labs then provides that “[d]efense counsel responded promptly, ” and that “at 1:55 p.m. on the afternoon of Friday, April 29, 2016, Sandia . . . offered to extend the Local Rule 26.6 deadline by one week to allow time for the parties to actually confer and then engage the Court only if necessary after that.” Motion to Compel Response at 2 (citing Email from Mr. Poore to Mr. Viets, Rachel Berenson, Rachel Higgins, Jane Girard, Katherine Wray, et. al., at 7 (dated April 29, 2016), filed May 18, 2016 (Doc. 55-1)(“Sandia Labs' April 29, 2016, Email”)). As a result of that colloquy, Sandia Labs provides that the parties held a conference on May 3, 2016, which was productive with respect to some of Benavidez' discovery requests. See Motion to Compel Response at 2-3. Sandia Labs explains, however, that Benavidez nonetheless “refused Sandia's offer to extend the motion filing deadline and had gone ahead and filed her [Motion to Compel].” Motion to Compel Response at 3. Sandia Labs also explains that the Motion to Compel “accuses Sandia of failing to explain its objections” in its Discovery Responses, which Sandia Labs argues is “true, ” but only “because she never gave Sandia a chance to do so before filing her [Motion to Compel].” Motion to Compel Response at 3. Sandia Labs argues that Benavidez thus filed her Motion to Compel without her engaging in a meaningful, good-faith conference, and she has “wasted time, energy, and resources of the parties and the Court, ” because much of the Motion to Compel “is now moot.” Motion to Compel at 3-4.

         Sandia Labs, accordingly, next addresses the two RFPs that it argues are still live and that its colloquy with Benavidez has not mooted: RFP No. 19 and RFP No. 23. See Motion to Compel Response at 5-9. RFP No. 19 requests “copies of job postings or any available job openings within Sandia National Laboratories from 2014 to the present.” Motion to Compel Response at 5. Sandia Labs explains that it objected to this RFP in its Discovery Responses by arguing that such a request is overbroad and burdensome, because “most of the jobs responsive to Request for Production No. 19 required advanced degrees or other qualifications (such as physical abilities) that Plaintiff . . . did not possess.” Motion to Compel Response at 5-6. Sandia Labs also explains that, in Benavidez' Motion to Compel, she “misstates the scope of her request, saying she only asked for one year's worth of responsive material . . . and she has since offered to narrow the timeframe to ‘the time that Plaintiff was being put into the motor pool [and] . . . the time leading up to Plaintiff's termination.” Motion to Compel Response at 6 (quoting Email from Ms. Wray to Mr. Poole and Mr. Viets (dated May 13, 2016), filed May 18, 2016 (Doc. 55-1)(“Benavidez' May 13, 2016, Email”)(narrowing the scope to July 2, 2014, until April 17, 2015)). In its Motion to Compel Response, Sandia Labs nonetheless maintains its argument of overbreadth and burden, and adds its objection for relevance, because “the discovery is addressed to a non-existent issue. Sandia had no legal obligation to find another job for Plaintiff, which exposes the request for the fishing expedition that it is.” Motion to Compel Response at 6. Sandia Labs further emphasizes that “[r]etaliatory failure-to-hire cases first begin with a job application or the like from the plaintiff . . . [and] Sandia is aware of no case from this jurisdiction . . . holding that it is retaliation for an employer not to award a current employee a new job that she herself never sought.” Motion to Compel Response at 6-7.

         Sandia Labs then explains that these job postings were available to Benavidez while she was at Sandia Labs and that her failure to apply has nothing to do with Sandia Labs' conduct. See Motion to Compel at 7. Further, although Sandia Labs maintains an objection as to the relevance of the job postings to which Benavidez applied -- eleven in total -- Sandia Labs explains that it nonetheless produced responsive documents regarding those eleven jobs. See Motion to Compel Response at 7. Last, Sandia Labs argues that “the volume of material at issue and the burden of gathering it, even if the time period is narrowed to July 2, 2014 through April 17, 2015, ” is immense, and “is not simply a matter of typing in a date range then pushing a button or two.” Motion to Compel Response at 7. Accordingly, Sandia Labs resists RFP No. 19 under rule 26(b)(1) of the Federal Rules of Civil Procedure.

         Sandia Labs next addresses RFP No. 23, wherein Benavidez requests “a description, make and model, and photographs of all vehicles in the Sandia National Laboratories Commercial pool.” Motion to Compel Response at 8. Sandia Labs explains that it objected to RFP No. 23 in its Discovery Responses, because “producing this information [i]s not relevant and [is] burdensome.” Motion to Compel Response at 8. According to Sandia Labs, “Plaintiff has since offered to narrow the request only to vehicles that Plaintiff was expected to operate.” Motion to Compel at 8 (referencing Benavidez' May 13, 2016, Email). Sandia Labs states, however, that the “Plaintiff would be expected to operate all of the approximately 3, 000 vehicles and pieces of equipment that Sandia's Fleet Services Department manages, ” making RFP No. 23 an overly burdensome request. Motion to Compel Response at 8. Sandia Labs also contends that RFP No. 23 is, further, irrelevant, because photographs of vehicles will not “demonstrate that she was not physically able to perform” her job. Motion to Compel Response at 9.

         Next, Sandia Labs argues that it “should be awarded its expenses, ” stating:

Under Rule 37(a)(5)(B), Sandia asks that the Court award Sandia its expenses incurred in opposing the Motion because so much of the Motion proved to be unjustified and because Plaintiff filed it without first conferring in good faith. Plaintiff's headlong rush to Court is set forth above, as is the lack of justification for two parts of the motion. Plaintiff's complaints about the other seven requests for production were so obviously unjustified and would almost certainly not have been incorporated into the Motion, if Plaintiff had simply conferred first as was her duty.

         Motion to Compel Response at 9. Sandia Labs then explains how it resolved its objections to the now-moot RFPs, and why a good-faith conference and Benavidez' acceptance of its offer to extend the motion deadline by a week would have negated the necessity of filing the Motion to Compel. See Motion to Compel Response at 9-11. Thus, Sandia Labs argues that “[l]arge portions of Plaintiff's Motion could have and should have been resolved before she filed it, and none of it was justified, much less substantially justified, ” and that, “if a motion to compel is denied, and after the opportunity to be heard, the Court must require the movant or movant's attorney or both to pay the non-movant's reasonable expenses incurred in opposing the motion, including attorney's fees.” Motion to Compel Response at 11 (citing Fed.R.Civ.P. 37(a)(5)(B))(internal quotations omitted). Sandia Labs notes, however, that “the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” Motion to Compel Response at 11 (citing rule 37(a)(5)(B)). According to Sandia Labs, the United States Court of Appeals for the Sixth Circuit has held that fees and expenses may be awarded in a situation where a motion to compel was filed before the parties conferred, and that a motion to compel was not substantially justified. See Motion to Compel at 11 (citing Interactive Prods. Corp. v. a2z Mobile Office Solutions, Inc., 326 F.3d 687, 700-01 (6th Cir. 2003)). In conclusion, Sandia Labs reiterates that although Benavidez “may argue that she had to file her Motion to beat the Local Rule 26.6 deadline, ” Sandia Labs had offered to extend that deadline by a week, and Benavidez declined. Motion to Compel at 11.

         9. The Motion to Compel Reply.

         Benavidez replied to the Motion to Compel Response with the Plaintiff's Reply to Defendant's Response to Motion to Compel, filed June 6, 2016 (Doc. 61)(“Motion to Compel Reply”). The Motion to Compel Reply begins with Benavidez' argument regarding her “attempt to confer in good faith, ” where she argues that Sandia Labs' “request for monetary sanctions should be denied.” Motion to Compel Reply at 1. According to Benavidez, she filed the Motion to Compel to “maintain her right to object and in an attempt to resolve the party's discovery disputes, ” and, before filing, she claims that she suggested to Sandia Labs that “after timely filing her Motion to Compel, the parties attempt to resolve or narrow discovery issues prior to Defendant's response deadline, ” but that Sandia Labs chose to take a different path. Motion to Compel Reply at 1-2. Benavidez further explains that, after the May 2, 2016, conference with Sandia Labs -- wherein many of the items of discovery in the Motion to Compel were resolved --she told Sandia Labs that she intended to withdraw the Motion to Compel and file a substituted motion, which narrowed the issues for the Court. See Motion to Compel Reply at 2 (citing Email from K. Wray to J. Poore and A. Viets (dated May 3, 2016), filed June 6, 2016 (Doc. 61-1)(“Benavidez' May 3, 2016, Email”)). By email on May 13, 2016, Benavidez then reiterated this suggestion, and requested that Sandia Labs agree to undergo an informal discovery resolution process with the Court regarding the narrowed issues. See Motion to Compel Reply at 2 (citing Benavidez' May 13, 2016, Email). Benavidez argues that, ultimately, at a May 16, 2016, hearing for another matter in this case, she and Sandia Labs agreed at the hearing that they would be “attempting informal resolution, ” and that Sandia Labs did not maintain its agreement, because it instead filed its Motion to Compel Response. Motion to Compel Reply at 2. Benavidez thus contends that Sandia Labs -- and not her -- has evaded informal discovery resolution and that the Court therefore should not award fees. See Motion to Compel Reply at 3.

         Benavidez then turns to her RFP No. 19, and argues that

it seeks discovery directly related to Plaintiff's allegations that (1) there were available jobs for which Plaintiff was qualified and could have performed; and, (2) but for Defendant's retaliation and failure to abide by its promise and policy to provide assistance during the ...

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