United States District Court, D. New Mexico
LISA A. KENNICOTT, LISA A. GARCIA, SUE C. PHELPS, and JUDI DOOLITTLE, on behalf of themselves and a class of those similarly situated, Plaintiffs,
SANDIA CORPORATION d/b/a SANDIA NATIONAL LABORATORIES, Defendant.
Bien Outten & Golden LLP., Adam T. Klein Cheryl-Lyn
Bentley Elizabeth Stork Outten & Golden LLP., David Lopez
Outten & Golden LLP., Anne Brackett Shaver Kelly Maureen
Dermody Lin Yee Chan Michael Ian Levin-Gesundeheit Shira J.
Tevah Tiseme Gabrielle Zegeye Lieff Cabraser Heimann &
Bernstein, LLP. California Attorneys for the Plaintiffs.
Michael S. Burkhardt Grace E. Speights Krissy A. Katzenstein
Morgan, Lewis & Bockius LLP, Scott D. Gordon, Jeffrey L.
Lowry, Paola Viviana Jaime Stephanie Latimer, Theresa W.
Parrish Rodey, Attorneys for the Defendant.
MEMORANDUM OPINION AND ORDER OVERRULING THE
DEFENDANT'S OBJECTIONS AND AFFIRMING THE MAGISTRATE
MATTER comes before the Court on Defendant's
Objections to Magistrate Judge's Order Granting
Plaintiffs' Motion to Compel Production of Documents,
filed May 25, 2018 (Doc. 117)(“Objections”). The
primary issue is whether the Order Granting Plaintiffs'
Motion to Compel, filed May 14, 2018 (Doc.
112)(“Order”), issued by the Honorable Gregory J.
Fouratt, United States Magistrate Judge, exceeds the scope of
discovery that rule 26(b)(1) of the Federal Rules of Civil
Procedure established. For the following reasons, the Court
overrules the Objections and affirms Magistrate Judge
Lisa A. Kennicott, Lisa A. Garcia, and Sue C. Phelps sued
Sandia Corporation (“Sandia Labs”) on behalf of
themselves and a class of those similarly situated.
See Class Action Complaint, filed February 7, 2017
(Doc. 1)(“Complaint”). Judi Doolittle joined
them as a named plaintiff when the Plaintiffs amended their
Complaint. See First Amended Class Action Complaint,
filed July 5, 2018 (Doc. 146)(“Amended
Complaint”). In the Amended Complaint, the Plaintiffs
assert the following claims: (i) intentional discrimination
under Title VII of the Civil Rights Act of 1964, Pub. L. No.
88-352, 78 Stat. 241 (codified as amended at 42 U.S.C.
§§ 2000e to 2000e-15)(“Title VII”); and
(ii) disparate impact discrimination under Title VII.
See Amended Complaint ¶¶ 85-99, at 21-23.
Kennicott asserts individual Title VII claims for retaliation
and constructive discharge. See Amended Complaint
¶¶ 100-08, at 23-24.
Plaintiffs allege that Sandia Labs' Title VII violations
are based on a “continuing policy, pattern, and
practice of sex discrimination against female employees, with
respect to performance evaluations, pay, promotions, and
other terms and conditions of employment.” Complaint
¶ 1, at 1; Amended Complaint ¶ 1, at 1. The
Plaintiffs also allege that “Sandia's company-wide
policies and practices systematically violate female
employees' rights and operate in a corporate culture
infected with gender bias. The disadvantage to female
employees . . . is the regular and predictable result of
Sandia's policies and practices and lack of proper
accountability measures to ensure fairness.” Complaint
¶ 3, at 2. See Amended Complaint ¶¶
3-4, at 2. The alleged gender discrimination concerns
“(1) performance evaluations; (2) compensation; and (3)
promotions.” Complaint ¶ 23, at 5. See
Amended Complaint ¶¶ 26-40, at 6-9.
19, 2017, the Plaintiffs requested several sets of documents
from Sandia Labs. See Plaintiffs' First Set of
Requests for Production of Documents at 14 (dated May 19,
2017), filed March 5, 2018 (Doc. 94-1)(“RFP”).
One such set of documents, RFP No. 21, is:
All DOCUMENTS (including but not limited to investigation
files, logs, OR databases) that REFER OR RELATE TO internal
requests, inquiries, demands, claims, grievances, concerns,
protests, OR complaints, made by DEFENDANT'S applicants,
employees, AND/OR managers against DEFENDANT, REFERRING OR
RELATING TO unfair treatment against any woman, including
gender discrimination, sexual harassment, pregnancy
discrimination, hostile work environment, AND/OR retaliation,
including investigations of such requests, inquiries,
demands, claims, grievances, concerns, protests, AND/OR
complaints. This document request includes but is not limited
to internal requests, inquiries, demands, claims, grievances,
concerns, protests, OR complaints directed to DEFENDANT'S
Human Resources, Ethics, Ethics' hotline, Ombuds, OR
Equal Employment Opportunity/Affirmative Action departments.
This document request includes all forms of
communications-either in writing or orally (where such
COMMUNICATIONS have been taped, logged, noted AND/OR
investigated and described through records of the
investigation), formal or informal, to DEFENDANT or to any
14. Sandia Labs objected to producing those documents,
Defendant objects to Request No. 21 on the grounds that it is
overbroad and unduly burdensome, not proportional to the
needs of the case, and seeks information that is neither
relevant to the claims in the Complaint nor reasonably
calculated to lead to the discovery of admissible evidence.
In that regard, this Request is objectionable in seeking
“all documents” as well as information regarding
complaints of sexual harassment, pregnancy discrimination,
hostile work environment, retaliation, and hiring
discrimination as the Complaint does not assert such claims
on a class-wide basis. Further, this Request seeks
information not limited to the relevant temporal period.
Defendant also objects to this Request on the grounds that it
is vague and ambiguous, including with respect to the phrase
“internal requests, inquiries, demands, claims,
grievances, concerns, protests.” Defendant further
objects to this Request to the extent it seeks information of
a personal, proprietary or confidential nature to Defendant
and/or Defendant's current, former and prospective
employees. Finally, Defendant objects to this Request to the
extent that it seeks information protected from disclosure by
the attorney-client privilege, work product doctrine, and/or
any other applicable immunity or privilege.
Objections and Responses to Plaintiffs' First Set of
Requests for Production of Documents at 20-21 (dated July 10,
2017), filed March 19, 2018 (Doc. 100-1).
Plaintiffs and Sandia Labs conferred concerning RFP No. 21
for over seven months until January 31, 2018, when Sandia
Labs produced a complaint log summarizing internal complaints
of gender discrimination that contained thirty-one entries.
See Motion to Compel Production of Documents at 2,
filed March 5, 2018 (Docs. 92 and
93)(“Motion”). The complaint log did not contain
entries for complaints concerning sexual harassment, hostile
work environment, pregnancy discrimination, or retaliation.
See Motion at 2. After confirming that Sandia Labs
was not willing to produce the complaints and full
investigation files, the Plaintiffs filed their Motion.
See Motion at 2.
Motion, the Plaintiffs argue that Sandia Labs must
“produce employee complaints related to sexual
harassment, pregnancy discrimination, hostile work
environment, and retaliation, ” and “the full
complaint investigation files” rather than
summaries. Motion at 1. The Plaintiffs contend
that the complaints are relevant because “they show a
pattern or practice of discrimination.” Motion at 3.
Specifically, the Plaintiffs assert that the rubric of
“gender discrimination” includes sexual
harassment, pregnancy discrimination, hostile work
environment, and retaliation. Motion at 4. Further, the
Plaintiffs emphasize that the requested discovery is
necessary for establishing their class disparate-treatment
claim. See Motion at 6.
Labs responded. See Defendant's Opposition to
Plaintiffs' Motion to Compel Production of Documents at
1, filed March 19, 2018 (Doc. 99)(“Response”).
Sandia Labs argues that discovery is limited to the
pleadings' claims and defenses. See Response at
3. According to Sandia Labs, the internal complaints related
to sexual harassment, pregnancy discrimination, hostile work
environment, and retaliation are irrelevant to the
Plaintiffs' claims -- which focus on performance
evaluations, compensation, and promotions -- because sexual
harassment, pregnancy discrimination, hostile work
environment, and retaliation are separate and discrete
theories of liability that the Plaintiffs do not plead.
See Response at 4. Sandia Labs also argues that
proportionality counsels against production of the internal
complaints. See Response at 8-9.
Plaintiffs replied. See Plaintiffs' Reply in Support of
Motion to Compel Production of Documents, filed April 2, 2018
(Doc. 107)(“Reply”). The Plaintiffs argue the
documents they request are relevant to their claims.
See Reply at 2-3. The Plaintiffs also argue that
Sandia Labs did not sufficiently substantiate its objection
based on undue burden. See Reply at 10.
Judge Fouratt held a hearing on the Motion on May 2, 2018. He
first concluded that the Plaintiffs bore the burden of
proving relevance based on this Court's decision in
Landry v. Swire Oilfield Servs., L.L.C., 323 F.R.D.
360 (D.N.M. 2018)(Browning, J.). In Landry v. Swire
Oilfield Servs., L.L.C., the Court stated that,
following the 2015 amendment of Federal Rule of Civil
Procedure 26(b)(1), “[t]he burden of demonstrating
relevance remains on the party seeking discovery, and the
newly revised rule ‘does not place on the party seeking
discovery the burden of addressing all proportionality
considerations.'” Landry v. Swire Oilfield
Servs., L.L.C., 323 F.R.D. at 381 (quoting Fed.R.Civ.P.
26(b)(1) advisory committee's notes to 2015 amendment).
Judge Fouratt also clarified that, while the Plaintiffs do
not allege a class claim for retaliation, the Plaintiffs view
Sandia Labs' alleged pattern and practice of retaliating
against female employees who complain of gender
discrimination as a “predicate” to their
“intentional discrimination or pattern and practice
class claim[.]” Transcript of Hearing on Motion to
Compel at 19:8-20 (Court)(taken May 2, 2018), filed May 18,
2018 (Doc. 114)(“Tr.”). According to the
Plaintiffs, their intentional discrimination claim can be
characterized as a disparate treatment claim under Title VII.
See Tr. at 20:11-22 (Shaver). Further explaining the
Plaintiffs' view that complaints concerning sexual
harassment, hostile work environment, pregnancy
discrimination, and retaliation are relevant to the
Plaintiffs' class claims, the Plaintiffs' counsel
stated: “So it's underneath this disparate
treatment theory that the evidence of retaliation, and all of
the other, frankly, sexual harassment, pregnancy
discrimination, hostile work environment, all these types of
complaints become relevant, not because retaliation is itself
a class claim.” Tr. at 21:19-23 (Shaver).
Labs countered by emphasizing that retaliation is
substantively different from “other forms of
discrimination, ” because retaliation has “a
completely different burden structure[, ]” and that
“pattern and practice” is not a claim, but is
“a method of proof of a particular type of
discrimination claim[.]” Tr. at 22:6-24 (Burkhardt).
The Plaintiffs later clarified that, “the reason for us
requesting these types of complaints, including sexual
harassment, pregnancy discrimination, hostile work
environment, and retaliation for complaining about any of the
above, is because they are all forms of gender
discrimination.” Tr. at 23:11-16 (Shaver). Sandia Labs
emphasized that gender discrimination in pay, promotions, and
evaluations does not constitute “a claim of
retaliation, ” and that Sandia Labs is not on notice
that it faces a class claim of retaliation. See Tr.
at 24:20-25:11 (Burkhardt).
this discussion, Magistrate Judge Fouratt concluded that
Plaintiffs satisfied their burden of proving the relevance of
complaints relating to retaliation:
My decision on this is simply limited to whether the
Plaintiffs have carried their burden of showing that evidence
of retaliation, at least as it relates to the . . . forms of
gender discrimination described in paragraph one [of the
Plaintiffs' Complaint], which, to me, means classic
gender discrimination. I think they've carried their
burden. I think they have shown me that it is relevant under
the discovery analysis -- not the Motion to Dismiss analysis,
but the discovery analysis.
Tr. at 27:6-15 (Court).
Judge Fouratt then invited the Plaintiffs to explain how
“complaints and investigation files that relate to
claims of sexual harassment, hostile work environment,
pregnancy discrimination, and retaliation for complaining
about those three varieties of gender discrimination, are
relevant to your lawsuit.” Tr. 30:21-25 (Court). The
Plaintiffs explained that “this evidence goes to our
ability to meet our prima facie case of significant proof of
a [discriminatory] standard operating procedure.” Tr.
at 32:1-3 (Shaver). According to the Plaintiffs, the disputed
evidence is particularly relevant to satisfying the
commonality requirement for their class disparate treatment
claim. See Tr. at 32:11-13. The Plaintiffs also
argued that the evidence they seek, including the full
investigation files for the complaints, is relevant to
Sandia's affirmative defenses. See Tr. at
32:13-33:6 (Shaver). The Plaintiffs reiterated that
“these internal complaints are going to be evidence,
class-wide evidence, of intentional discrimination, and will
go to the issue of significant proof.” Tr. at 35:16-19
Plaintiffs also confirmed their theory that pregnancy
discrimination, in Magistrate Judge Fouratt's words,
“manifested itself in [the female employees']
performance evaluation, pay, and promotion[.]” Tr. at
36:10-15 (Court). Sandia Labs responded that, “[t]here
is not a single allegation in this Complaint that even
remotely suggests” that a female employee's
“performance rating was affected” because of
their pregnancy. Tr. at 38:7-10 (Burkhardt). Sandia Labs
reiterated that the Plaintiffs' “assertion is that
somehow the performance rating system is flawed, or not
validated. That has nothing to do with any assertion related
to pregnancy discrimination.” Tr. at 38:15-18
(Burkhardt). Regarding the Plaintiffs' burden of proof
for their class disparate treatment claim, Sandia Labs
There's no such thing as a generic gender discrimination
claim. You have to identify a policy or practice to assert a
claim. You have to show that “I was treated differently
in a promotion, and I can show that a similarly-situated man
was promoted over me, and maybe it's because I was
pregnant, or I wasn't, and that's the reason.”
Tr. at 38:24-39:4 (Burkhardt). Magistrate Judge Fouratt then
stated that, “there can be relevant evidence for
discovery purposes that -- that we can't tie directly to
a paragraph or a sentence in a complaint, and yet, it's
still relevant, and that's what I'm -- that's
what I'm trying to figure out.” Tr. at 39:13-17
sexual harassment, Magistrate Judge Fouratt asked the
Plaintiffs what “the modicum of factual support”
is that supports their theory that female employees who have
complained about sexual harassment are then discriminated
against through performance evaluations, pay, and promotions.
Tr. at 40:7-19 (Court). The Plaintiffs pointed to
Kennicott's case and its facts, and stated that
“any complaints about sexual harassment are complaints
about gender discrimination, ” assuming that the victim
of that sexual harassment is female. Tr. at 40:1-8 (Shaver).
Magistrate Judge Fouratt stated that it concerned him that
the Plaintiffs had not alleged a cause of action for sexual
harassment, whether individually or on behalf of a class.
See Tr. at 41:24-42:4 (Court). The Plaintiffs
But there is a cause of action for sex discrimination, and
sexual harassment is a type of sex discrimination. And so,
since our -- our burden of proof here is to prove a -- our
intentional discrimination claim is to prove a pattern and
practice of sex discrimination. If there are forms of sex
discrimination taking place, be it sexual harassment, or
pregnancy discrimination, those are relevant.
Tr. at 42:5-12 (Shaver). Sandia Labs objected to this
statement, arguing that nothing in the Complaint
“suggests that the reason why they're claiming
there's discrimination in pay or promotions or
performance rating is because of sexual harassment, or the
failure to address the claim of sexual harassment, or a claim
of retaliation, for that matter.” Tr. At 44:18-24
respect to “evidence that female employees at Sandia
who complain about sexual harassment thereafter have their
performance evaluations downgraded, which affects their pay,
and their prospects for promotion[, ]” Magistrate Judge
Fouratt asked Sandia Labs whether that evidence is relevant
in this case. Tr. at 45:15-21 (Court). Sandia Labs responded
that such evidence is not relevant, because the Plaintiffs
did not make that allegation in their Complaint. See
Tr. at 45:22-25 (Burkhardt). The Plaintiffs asserted that
sexual harassment evidence is relevant, because
if there's evidence in front of the trier of fact that
the company has a -- an ineffective HR complaint system, or
that HR retaliates against employees who complain, or that
there's rampant sexual harassment, or the absence of any
of those things would go to [D]efendant's case, that is
absolutely going to be relevant to the question of whether
there's intentional discrimination against women in pay,
promotions, and performance evaluations. You can't
separate those things out.
Tr. at 47:20-48:3 (Shaver). Sandia Labs responded that,
it can't be the case that you get to assert a complaint,
and all you get to say is --all you have to say, really, is
-- there are women, and there's discrimination. And
that's enough. Give us discovery. That would really
eliminate relevance as being meaningful in the circumstances
where all you say is gender discrimination, and you get
anything related to every form of gender discrimination.
Tr. at 49:3-10 (Burkhardt).
Judge Fouratt also asked Sandia Labs about the
Plaintiffs' argument that the discovery they seek is
relevant to several of Sandia Labs' affirmative defenses.
See Tr. at 50:3-6 (Court). Sandia Labs responded
that those affirmative defenses concerned only the
Plaintiffs' claim for punitive damages. See Tr.
at 50:8-11 (Burkhardt). Sandia Labs further stated that any
evidence it would present at trial regarding the affirmative
defenses at issue would not ...