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Kennicott v. Sandia Corp.

United States District Court, D. New Mexico

August 30, 2018

LISA A. KENNICOTT, LISA A. GARCIA, SUE C. PHELPS, and JUDI DOOLITTLE, on behalf of themselves and a class of those similarly situated, Plaintiffs,
v.
SANDIA CORPORATION d/b/a SANDIA NATIONAL LABORATORIES, Defendant.

          Rachel 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 JUDGE'S ORDER

         THIS 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 Fouratt's Order.

         PROCEDURAL BACKGROUND

         Plaintiffs 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”).[1] 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.

         The 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.

         On May 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 other party.

         RFP at 14. Sandia Labs objected to producing those documents, stating:

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.

         Defendant's 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).

         The 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”).[2] 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.

         1. The Motion.

         In the 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.[3] 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.

         2. The Response.

         Sandia 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.

         3. The Reply.

         The 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.

         4. The Hearing.

         Magistrate 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).

         Magistrate 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).

         Sandia 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).

         Following 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).

         Magistrate 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 (Shaver).

         The 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 argued:

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 (Court).

         Regarding 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 responded:

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 (Burkhardt).

         With 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).

         Magistrate 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 ...


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