Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________
)
BLANCA ZELAYA, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-2311 (RCL) )
UNICCO SERVICE COMPANY, et al. , )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
This matter comes before the Court on plaintiff Blanca Zelaya’s Motion to Compel [43]. Upon consideration of the motion, the opposition and reply thereto, and the entire record herein, the Court concludes that plaintiff’s motion should be denied with respect to Document Request No. 12 and Interrogatory No. 6 with conditional leave to file an renewed motion to compel. Furthermore, plaintiff’s motion will be granted with respect to all of the requested privilege log documents, except for privilege log document 20, and plaintiff will be granted conditional leave to file a renewed motion to compel. I. BACKGROUND
Plaintiff Blanca Zelaya brought this action against her former employer UNICCO Service Company and her former supervisor Carlos Alarcon. She alleges discrimination and retaliation against her based on her gender. ( See generally Compl. ¶¶ 15–60.) In the motion before the Court, she seeks to compel production of documents she requested from defendants during discovery. (Pl.’s Mem. of P. & A. [43-1] at 1.)
Two groups of documents are currently at issue. First, plaintiff’s Interrogatory No. 6 and Document Request No. 12 demand all claims of gender discrimination against UNICCO and its employees from January 1, 2004 until the time of the discovery request, January 9, 2009. (Pl.’s First Req. for Produc. of Docs. [43-3] at 5, 12; Pl.’s First Set of Interrogs. [43-4] at 4, 8–9.) In their response of February 27, 2009, defendants objected to plaintiff’s request as overbroad. (Defs.’ Resps. to Req. for Produc. [43-5] at 15–16; Defs.’ Resps. to Interrogs. [43-6] at 23–25). The parties subsequently agreed to limit discovery of gender discrimination claims to UNICCO’s East Region, which includes the area where plaintiff was employed, Washington, D.C. (Defs.’ Opp. [44] at 5; Pl.’s Reply [47] at 13.) They also limited the temporal scope of discovery to the term of plaintiff’s employment with UNICCO. ( Id. ) Defendants submitted supplemental responses on May 8, 2009 (Defs.’ Supplemental Resps. to Req. for Produc. [43-7]), in which they produced what they claim are the only three allegations of sexual harassment that conform to the parties’ discovery agreement. (Defs.’ Opp. [44] at 8.)
Plaintiff now desires company-wide complaints, in particular those that were handled in whole or in part by supervisors in UNICCO’s Boston headquarters. (Pl.’s Mem. of P. & A. [43-1] at 13–14.) Additionally, defendants redacted names from the three claims they produced, and plaintiff requests unredacted versions of those documents. (Pl.’s Reply [47] at 14.) The parties have engaged in discussion via letter and telephone conference to resolve the disputes at issue here. (Letters between Counsel [43-9]; Defs.’ Opp. [44] at 5 n.4.) Defendants object that plaintiff’s request is overbroad and encompasses irrelevant material. (Defs.’ Opp. [44] at 6–9.) They further argue that plaintiff’s request violates their existing discovery limitation agreement. ( at 5–6.)
The second area of dispute encompasses sixteen documents over which defendants assert the attorney-client privilege. [1] (Pl.’s Mem. of P. & A. [43-1] at 1, 9– 12.)
II. DISCUSSION
A. Inte rrogatory No. 6 an d Document Request No. 12
1. Legal Standard
Federal Rule of C ivil Procedure 26(b) sets forth the applicable standard for permitt ing discovery:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense . . . . Relevant information need
n
ot be admissible at the trial if the discovery appears reasonably calculated
to lead to the discovery of admissible evidence. F ED . R. C IV . P. 26(b)(1).
Thus, the “general rule in legal actions is to favor broad disclosure.”
CFTC v. McGraw-
Hill Cos.
,
The parties frame their arguments within the inquiry of whether “other
supervisor” evidence—evidence of “discrimination [against non-parties] at the hands o
f
supervisors of the defendant company who played no role in the adverse employment
decision challenged by the plaintiff”—is relevant in this case and therefore discove
rable.
*4
Sprint/United Mgmt. Co. v. Mendelsohn
,
Within the “other supervisor” evidence inquiry lies the question of whether, in a non-class action employment discrimination suit, the plaintiff may obtain discovery of information from outside the uni t that employed her. The decision in Owens v. Sprint sets for th the relevant standard:
In the absence of any evidence that there were hiring or firing practices and procedures applicable to all the employing units, discovery may be limited to plaintiff's employing unit. Discovery may be expanded fro m the Plaintiff's employing unit, however, if the plaintiff can show the requested information is “particularly cogent” to the matter or if the plaintiff can show a “more particularized need for, and the likely relevan ce of, broader information.” Owens ,221 F.R.D. at 654 (citing Heward v. W. Elec. Co. , No. 83-2293,1984 WL 15666 , at *6 (10th Cir. July 3, 1984); Haselho rst v. Wal-Mart Stores, Inc. ,163 F.R.D. 10 , 11 (D. Kan. 1995)); a ccord Prouty v. Nat’l R.R. Passenger Corp. ,99 F.R.D. 545 , 547 (D.D.C. 1 983).
2. Relevance and Scope of Document Request No. 12
and
Interrogatory No. 6
Plaintiff demands all complaints of gender discrimination made against UNICCO
or its employees during the five years prior to plaintiff’s discovery request.
[2]
Defendants
*5
lodge three objections. First, they object to the request’s scope. This case, they argue,
deals only with interactions between one supervisor and one employee, and plaintiff
cannot show “particularized need for, and the likely relevance of” claims from outside the
East Region. (Defs.’ Opp. [44] at 8 n.5 (quoting
Owens
,
a. First Objection: Plaintiff Requests Irrelevant Material
Defendants object to Interrogatory No. 6 and Document Request No. 12 on
grounds that plaintiff’s claim relates to sexual harassment by one employee and that
harassment claims at other UNICCO worksites are irrelevant. (
Id.
at 6, 8.) They also
against defendants or their current or former employees, divisions, departments or offices, including
internal complaints, Equal Employment Opportunity Commission or District of Columbia Office of Human
Rights [c]harges, complaints filed with state agencies, including the Commonwealth of Massachusetts
Commission Against Discrimination, and complaints filed in a state or federal court.” (Pl.’s First Req. for
Produc. of Docs. [43-3] at 12.) Interrogatory No. 6 is almost identical to the foregoing and also demands
that UNICCO “[i]nclude in [its] response identification of the person who made the complaint, the alleged
discriminatory official named, the location in which the alleged discrimination occurred, documents related
to the complaint, and any actions taken by UNICCO Service Company in response to the complaint.”
(Pl.’s First Set of Interrogs. [43-4] at 8–9.) The information requested is for the time period from “January
1, 2004 to the present.” ( at 4; Pl.’s First Req. for Produc. of Docs. [43-3] at 5.)
*6
argue that plaintiff cannot “tie any of the identified discrete acts of other supervisors t
o
[UNICCO’s] decision to terminate her employment.” ( at 7 (citing
Mendelso
hn v.
Sprint/U
nited Mgmt. Co.
,
Sprint
establishes that “evidence of an employer's past discriminatory or
retaliatory behavior toward other employees may be relevant to whether an employer
discriminated or retaliated against a plaintiff.”
Elion
,
i.
First, plaintiff makes the general claim that “other supervisor” evidence may
show “a company-wide policy of tolerating or even encouraging discrimination.” (Pl.’s
Mem. of P. & A. [43-1] at 13.) Although this evidence could fit into plaintiff’s theory of
the case,
Sprint
,
ii. Plaintiff presents several exhibits meant to show that supervisors with company-wide responsibilities were involved in discrimination and retaliation against her. The deposition of Robert Fuller, the property manager of the building where the alleged harassment occurred, indicates that UNICCO employees suggested to him that “in situations like this” transferring plaintiff out of the building “may be the best course of action.” (Fuller Tr. [47-4] at 7–8.) However, the two UNICCO employees implicated in that discussion were Iva Lyons and Charles Restivo, respectively the Human Resources (“HR”) Director and Senior Operations Manager of the East Region. ( at 3; Lyons Tr. [47-1] at 3; Doc. No. 794 [47-6] at 2 (listing Iva Lyons as “Director of Hum an Resources – East Region”); Doc. No. 1781 [47-7] at 2 (listing Charles Restivo as “Senio r Director of Operations” with an Arlington, Virginia area code); Defs.’ Opp. [44] at 9 (referri ng to the “East Region’s senior director of operations).) Plaintiff does not show that any supervisors from the Boston headquarters were involved in that conversation.
iii. Plaintiff submits a letter from her attorney to UNICCO’s in-house counsel in the Boston headquarters that “detail[s] UNICCO’s harassment and retaliation following [UNICCO headquarters’] express notification of [plaintiff’s] complaints.” (Pl.’s M em. of P. & A. [43-1] at 13; Letter of June 1, 2006 [43-13] at 2–3.) The letter merely reve als that counsel from the headquarters o ffice were in contact with plaintiff’s attorney regardi ng her claim. The alleged misconduct described in the letter involved only employees within the East Region.
iv. Plaintiff submits UNICCO’s position statement sent to the D.C. Office o f Human Rights for the proposition that “half of the UNICCO officials familiar with the allegations are Boston area based.” (Pl.’s Mem. of P. & A. [43-1] at 13; UNICCO *8 Position Statement [43-14] at 6.) Defendants rightly point out that the document merely confirms that the appropriate supervisors were notified of the complaint after it was filed. (Defs.’ Opp. [44] at 9.) The letter does not implicate headquarters personnel in discrimination or retaliation against plaintiff.
v. Plaintiff argues that claims from outside the East Region handled by UNICCO’s headquarters office may show that “UNNICO [ sic ] likely knew that its treatment of [plaintiff] could result in a finding that its conduct was unlawful,” wh ich would entitle her to punitive damages. (Pl.’s Mem. of P. & A. [43-1] at 13.) She proceeds on the theory that UNICCO may assert as an affirmative defense that it informed plaintiff of a complaint procedure for discrimination claims. ( at 14.) Plaintiff maintains that UNICCO did not post information that would inform her of such a procedure. If UNICCO knowingly violated laws regarding the posting of employee rights information “even after such requirements had been emphasized” by a conciliati on agreement into which UNICCO had entered in Massachusetts (Compl. ¶¶ 70–73), then UNICCO could be held liable for punitive damages. Everything plaintiff says here is true, but it ignores that plaintiff’s own evidence shows East Region supervisors were responsible for ensuring that employee rights information was posted. (Ly ons Tr. [47-1] at 20–2 5.) Plaintiff fails to demonstrate the likelihood that any headquarters supervisor s were complicit in the alleged failure to post employee rights information.
vi. Plaintiff submits evidence that UNICCO “failed to give its supervisors and employees sex harassment training” (Pl.’s Reply [47] at 15; Gaitan Tr. [47-3] at 3–4; Soltero Tr. [47-2] at 12–13), but fails to prove that supervisors at UNICCO headq uarters were involved in this omission. The only training-related evidence involving a *9 headquarters-based supervisor merely establishes that this supervisor, the Equal Employment Opportunity (“EEO”) Director, was not aware of any documentation showing that defendant Alarcon had attended a training session. (Soltero Tr. [47-2] at 12–13.) Lack of knowledge about specific documents regarding specific train ing of a specific employee may establish a less than perfect memory, but it hardly establishes supervisor’s knowledge of or complicity in the failure to give such training.
vii. Plaintiff argues that UNICCO “apparently failed to investigate a cla im of sexual harassment in the workplace for one month to six weeks.” (Pl.’s Reply [ 47] at 15.) Th e evidence she presents in relation to this claim does not implicate any supervisors in the Boston headquarters. ( See id. at 15 n.12 and cited exhibits.)
viii. Finally, plaintiff submits e-mails and attachments from one of plaintiff’s former supervisors and from her building’s property manager to UNICCO’s in-house counsel and EEO Director. (Doc. No. 794 [47-6] at 2–3; Doc. No. 1784 [47-7] at 5–7.) The first attachment is a memo that in-house counsel “requested,” which was sent to plaintiff and reminds employees not to leave their work area during their shift and not to arrive t o work later than the established starting time. The second attachment is a letter that provides for plaintiff’s transfer to a different building.
It is true that these e-mails were sent to UNICCO supervisors with company-wide responsibilities, but plaintiff again fails to establish that these supervisors had a hand in the alleged discrimination and retaliation against plaintiff. The e-mails are dated Augus t 8, 2004 and October 20, 2004. By that time, plaintiff’s discrimination complaint with the D.C. Office of Human Rights had been pending for several months. (Compl. ¶ 50.) It seems far more likely that the company-wide EEO Director and in-house counsel wanted *10 to stay apprised of any events that might later become relevant to potential litigation. A s the Fuller deposition indicates, the decision to transfer plaintiff to a different building appears to have originated with East Region employees. (Fuller Tr. [47-4] at 7–8.)
Plaintiff has not submitted convincing evidence that supervisors beyond the E
ast
Region were implicated in discrimination and retaliation against her. Without such
evidence, plaintiff cannot show that discrimination claims from outside the East Region
are relevant to her theory of the case or that the same decisionmakers were involved.
See
Sprint
,
b. Second Objection: Temporal Scope of Plaintiff’s Request
A second factor in determining whether “other supervisor” evidence is relevant
is
whether the events giving rise to that evidence occurred “close in time to the events at
issue” in plaintiff’s case.
Elion
,
c. Third Objection: Expansion of Plaintiff’s Theory of the Case Defendants object to Interrogatory No. 6 and Document Request No. 12 on grounds that plaintiff has impermissibly expanded the theory of her case so as to require the broad discovery she has requested. (Defs.’ Opp. [44] at 7–8.) Defendants rely on the district court case remanded from the Supreme Court’s decision in Sprint , which noted that the plaintiff in that case had improperly “reinvented the theory of her case” in order to make proper the introduction of certain evidence. Mendelsohn , 587 F. Supp. 2d at 1205 n.5. Here, defendants ignore that the plaintiff in Mendelsohn tried to change her theory of the case after that theory had already been set in stone by the pretrial order. There have been no developments in this case so far that would similarly make plaintiff’s theory of the case completely inflexible. Furthermore, her theory that decisionmakers with company-wide responsibilities were involved in her termination seems entirely consistent with an allegation she set forth in her original complaint—namely, that UNICCO was complicit in the discrimination and retaliation against her. (Compl. ¶ 77.) The Court therefore finds that defendants’ third objection is no bar to discovery of company-wide discrimination claims.
3. The Parties’ Prior Agreement to Limit the Scope of the Request
prior to the alleged discriminatory conduct in an organization with 3,000 more employees than UNICCO.
Owens
,
Defendants argue that plaintiff’s demand for all formal and informal sexual harassment claims against UNICCO and its employees should be denied because the parties previously agreed to limit discovery to the East Region. (Defs.’ Opp. [44] at 5–6 ; Defs.’ First Supplemental Resps. [43-7] at 16.) Plaintiff responds that she never waived her right to seek company-wide claims “regardless of w hat emerged during discovery” (Pl.’s R eply [47] at 13–14), and she submits the information that arose during disc overy which prompted her to seek the requested documents.
A weighing of the equities reveals that this agreement should not act as a complete bar to further discovery. It is true that the parties initially agreed to limit discovery of harassment claims to the East Region, but plaintiff claims and defendants do not dispute that she never waived her right to seek company-wide claims regardless of new facts that arose during discovery. ( ) To deny plaintiff the opportunity to follow up on any le ads would contravene plaintiff’s right to broad discovery, see F ED . R. C IV . P. 26(b)(1 ), especially if a lead demonstrates a strong potential to produce relevant evidence.
Defendants also argue that this motion to compel comes “at the close of discovery” and thus should be barred as untimely. (Defs.’ Opp. [44] at 2.) This Cou rt extended the discovery period to December 2, 2009 (Order [40] at 1), and plaintiff filed her motion to compel on November 24, 2009 (Pl.’s Mem. of P. & A. [43-1] at 17). Although plaintiff’s motion cuts it close, it is noteworthy that much of the evidence on which she relies in her motion did not come to light until very near November 24. Iva Lyons was deposed on November 17, Glisette Soltero on December 2, Ramon Ga itan on November 18, and Robert Fuller on November 24. (Lyons Tr. [44-1] at 1; Solter o Tr. *13 [44-2] at 1; Gaitan Tr. [44-3] at 1; Fuller Tr. [44-4] at 1.) Although none of this testimony persuades the Court that plaintiff has a “particularly cogent” need for company-wide gender discrimination claims, the fact that this crucial part of discovery was “back-loaded” persuades the Court that filing a motion to compel near the end of discove ry was not inapp ropriate.
4. Conclusion
Although plaintiff’s demand for all gender discrimination complaints over a five- year period is appropriate as regards the scope of her theory of the case and the temporal scope of her case, she has thus far been unable to show a “particularized need” to expand discovery beyond the East Region. Her motion to compel responses to Interrogatory No . 6 and Document Request No. 12 must therefore be denied. However, upon consideration of defendants’ opposition, the Court finds that the inquiry cannot end here. Defendants imply that the EEO Director and in-house counsel gave “advice and counsel to local st aff as to decisions considered and made” related to plaintiff’s employment. (Defs.’ Opp. [44] at 9.) Such advice and counsel has the potential to implicate headquarters-based supervisors in decisions related to plaintiff’s termination. Furthermore, defendants as sert the attorney-client privilege over some of the documents detailing the nature of that advice. Although plaintiff has so far proffered no evidence showing “particularized need” for discovery of claims beyond the East Region, this does not necessarily mean that such evidence does not exist. Therefore, the Court will grant plaintiff conditional leave to file a renewed motion to compel responses to Interrogatory No. 6 and Document *14 Reques t No. 12 once it determines whe ther defendants have validly asserted privilege over th e documents at issue [4] .
B. Attorney-Client Privilege
1. Legal Standard
Defendants invoke the attorney-client privilege to shield certain documents fr
om
discove
ry. In
In re Sealed Case
,
“The [attorney-client] privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal se rvices or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.” Id. (quoting United States v. United Shoe Machinery Corp. ,89 F. Supp. 357 , 358–59 (D. Mass. 1950)).
The burden of “presenting sufficient facts to establish the privilege” rests with the party
claiming it.
In re Sealed Case
,
2. Discussion
Plaintiff demands production of documents 1, 7, 14, 19, 20, 34, 35, 36, 45, 46 , 55, 56, 58, 59, 71, and 73 in defendants’ privilege log. (Pl.’s Mem. of P. & A. [43-1] at 1.) The Court finds that defen dants have not provided sufficient information to sustain their burden of proof that the attorney-client privilege properly attaches. Alexander , 192 F.R.D. at 45. The Court will compel disclosure of all requested privilege log documents, except for document 20. [5]
Defendants have failed to submit “competent evidence” to support their claims
of
privilege. They provided a privilege log with short descriptions of the subject matte
r of
each communication (Second Supplemental Privilege Log [44-3]), but “descriptions of
the documents are so brief and of such a general nature that they fail to give the court
[evidence supporting each of the essential elements necessary to sustain a claim of
privilege.]”
Alexander
,
Defendants had their opportunity to provide the plaintiff and this Court with the
necessary information to sustain a determination that the attorney-client privilege attaches
to the requested privilege log documents. Defendants filed the privilege log with this
Court two weeks after receipt of the plaintiff’s Motion to Compel; they chose to offer
general assertions rather than specific indications of privilege. (Def.’s Opp. to Pl.’s Mot.
to Compel [44-3] Ex. C (filed on Dec. 8, 2009).) Any allowance of leave for defenda
nts
to amend their privilege log to offer more specificity is unwarranted. It will only add
delay to these proceedings and likely require another round of motions to compel bas
ed
on the new Third Supplemental Privilege Log. In combination with the defendants’
attempt to satisfy an attorney-client privilege standard set forth by the Fifth Circuit in
United States v. Robinson
,
In light of the foregoing, the defendants will be ordered to disclose privilege log docu ents 1, 7, 14, 19, 34, 35, 36, 45, 46, 55, 56, 58, 59, 71, and 73. m
III. THE ORDERED RELIEF
Plaintiff has failed to present evidence showing a “particularized need” to discover gender discrimination claims beyond UNICCO’s East Region, and her motio n will be denied with respect to Interrogatory No. 6 and Document Request No. 12. However, defendants have not shown any other bar to discovery of these claims, and evidence establishing a “particularized need” may be present in the documents ordered compelled in this memorandum. Therefore, plaintiff will be granted conditional leave t o file a renewed motion to compel defendants’ fulfillment of Interrogatory No. 6 and Document Request No. 12. For evidence that claims from outside the East Region ar e “particularly cogent” to plaintiff’s case, the renewed motion to compel may rely o n the privilege log documents compelled herein or on the unredacted portions of the three complaints that UNICCO must produce. Finally, because the temporal scope of plaintiff’s request is valid, defend ants must submit responses to Interrogatory No. 6 and D ocument Request No. 12 as to the East Region from January 1, 2004 to January 9, 2009 if they have not already done so.
IV. CONCLUSION
For the foregoing reasons, plaintiff’s Motion to Compel [43] will be GRANTED in part, and DENIED in part, and plaintiff wil l be granted conditional leave to file a renew ed motion to compel.
A separate order shall issue this date.
D ate
January 28, 2010.
_________/s/_____________ ROYCE C. LAMBERTH Chief Judge United States District Court
Notes
[1] Plaintiff also demanded production of defendant Alarcon’s personnel file from an earlier period of employment with UNICCO and attachments to e-mails produced by UNICCO. (Pl.’s Mem. of P. & A. [43- 1] at 2.) She has since withdrawn these demands. (Pl.’s Reply [47] at 1 n.1.)
[2] Document Request No. 12 demands “[a]ll formal and informal complaints, charges, concerns, grieva nces, allegations, and/or reports of gender discrimination, including sexual harassment, or retaliation made
[3] Defendants also object to plaintiff’s discovery requests on grounds of UNICCO’s size: it has 10,000 worksites and 17,000 employees at any one time. (Defs.’ Opp. [44] at 6.) To the extent defendant argue s that discovery of company-wide discrimination claims would be unduly burdensome, the Court rejects this argument. The Owens court perm itted discovery of discrimination claims starting two and a half years
[4] Plaintiff also demands unredacted versions of the three complaints of gender discrimination that UNICCO has produced. (Pl.’s Reply [47] at 14.) She argues that there was never an agreement that these complaints could be produced with names redacted. ( at 14 n.6.) Defendants present no counterargument, and nothing in the record contradicts plaintiff’s argument. Therefore, UNICCO will be ordered to produce unredacted versions of these complaints.
[5] Defendants need not produce document 20. As they point out, plaintiff failed to confer with defense counsel as to this document pursuant to Local Rule 7(m). (Defs.’ Opp. [44] at 13 n.9; Letter of Nov. 12, 2009 [43-9].) Plaintiff’s reply does not address defendants’ argument, and nothing in the record contradicts it. Therefore plaintiff’s motion to compel will be denied as to this document.