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Marc BROWN, Plaintiff, v. WAL-MART ASSOCIATES, INC.; Wal-Mart Stores, Inc.; and Wal-Mart Stores East, LP, Defendants.
ORDER ON PLAINTIFF'S MOTION TO COMPEL AND MOTION FOR LEAVE TO TAKE TWELVE DEPOSITIONS
Currently pending before the Court are two discovery motions in this matter: Plaintiff Marc Brown's (“Plaintiff” or “Mr. Brown”) Motion to Compel [Dkt. 31], and Plaintiff's Motion for Leave to Take Twelve Depositions [Dkt. 41].
For the reasons set forth below, Plaintiff's Motion to Compel [Dkt. 31] is GRANTED IN LIMITED PART, and Plaintiff's Motion for Leave to Take Twelve Depositions [Dkt. 41] is also GRANTED.
This case arises out of allegations of racial discrimination, discrimination on the basis of Criminal Offender Record Information (“CORI”), and retaliation brought by Plaintiff against his former employer, Defendants Wal-Mart Associates, Inc.; Wal-Mart Stores, Inc.; and Wal-Mart Stores East, LP (collectively, “Walmart”). [See generally Dkt. 9]. Mr. Brown, who is African-American [id. at ¶ 1], alleges he suffered egregious racial discrimination and hostility while employed at Walmart stores in Massachusetts, including from a supervisor who required workers of color to do the majority of manual labor while calling it “[n-word] work” [id. at ¶¶ 5–6], and who would reprimand Plaintiff repeatedly for minor errors [id. at ¶¶ 28–29]. Plaintiff claims this supervisor, Edward Hartline, also harassed Plaintiff's daughter after meeting Plaintiff's wife (who is white), telling their daughter, who also worked at Walmart, that she “would not be allowed to live where he is from in Alabama.” [Id. at ¶¶ 31–32]. As a result, Plaintiff alleges he requested a transfer, which was denied [id. at ¶ 33], and later filed an internal complaint of race discrimination [id. at ¶ 34]. Mr. Brown claims Walmart “allegedly initiated an investigation,” but that it then reviewed Plaintiff's criminal record, which contained information from over 20 years prior, and promptly terminated Mr. Brown's employment for “gross misconduct.” [Id. at ¶¶ 35–37]. Plaintiff's complaint states he had worked for Walmart for over three years, from February 15, 2016 to March 28, 2019, and that Walmart had reviewed his CORI with Mr. Brown's permission prior to hiring him. [Id. at ¶¶ 1–2].
For its part, Walmart has claimed, inter alia, that it investigated Mr. Brown's claims of racial discrimination “but found no evidence” of such, and that Mr. Brown's termination was actually the result of “an associate at the Chelmsford store receiv[ing] an anonymous call, stating that Plaintiff was a ‘child rapist’ (or words to that effect).” [Dkt. 34 at 2]. Walmart claims this unidentified associate reported the call “up the chain,” after which Plaintiff was investigated and found to have been “convicted of three counts of felonious sexual assault on a child under 16, was a registered sex offender, and failed to disclose these facts on his post-offer criminal background check form.” [Id.] Walmart asserts it terminated Mr. Brown due to “his dishonest omissions and his regular unsupervised interaction with customers, including minors.” [Id. at 3].
The Court will not delve further into the parties’ respective positions and disputes at this time; however, it is clear that the merits of this case will hinge largely on the veracity of Walmart's stated reason for terminating Mr. Brown—particularly as the alleged anonymous phone call and resulting investigation occurred just one month after Mr. Brown filed his internal complaint of discrimination. [See Dkt. 9 at ¶ 34; Dkt. 34 at 2–3]. This is certainly not the only critical fact to be established through litigation of Mr. Brown's claims. There remain many unknowns surrounding the anonymous phone call, potential witnesses to the alleged discrimination, and full details of the process surrounding both Mr. Brown's original CORI check and termination process—among many other aspects of this matter. Accordingly, and as discussed in more detail below, these many unknowns require a proper, productive discovery process which will provide the parties (and, assuming the matter does not resolve in settlement, the Court or a jury) sufficient information to prove or disprove their respective positions.
II. PLAINTIFF'S MOTION TO COMPEL
1. Legal Standard
Fed. R. Civ. P. 26(b)(1) permits parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case․” Fed. R. Civ. P. 26(b)(1). Moreover, “[a]s the Supreme Court has instructed, because ‘discovery itself is designed to help define and clarify the issues,’ the limits set forth in Rule 26 must be ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.’ ” In re New England Compounding Pharm., Inc. Prod. Liab. Litig., No. MDL 13-2419-FDS, 2013 WL 6058483, at *3 (D. Mass. Nov. 13, 2013) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978)); see also Green v. Cosby, 152 F. Supp. 3d 31, 34 (D. Mass. 2015), modified on reconsideration, 160 F. Supp. 3d 431 (D. Mass. 2016).
“Unless otherwise limited by court order, the scope of discovery ․ [extends to] any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents․ Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Gericke v. Begin, No. 11-CV-231-SM, 2012 WL 4340520, at *1 (D.N.H. Sep. 20, 2012) (quoting Fed. R. Civ. P. 26(b)(1)) (internal quotations omitted).
When a party believes it is not being provided with all responsive discovery, or “is dissatisfied with an opponent's response to a discovery request, the Federal Rules of Civil Procedure ․ permit that party to ‘move for an order compelling disclosure or discovery.’ ” Id.
Plaintiff has filed a motion to compel [Dkt. 31] pertaining to four general categories of information he requested, but for which he asserts Walmart has failed to provide adequate responses: (1) identities of various Walmart employees believed to have discoverable information [id. at 7–10]; (2) comparator information [id. at 10–17]; (3) information regarding other investigations and complaints of discrimination [id. at 17–18]; and (4) various company policies pertaining to personnel and data retention [id. at 18–21].
When responding to Plaintiff's requests for discovery, Walmart has listed nearly every possible objection to nearly every one of Plaintiff's requests at issue on this motion, resulting in responses that contain lengthy paragraphs of identical, boilerplate language and very little in the way of genuinely responsive information. [See Dkt. 31; Dkt. 31-7]. Many of these boilerplate objections could not even possibly apply to the associated interrogatory. For example, Walmart has asserted objections to Interrogatory No. 13 as “overbroad as to time period and geographical scope, and on that basis [it] is unduly burdensome and oppressive”—yet Interrogatory No. 13 simply asks for the identities of CAP 2 1 Associates and Supervisors who “were spoken to as part of the investigation into Mr. Brown's complaint of race discrimination.” [Dkt. 31 at 8]. The pervasiveness of such irrelevant, boilerplate objections throughout Walmart's responses are indicative of stonewalling tactics that only frustrate the processes of discovery and litigation, while further illustrating Plaintiff's need to file this motion. In complying with the Court's order as laid out herein, Walmart is advised to cease such evasive tactics and engage meaningfully and truthfully with Plaintiff to complete discovery.
i. Discovery Regarding Identities of Walmart Employees with Information
The first category of information sought by Plaintiff in his Motion to Compel [Dkt. 31] concerns the identities of various Walmart employees he believes to have discoverable information relevant to this case. These include individuals who were “consulted, conferred, interviewed, or who otherwise provided information in connection with the preparation of the answers to these interrogatories” (Interrogatory No. 2) [id. at 7]; individuals believed to have “knowledge of facts relating to this case, including, without limitation, the allegations in the Complaint and/or the Defendants’ MCAD Position Statement” (Interrogatory No. 6) [id. at 8]; current or former Walmart employees “involved in the decision to dismiss the Plaintiff's employment” (Interrogatory No. 9) [id. at 9]; and all CAP 2 associates and supervisors who “were spoken to as part of the investigation into Mr. Brown's complaint of race discrimination” (Interrogatory No. 13) [id. at 10].
The identities of such individuals as defined above are plainly relevant and discoverable here—in fact, it would be difficult to conceive of a more obviously relevant and necessary category of discoverable information than, broadly stated, the identities of people with knowledge about the case. While the Court understands that Walmart has supplemented some of its responses to some of these questions [see Dkt. 34 at 7], there still appear to be some glaring deficiencies. For example, even as Walmart's opposition [Dkt. 34] to the instant motion identifies that Interrogatory No. 9 seeks to discover any individuals “involved in the decision to dismiss the Plaintiff's employment,” Walmart nonetheless asserts that “[t]here is no further information to provide,” despite having just stated the response consisted of “identif[ying] the individual who made that decision and further supplement[ing] its answer to include another individual consulted in the decision” [id. at 7] (emphasis added). Nowhere does Walmart state that these two individuals were the only people involved with the decision to terminate Plaintiff's employment—and thus it remains unclear whether Walmart has in fact produced all responsive information to this question.
Walmart's answer and supplement to Interrogatory No. 6 have been similarly paltry. Despite, again, providing a simple conclusory sentence stating the company “is not aware of any further responsive information” regarding this question [Dkt. 34 at 7], the obvious piece of information missing here is the identity of the Walmart associate who purportedly received a phone call leading to Plaintiff's termination. As Plaintiff correctly points out [Dkt. 38 at 4], Walmart must either identify this person or represent to Plaintiff and to this Court that the company cannot identify this person. Anything short of such a response falls far short of Walmart's most basic discovery obligations.
While less evidently evasive and inadequate, the Court finds Walmart's response [see Dkt. 31-7 at 3–4; Dkt. 34 at 7] to Interrogatory No. 2—requesting the identities of anyone consulted in preparation of the answers to Plaintiff's interrogatories—to be similarly suspect. Walmart has stated that, in preparing answers to interrogatories on all the aspects of this matter which Plaintiff asked about, the company consulted with only one person—identified as “People Operations Lead Jessica Padin” [Dkt. 34 at 7]. If this is true, then perhaps it is no wonder Walmart has failed to produce more responsive information in discovery—as consulting a single HR employee in a matter of this nature would seem to fall far short of any genuine attempt at accurate fact-finding. And if it is not true, then this response remains incomplete.
In accordance with the above, Walmart is ORDERED to supplement its responses to Interrogatory Nos. 2, 6, 9, and 13, to whatever extent necessary to provide complete, accurate, and responsive information to Plaintiff and to comply with this order.
ii. Discovery Regarding Comparators
Plaintiff's second category of information sought pertains to comparators, including information on CAP 2 Associates’ and Supervisors’ background check results with Walmart between February 1, 2015 and December 31, 2019 (Interrogatory No. 12) [Dkt. 31 at 8–9], CAP 2 employees “who lodged complaints of race discrimination while employed” with Walmart for the same time period (Interrogatory No. 15) [id. at 9–10], identification of “all individuals that Defendant considers a comparator to Plaintiff” (Interrogatory No. 16) [id. at 12], “all disciplinary actions imposed against anyone in the workplace for allegedly violating the Company's Criminal Background Check Policy by failing to disclose his or her prior convictions of felonies” (Interrogatory No. 17) [id. at 13], identification of “all other employees” within the six years prior to Plaintiff's termination who “engaged in the same or similar acts or omissions” and any resulting company action (Interrogatory No. 18) [id. at 13], and information related to the dates and results of criminal background checks performed on individuals identified in Interrogatory Nos. 16, 17, and 18 (Interrogatory No. 20) [id. at 14]. Finally, Plaintiff's Request for Production (“RFP”) No. 45 requests performance reviews, disciplinary records, and other information concerning any reports against or by employees as identified in Interrogatory Nos. 16, 18, and 20 (RFP No. 45) [id. at 14].
Walmart raises a variety of objections to each of these requests, both through its (often highly repetitive, boilerplate) objections to Plaintiff's discovery requests directly and through its opposition filing [Dkt. 34] to this Court. Many of Walmart's arguments in its opposition [see id. at 9–16] regarding Plaintiff's requests being too broad in this category are correct, particularly as these requests are largely unlimited in scope—a factor that is particularly relevant for an employer of Walmart's size and with so many personnel records at issue. However, the Court finds Plaintiff's compromise proposal as set forth in his reply brief [Dkt. 38 at 3–4] to be both reasonable and sufficiently limited “geographically and temporally.” See Aponte-Navedo v. Nalco Chem. Co., 268 F.R.D. 31, 37 (D.P.R. 2010) (quoting Briddell v. Saint Gobain Abrasives Inc., 233 F.R.D. 57, 60 (D. Mass. 2005)). Moreover, Walmart's conception of who should be considered a comparator at the discovery phase of this litigation is extraordinarily narrow [see, e.g., Dkt. 34 at 8–9], and it has not presented a reasonable compromise with regard to time period or other possible limitations to either Plaintiff or this Court. Finally, it is worth emphasizing that a protective order [Dkt. 20] was entered by the Court in this matter at the parties’ joint request nearly a full year ago on July 23, 2021—rendering many of Walmart's objections on the basis of the contents of responsive discovery either irrelevant or imprecise. Should Walmart have concerns about the privacy of individual employee records or other information disclosed in response to these or any of Plaintiff's discovery requests, it may designate such records as requiring varying degrees of confidentiality, such as “on a need-to-know basis only to the parties” [id. at ¶ 12], or move this Court for in camera inspection or for a protective order regarding a specific record or records.
With such recourse available to Walmart (as it is for all defendants), and particularly in light of the entered confidentiality order and reasonableness of Plaintiff's proposed compromise, the Court adopts Plaintiff's updated set of limitations for Interrogatory Nos. 12, 15, 16, 17, 18, 20 and RFP No. 45, as set forth below:
1. Discipline history/personnel records for all employees in Mr. Brown's department who were supervised by Edward Hartline;
2. All investigations overseen by the same people who decided to terminate Mr. Brown based on the 2019 criminal history investigation involving felony convictions and disclosures of such convictions for the period covering January 1, 2016 through the present; and
3. Criminal records of all Walmart employees who were allowed to work in spite of having felony convictions in Massachusetts from January 1, 2016 to present.
In accordance with the above, Walmart is ORDERED to supplement its responses to Interrogatory Nos. 12, 15, 16, 17, 18, 20, and RFP No. 45 to whatever extent necessary to provide complete, accurate, and responsive information to Plaintiff within the confines of the limitations set forth above and to comply with this order.
iii. Discovery Regarding Other Investigations and Complaints of Discrimination
Plaintiff's RFP No. 25 requests various types of records related to “workplace complaints made against Edward Hartline and Brandie Anderson or by Plaintiff.” [Dkt. 31 at 17]. The Court agrees with Plaintiff that Walmart improperly limited its response to only include records related to complaints of race/color discrimination. [Dkt. 38 at 3–4].
For the same reasons as set forth in Section 2.ii above regarding comparators, the Court also adopts Plaintiff's compromise proposal regarding other investigations and complaints of discrimination [id.], with one small change regarding timeframe. As such, Walmart shall produce responsive information for all employees at Store # 2903 for the time period from January 1, 2016 through the present.
In accordance with the above, Walmart is ORDERED to supplement its response to RFP No. 25 to whatever extent necessary to provide complete, accurate, and responsive information to Plaintiff within the confines of the limitations set forth above and to comply with this order.
iv. Discovery of Personnel Policies, Employee Manuals, and Data Retention Policies
Lastly, RFP Nos. 23, 40, and 43 request various Walmart company policies and related records relevant to the parties’ claims. RFP No. 23 requests “all personnel policies, employee manuals, rules or regulations, or any other documents stating the Defendant's practice or procedures regarding ․ employment issues, including ․ policies concerning: a. Criminal background checks; b. compensation; c. benefits; d. workplace investigations; e. discipline; f. race discrimination; g. workplace retaliation; h. document and e-mail retention policies; litigation holds; and i. employee file retention policies.” [Dkt. 31 at 18]. RFP No. 40 requests “[a]ll documents related to the anonymous phone call received on March 13, 2019 alleging that Mr. Brown was a ‘child rapist[,]’ ” and RFP No. 43 requests “ ‘[a]ll documents that support Defendant's contention that Mr. Brown had regular interaction supervised or unsupervised, with children and minors in his role as CAP 2 supervisor” [Dkt. 31 at 17–18].
For many of the same reasons as enumerated in the discussion of other requests above, here Plaintiff seeks materials that are plainly relevant to this case, while not unduly burdensome or overbroad. The materials pertaining to the anonymous phone call are necessarily responsive, just as the information identifying the employee who allegedly received it is. See Section 2.i above. The Court also agrees with Plaintiff that, given that he was never in a management position at Walmart, it would be entirely unreasonable to expect him to know of the existence of, and be able to identify with specificity, each company policy with potential relevance to his claims of discrimination and retaliation. [See Dkt. 38 at 5]. To the extent there may be different responsive policies for different “jurisdiction[s],” as Walmart indicates [see Dkt. 34 at 17], then Walmart shall produce only those which governed the stores at which Mr. Brown worked and which his supervisors and all involved in the decision to terminate him had access to and could conceivably have been attempting or intended to follow. In line with the timeframe limits above, Walmart shall produce information responsive to RFP Nos. 23, 40, and 43 for the time period between January 1, 2016 through the present.
In accordance with the above, Walmart is ORDERED to supplement its responses to RFP Nos. 23, 40, and 43 to whatever extent necessary to provide complete, accurate, and responsive information to Plaintiff within the confines of the limitations set forth above and to comply with this order. Walmart is further ordered to take care to avoid re-producing thousands of pages of the same policy documents, as Plaintiff notes it has already done several times. [See Dkt. 38 at 1–2].
III. PLAINTIFF'S MOTION FOR LEAVE TO TAKE TWELVE DEPOSITIONS
In light of the above ruling which, inter alia, grants Plaintiff's request to compel Walmart to update its response to Interrogatory No. 6, Plaintiff's Motion for Leave to Take Twelve Depositions [Dkt. 41] is also GRANTED, insofar as it seeks leave to conduct either 11 or 12 depositions in total, depending on whether Walmart's updated response contains the identity of the Walmart associate who allegedly received a phone call leading to Mr. Brown's termination (as opposed to a statement that Walmart is unable to identify any such employee).
Assuming Walmart is able to identify this employee, the company is ordered to produce such identifying information as requested by Plaintiff as soon as possible, and to cooperate with Plaintiff and his counsel in arranging for deposition of such person.
“[T]he purpose of pretrial discovery is to ‘make trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.’ ” Wamala v. City of Nashua, No. 09-CV-304-JD, 2010 WL 3746008, at *1 (D.N.H. Sep. 20, 2010) (quoting Macaulay v. Anas, 321 F.3d 45, 53 (1st Cir. 2003)). Moreover, “[i]n employment discrimination cases, the discovery allowed is even more broad, ‘[b]ecause employers rarely leave a paper trail-or ‘smoking gun’—attesting to a discriminatory intent, [therefore] disparate treatment plaintiffs often must build their cases from pieces of circumstantial evidence.’ ” Vazquez-Fernandez v. Cambridge Coll., Inc., 269 F.R.D. 150, 155 (D.P.R. 2010) (quoting Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990)). This case is emblematic of one in which these two principles must be decisively applied.
The allegations of racial discrimination and hostility in Plaintiff's complaint, if true, are appalling. Yet there is no way to test the veracity of either these allegations or of Walmart's defense in response if Walmart refuses to engage in the discovery process. The Court is hopeful Walmart will understand its discovery obligations more fully going forward and comply with this order to ensure full and fair litigation of this matter and to avoid court sanctions.
In conclusion, Plaintiff's Motion to Compel [Dkt. 31] is GRANTED IN LIMITED PART as set forth above, and Plaintiff's Motion for Leave to Take Twelve Depositions [Dkt. 41] is GRANTED.
1. This is a reference to Mr. Brown's team and position at the time of his termination, when he was as a “Customer Availability Process (“CAP”) 2nd Associate” [see Dkt. 31 at 1].
A. KELLEY, DISTRICT JUDGE
Response sent, thank you
Docket No: Case No. 21-CV-10444-AK
Decided: July 15, 2022
Court: United States District Court, D. Massachusetts.
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