EEOC v. KANSAS CITY SOUTHERN RAILWAY, (D.Kan. 2000)

David J. Waxse, United States Magistrate Judge.

Pending before the Court is Plaintiff's Motion to Compel Answers to Interrogatory 16 and Responses to Request for Production of Documents 1, 19 and 25 (doc. 59). For the reasons stated below, Plaintiff's motion is granted in part and denied in part.

A. Interrogatory 16

In this interrogatory, Plaintiff requests an explanation and description of all procedures, rules and regulations which were in effect at any time during 1995 through 1999 relating to the discipline of engineers for rule violations. Defendant objects to Interrogatory 16, asserting (1) it is irrelevant in that it requests information regarding engineers, a totally different class of employees who are represented by a different union than Michael Kerr, who was a conductor; (2) it is unduly burdensome and harassing in that the request extends to all types of discipline and all types of rule violations which apply to engineers, many of which have absolutely no relationship to the type of incident in the present case; and (3) it is overly broad in time in that it seeks information more than two years after the incident in question.

1. Relevancy

When discovery appears relevant on its face, the party resisting the discovery has the burden to establish facts justifying its objections. Williams v. Board of County Comm'rs of Unified Gov't of Wyandotte County and Kansas City, Kan., 192 F.R.D. 698, 702 (D.Kan. 2000). Relevancy is broadly construed, and a request for discovery should be considered relevant if there is "any possibility" that the information sought may be relevant to the subject matter of the action. Scott v. Leavenworth Unified School District No. 453, 190 F.R.D. 583, 585 (D.Kan. 1999); Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D.Kan. 1999); see also Snowden v. Connaught Lab., 137 F.R.D. 336, 341 (D.Kan. 1991) (holding that a request for discovery should be allowed "unless it is clear that the information sought can have no possible bearing on the subject matter of the action.") "The scope of discovery under the federal rules is broad and . . . `discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues.'" Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).

Discovery in discrimination cases should not be narrowly circumscribed. Rich v. Martin Marietta Corp., 522 F.2d 333, 343-44 (10th Cir. 1975). The scope of discovery is particularly broad in a Title VII case and "an employer's general practices are relevant even when a plaintiff is asserting an individual claim for disparate treatment." Gomez v. Martin Marietta Corp., 50 F.3d at 1520 (citing Scales v. J.C. Bradford Co., 925 F.2d 901, 906 (6th Cir. 1991)). A plaintiff may be allowed "extensive" discovery in order to prove his or her case. Rich v. Martin Marietta Corp., 522 F.2d at 343.

Plaintiff contends Interrogatory 16 is relevant because Defendant held both Conductor Kerr and Engineer Knight responsible for the safety violation for which Conductor Kerr ultimately was terminated. Plaintiff contends Engineer Knight, who is white, was not terminated for this safety violation, but instead was issued a thirty-day suspension. Plaintiff asserts it is seeking an explanation of the rules and procedures Defendant followed when it decided to suspend Knight for thirty days as opposed to terminating Knight for his role in the safety violation. In response to Plaintiff's argument, Defendant argues this case involves a claim of discriminatory discharge from the position of conductor, not engineer; thus, the disciplinary rules and procedures pertaining to engineers are irrelevant.

Given the broad scope of discovery circumscribed in these types of cases, the Court is not persuaded by Defendant's argument. As noted, this is a disparate treatment case and comparison of Defendant's treatment of Kerr and Knight pursuant to applicable company rules and procedures appears to be a central issue in this matter. Thus, the Court finds the documents requested are relevant.

2. Unduly Burdensome, Oppressive and Harassing

Defendant fails to provide the Court with any evidence to support its assertion that answering Interrogatory 16 would be unduly burdensome, oppressive and harassing. Instead, Defendant asserts a response to this interrogatory is not warranted because Plaintiff can glean the information requested from Defendant's responses to discovery requests previously posed. Given this argument, Defendant appears to be objecting on grounds that Interrogatory 16 is cumulative. Upon review of the previous responses provided by Defendant as set forth in Defendant's brief, however, the Court is not persuaded that Interrogatory 16 is cumulative or duplicative of prior discovery requests or that Interrogatory 16 is unduly burdensome, oppressive or harassing in nature.

3. Overly Broad in Time

Defendant next argues Interrogatory 16 is overly broad in time because it seeks information for a period of two years after Kerr was employed. Discovery of information both before and after the liability period within a Title VII lawsuit may be relevant and/or reasonably calculated to lead to the discovery of admissible evidence and courts commonly extend the scope of discovery to a reasonable number of years both prior to and following such period. See, e.g., James v. Newspaper Agency Corp., 591 F.2d 579 (10th Cir. 1979) (four years prior to liability period reasonable); Raddatz v. Standard Register Co., 177 F.R.D. 446, 448 (D.Minn. 1997) (allowing discovery into the period two years after termination); Lyoch v. Anheuser-Busch Co., 164 F.R.D. 62, 67 (E.D.Mo. 1995) (four years prior to liability period reasonable); Hicks v. Arthur, 159 F.R.D. 468, 471 (E.D.Pa. 1995) (allowing discovery to extend to the period two years after the tenure of the plaintiffs); Robbins v. Camden City Board of Educ., 105 F.R.D. 49, 62-63 (D.N.J. 1985) (allowing discovery for a period of two years after employment terminated); McClain v. Mack Trucks, Inc., 85 F.R.D. 53 62 (E.D. Pa 1979) (five years prior to liability period reasonable); Cormier v. PPG Indus., 452 F. Supp. 594 (W.D.La. 1978) (five years prior to liability period reasonable); Stevenson v. General Electric Co., No. C-1-77-122, 1978 WL 150, at *1 (S.D.Ohio Oct. 4, 1978) (noting emergence of a "five-year rule"); Milner v. Nat'l Sch. of Health Tech., 73 F.R.D. 628, 632 (E.D.Pa. 1977) (approximately five years prior to alleged violation).

Upon review of the arguments presented, the Court finds Plaintiff's request to be overly broad. The Court therefore exercises its discretion to limit the temporal scope of Interrogatory 16. Keeping in mind that the scope, including the temporal scope, of discovery through interrogatories and requests for production of documents is particularly broad in Title VII cases, the Court is convinced that limiting the scope of Interrogatory 16 to a period of three years prior to the time the discriminatory conduct was alleged to have occurred and one year after the time the discriminatory conduct was alleged to have occurred is reasonable and sufficient for purposes of gathering information to establish a violation of Title VII. Accordingly, Defendant shall respond to Interrogatory 16 for the time period from January 1995 through December 1998.

In Request 1, Plaintiff seeks personnel files of various employees within Defendant's company. The motion to compel currently before the Court, however, is limited to a request for production of the personnel file of Terry Reardon ("Reardon"), the supervisor who made the decision to terminate Kerr. Defendant objects to the request on grounds that Reardon's personnel file is not relevant and is confidential. Notwithstanding this objection, Defendant states it would be willing to produce all documents within Reardon's personnel file reflecting to disciplinary action taken against Reardon, as well as documents pertaining to the Kerr incident or treatment of minorities in general, but no such documents exist.

Cases involving the production of personnel files in employment discrimination actions have held that merely because a person may be called as a witness at trial does not justify disclosure of his/her personnel file. See, e.g., McCoo v. Denny's Inc., 192 F.R.D. 675, 687 (D.Kan. 2000); Hicks v. Kansas Masonic Home, No. 97-1307-MLB, 1998 WL 173197, at *2 (D.Kan. March 5, 1998); Haselhorst v. Wal-Mart Stores, Inc., 163 F.R.D. 10, 11 (D.Kan. 1995). "If, however, the individual is alleged to have engaged in the discrimination or harassment at issue or played an important role in the employment decision or incident that gives rise to the lawsuit, the personnel file will be considered relevant and/or reasonably calculated to lead to the discovery of admissible evidence, and therefore discoverable." McCoo v. Denny's Inc., 192 F.R.D. 675, 687 (D.Kan. 2000) (citing Daneshvar v. Graphic Technology, Inc., No. 97-23044-JWL, 1998 WL 726091, at *5 (D.Kan. Oct. 9, 1998) (compelling production of personnel files of three "key witnesses" who "played important roles in the employment decisions affecting plaintiff," finding such documents may contain information which could be used to impeach the witnesses); Krenning v. Hunter Health Clinic, Inc, 166 F.R.D. 33, 35 (D.Kan. 1996) (compelling production of personnel files of alleged harasser and employer's chief executive officer); Hoskins v. Sears, Roebuck and Co., No. 96-1357-MLB, 1997 WL 557327, at *2 (D.Kan. Sept. 2, 1997) (compelling production of personnel files of "eight individuals who are alleged to have been involved in, witnessed, or failed to report" the claimed harassment)).

Based on the applicable law, as well as the fact that Reardon is a key witness in this case, the Court finds Reardon's personnel file relevant to the issues presented and thus overrules Defendant's objections based on relevancy. The Court also overrules the objections based on confidentiality. Confidentiality "generally does not constitute grounds to withhold information from discovery." Sithon Maritime Co. v. Holiday Mansion, No. Civ. A. 96-2262-EEO, 1998 WL 182785, at *10 (D.Kan. Apr. 10, 1998). It does not equate to privilege. Federal Open Mkt. Committee v. Merrill, 443 U.S. 340, 362 (1979). "[C]onfidentiality alone is not an objection which precludes discovery." Aramburu v. Boeing Co., No. 93-4064-SAC, 1994 WL 810248, at *1 (D.Kan. Sept. 22, 1994).

Defendant has demonstrated no basis to withhold the personnel file at issue. Its bald assertions of confidentiality do not suffice. It shall produce the files. The nature of the requested discovery, nevertheless, warrants protection from unnecessary dissemination. Employee personnel files should not be widely disseminated. Such files may contain embarrassing or sensitive information. When the court denies a motion to compel in full or in part, it may at its discretion enter any protective order authorized under Fed.R.Civ.P. 26(c). See Fed.R.Civ.P. 37(a)(4)(B) and (C). Good cause exists to protect the confidentiality of the requested personnel file. Accordingly, the Court orders that the documents provided in response to Request 1 be deemed confidential. Plaintiff shall use them for no purpose other than this litigation. At the conclusion of this action and any appeals, Plaintiff shall return to Defendant all such confidential information and copies thereof.

In Request 19, Plaintiff seeks all documents from 1995 through 1999 relating to the discipline of train crews consisting of at least one Engineer and one Conductor. Defendant objects to this request on the grounds that it is overly burdensome, harassing, overly broad in time and overly broad in scope.

1. Overly burdensome and harassing

The only evidence Defendant provides to establish that Request 19 is overly burdensome and harassing is that its IT department would have to formulate an inquiry to retrieve the information sought. Defendant has submitted no affidavit or other proof demonstrating that responding to Request 19 would impose an undue burden. Based on the facts presented, Defendant has failed to establish undue burden or harassment.

2. Overly broad in scope

"In determining the geographic scope of discovery for non-class action complaints, the `most natural focus is upon the source of the complained discrimination — the employing unit or work unit.'" Mackey v. IBP, Inc., 167 F.R.D. 186, 195 (D.Kan. 1996) (quoting Heward v. Western Elec. Co., No. 83-2293, 1984 WL 15666, at *6 (10th Cir. July 3, 1984) (citations omitted)). That focus may be expanded, however, if the plaintiff can show the requested information is "particularly cogent" to the matter. See Heward v. Western Elec. Co., No. 83-2293, 1984 WL 15666, at *6 (10th Cir. July 3, 1984). Information which may establish a pattern of discrimination is discoverable even when the action seeks only individual relief. Johnson v. W.H. Stewart Co., 75 F.R.D. 541, 543 (W.D.Okla. 1976)). When a motive or intent of a defendant employer is at issue, information concerning its conduct towards employees other than the plaintiff is relevant. See Spulak v. KMart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990).

Although Kerr was employed in Pittsburg, Kansas when he was terminated, the decision to discharge Kerr was not made by a local trainmaster, but instead was made by Reardon, the head of the Gulf Division. Reardon ultimately is responsible for all discipline imposed upon employees within his division. Although Reardon may not always be the decision-maker in these circumstances, it has been represented to the Court that local decision-makers regularly consult Reardon before termination of probationary employees. Thus, Reardon's motive and intent are relevant here.

Based on these facts, information regarding disciplinary action of train crews in the Gulf Region consisting of at least one conductor and one engineer appears to be pertinent in comparing Plaintiff's treatment to that of other conductors who worked on a crew with an engineer and were involved in violation of the rules. Accordingly, Defendant shall respond to Request 19 for the Gulf Region.

3. Overly Broad in Time

Defendant shall respond to Request 19 for the time period from January 1995 through December 1998 based on the discussion set forth in section A(3) of this Memorandum and Order, supra.

In Request 25, Plaintiff requests Engineer Knight's personnel file for all periods of his employment with Defendant. Defendant contends Knight's personnel file has no probative value and is not likely to lead to the discovery of admissible evidence. The Court disagrees. Knight was held jointly responsible with Kerr for the violation at issue in this case. This is a disparate treatment case comparing discipline of two employees involved in the same safety rules violation. Given these circumstances, the Court finds information within the personnel file of Knight is relevant and/or reasonably calculated to lead to the discovery of admissible evidence. See McCoo v. Denny's Inc., 192 F.R.D. 675, 687 (D.Kan. 2000) (citations omitted) (where employee was involved in the incident that led to the lawsuit, court considered employee's personnel file relevant and/or reasonably calculated to lead to the discovery of admissible evidence and therefore discoverable). As noted earlier, there appears to be good cause to protect the confidentiality of the requested personnel file; thus, the Court orders the documents provided in response to Request 25 be deemed confidential. Plaintiff shall use them for no purpose other than this litigation. At the conclusion of this action and any appeals, Plaintiff shall return to Defendant all such confidential information and copies thereof.

Based on the discussion above, it is hereby ordered that Plaintiff's Motion is denied in part and granted in part as set forth below:

(1) Defendant shall respond to Interrogatory 16 for the time period from January 1995 through December 1998;

(2) Defendant shall produce the personnel file of Reardon and Knight and such documents are hereby deemed confidential. Plaintiff shall use them for no purpose other than this litigation. At the conclusion of this action and any appeals, Plaintiff shall return to Defendant all such confidential information and copies thereof; and

(3) Defendant shall respond to Request 19 for the time period from January 1995 through December 1998.

IT IS SO ORDERED.