MEMORANDUM AND ORDER
Gerald L. Rushfelt U.S. Magistrate Judge
The Court has for consideration Plaintiff’s Motion to Compel (ECF 44). Pursuant to Fed.R.Civ.P. 37 and D. Kan. Rule 37, it asks the Court to compel Defendants to withdraw their objections or fully respond to Plaintiff’s Interrogatories 2, 3, 4, and 7 through 10 and Document Requests 6, 7, 13, 16 through 20, and 23, 24 and 25. With few exceptions Defendants oppose the motion. For the following reasons, the Court grants it in part and denies it in part.
By his amended complaint (ECF 47) Plaintiff seeks actual and punitive damages upon his claims alleged under Title VII and 42 U.S.C. § 1981 for actual discrimination in his employment and under Kansas common law for retaliatory discharge by one or both Defendants. Defendants deny liability and assert a number of affirmative defenses.
Interrogatory 2 asks Defendants to state their gross revenues and profits from January 2007 to present. Defendants object on grounds of irrelevancy, confidentiality, and that the interrogatory “is overly broad in temporal scope.” Plaintiff concedes that such information as may be provided may be limited in temporal scope, consistent with McCloud v. Board of Geary County Comm’rs., Case No. 06-1002-MLB-DJW, 2008 WL 1743444, at *4 (D. Kan. Apr. 11, 2008). Against the objection of confidentiality, Plaintiff also proposes that the requested information be subject to the Protective Order in this case (ECF 83) and with the added requirement that it be available only for counsel to view.
The Court grants the motion in part and overrules it in part with regard to Interrogatory 2. The Court finds Interrogatory 2 relevant to the issue of punitive damages. It also agrees that the objection of confidentiality does not defeat the discovery. The Court will instead address that concern by extending the Protective Order to protect the responsive information with an added requirement that only counsel and not Plaintiff himself shall be privy to it.
As suggested by McCloud, the Court further finds Interrogatory 2 too broad in temporal scope. Accordingly, Defendants shall answer it no later than the commencement of trial. Such information may be limited to what are then as to each responding Defendant its current gross revenues and profits. An additional condition is that the issue of punitive damages at that point remains in the case as to the Defendant(s) thus answering the interrogatory.
Interrogatory 3 seeks the following:
3. Identify any person who, within the last five years, has complained either formally or informally to Defendants regarding discriminatory or retaliatory conduct of Jeff Briggs, Dale Wethered, Steve Landers, Adam Brazos, Sandy Bradley or Chuck Cummings. For the individual identified, please provide the name, address, and telephone number of the person, including the relationship of the person indicated to the employer, dates of employment, the nature of the complaint leveled, the date of the complaint, and the results of any investigation and the action taken, if any, regarding the complaint.
Defendants objected to Interrogatory 3 on three grounds: that it is not reasonably calculated to lead to the discovery of admissible evidence; that it is overly broad in seeking identification of “any person, ” rather than “similarly situated employees, ” who have complained to Defendants about discriminatory or retaliatory conduct; and that it might seek information protected as attorney work product.
The parties appear to agree that prior acts of discrimination or retaliation may be relevant to show motive or intent of a party. The Court agrees that prior acts may be admissible. It overrules the objection that the requested discovery is not reasonably calculated to lead to the discovery of admissible evidence.
Plaintiff has also agreed that his interrogatories do not seek information protected as work product. He also waives any requirement for Defendants to provide a log to support their claims of work product.
The Court agrees with Defendants that Interrogatory 3 is overly broad on two grounds: First, it seeks identification of “any person, ” rather than similarly situated employees, who may have complained to Defendants about discriminatory or retaliatory conduct. Second, it seeks discovery of misconduct by designated persons whom Plaintiff has neither pleaded nor otherwise shown to have committed discriminatory or retaliatory conduct against himself. The parties agree that Plaintiff has accused Jeff Briggs and Dale Wethered of discriminatory and retaliatory misconduct. But Defendants deny that there has been any adequate showing of misconduct by Steve Landers, Adam Brazos, Sandy Bradley, or Chuck Cummings.
The Court first addresses the reason for Interrogatory 3 to be limited to complaints by similarly situated employees, rather than by “any person.” Plaintiff asserts claims for employment discrimination, based upon allegedly disparate treatment by the employer(s). Controlling case law provides that Plaintiff must thus prove discrimination by showing he was treated to his detriment and differently than other “similarly situated employees.” Complaints by other employees, rather than “any person, ” are thus relevant. To be “similarly situated” requires that Plaintiff and the other complaining employees be subject essentially to the same or similar working conditions, so as to create a reasonable basis for comparing how the employer treated and disciplined them.
Defendants argue that “similarly situated” employees should be only those who, like Plaintiff, were employed as Finance and Insurance Manager and who signed the “Finance & Insurance Code of Conduct.” The facts in the memoranda of the parties, including their accompanying exhibits, indicate otherwise. Jeff Briggs was General Manager of Olathe Dodge, where Plaintiff worked. Briggs apparently directly supervised Plaintiff. Other employees within the various departments at Olathe Dodge worked under intermediate supervisors. Mr. Briggs exercised the general management and overall supervision of all employees, however, not just the Finance and Insurance Manager. As General Manager, Briggs addressed work-related problems, including those involving employee relations and discipline. And he did so for the dealership, not just for its finance and insurance department. Page 5 of the employee handbook of Defendant(s) includes the following instruction for addressing a problem of employee relations: “If you prefer not to speak with your immediate supervisor, or if you feel your immediate supervisor cannot or has not satisfactorily resolved the problem, contact the General Manager. If you have a complaint of harassment, discrimination or accommodation, please refer to the Equal Employment Opportunity policy or the Policy Against Harassment in this handbook.” By contrast, the Finance & Insurance Code of Conduct served an altogether different purpose. It related to the functions of finance and insurance, not to matters of more general working conditions, employee relations, and discipline.
Plaintiff suggests that similarly situated employees should include those who work at other facilities of Defendants, including their home office in Arkansas. He identifies Steve Landers, either as president or otherwise an officer of Defendants, as a person who participated in his alleged discrimination and retaliation. During a visit to the Olathe dealership Plaintiff reported the “offensive, derogatory and retaliatory conduct of Briggs and Wethered to Landers.” Landers replied, “I know you can leave right now and sue the crap out of me.” Briggs then told Plaintiff he knew he had met with Landers and stated, “If you don’t get your ass back to work, you can just stay home.” From these curious exchanges Plaintiff suggests that Landers himself discriminated and retaliated against him. And, consequently, all facilities of Defendants, not just Olathe, should be included in the geographical scope of the requested discovery. The Court could speculate that Plaintiff is correct in his suggested assumption. But it could also speculate that the quoted conversation simply suggests that Landers became aware of a problem that should be addressed at the local level by the General Manager of the Olathe facility. The Court does not conclude from these two comments that Landers must have injected himself into the disciplinary process for which Briggs was responsible. Upon this meager evidence the Court declines to speculate. It declines, therefore, to jump to a conclusion that all facilities of Defendant should be targeted for the requested discovery.
In this case the Court also finds that similarly situated employees should include those who worked at the same geographical facility, i.e. the Olathe, Kansas, dealership of Defendant(s) and under the general managership of Jeff Briggs. Plaintiff himself worked at that facility ...