United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO COMPEL AND MOTION
FOR PROTECTIVE ORDER
KENNETH G. GALE U.S. MAGISTRATE JUDGE.
before the Court is Plaintiff's Motion to Compel (Doc.
42) and Defendant's Motion for Protective Order (Doc.
54). Having reviewed the submissions of the parties,
Plaintiff's motion (Doc. 42) is GRANTED
in part and DENIED in part and
Defendant's motion (Doc. 54) is GRANTED
in part and DENIED in part.
who is Hispanic and a U.S. citizen, is a former employee of
Defendant Packers Sanitation Services, Inc.
(“PSSI” or Defendant). Defendant provides
sanitation services to other companies, including the
National Beef Plant (“Plant”) in Liberal, Kansas.
Plaintiff alleges gender and racial discrimination,
harassment, and retaliation as well as common law retaliatory
discharge and violations of state and federal wage laws.
contends that during her employment with Defendant, she
refused demands from her supervisor that she pay him for a
more favorable position at the Plant. Plaintiff contends that
as a result of her refusal, she was moved “to a more
physically demanding position which resulted in her injuring
her neck.” (Doc. 43, at 1-2.) She contends that she
complained about this “extortion attempt, ” but
while no action was taken against her supervisor, Plaintiff
was “moved to a more physically demanding position . .
. which exacerbated her work injury.” (Id., at
2.) Plaintiff also alleges that she suffered retaliation for
rebuffing her supervisor's “indirect request for
sexual favors.” (Id.) Defendant generally
denies Plaintiff's allegations.
before the Court is Plaintiff's motion to compel
regarding Defendant's responses to Plaintiff's
Requests for Production Nos. 6, 16, 21, and 22. (Doc. 42.)
Also pending is the motion for protective order (Doc. 54)
filed by Defendant relating to Plaintiff's “Notice
Duces Tecum to Take Deposition of Designated Agent of
Defendant Packers Sanitation Services, Inc.” (Doc. 39),
which identifies 26 categories of potential deposition
testimony and corresponding documents to be produced.
26(b) states that
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at state in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
such, the requested information must be nonprivileged,
relevant, and proportional to the needs of the case to be
discoverable. “Federal Rule of Civil Procedure 26(c)
confers broad discretion on the trial court to decide when a
protective order is appropriate and what degree of protection
is required.” Layne Christensen Co. v. Purolite
Co., 271 F.R.D. 240, 244 (D. Kan. 2010) (quoting
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36
Plaintiff's Motion to Compel (Doc. 42).
moves the Court for an order compelling Defendant to provide
further responses to Requests for Production 6, 16, 21, and
22. (See generally Doc. 43.) The Court will address
the document requests in turn.
Requests Nos. 6 and 21.
No. 6 seeks documents regarding “any complaint of any
employee regarding supervisors and/or managers at the
National Beef Plant in Liberal requesting money and/or sexual
favors in exchange for better positions with the plant from
January 1, 2013 to present.” (Doc. 43-1, at 5.)
Defendant responded by objecting that the request is
“overly broad, unduly burdensome, not reasonably
limited in scope, ” and seeks documents that are
privileged and/or irrelevant. (Id.) Defendant also
complains that the request seeks information involving
different decision makers, supervisors, and/or departments.
No. 21 asks for documents regarding “any charge,
complaint, investigation or civil action alleging race and/or
sex discrimination, harassment, and retaliation filed against
you . . . in the past five (5) years by any prior or current
employee, staff member, administrator, manager or supervisor
who worked” at the Plant at issue. (Id., at
11.) In addition to incorporating its objections to
Interrogatory No. 24, Defendant produces charges of
discrimination filed by two employees, Elizabeth Valdovinos
and Kathy Serrano. (Id.)
states that Defendant refused to produce the documents
responsive to Request No. 6 and, in response to Request No.
21, produced only two Charges of Discrimination, one of which
was made by a former plaintiff in this case. (Doc. 43, at 4.)
Plaintiff argues that
Defendant has failed and refused to produce their responses
to agencies, investigation notes/documents or any other
documents. . . . First, as information is that at least four
women have complained about sexual harassment and other
issues to management, it is impossible to believe that no
documents, notes or investigation material were created.
Likewise, the police were notified of the sexual harassment
and/or extortion attempts and sent an officer to the facility
to interview a supervisor. While the sexual harasser was
allegedly terminated for a short period, he was rehired under
a different name. . . . [Defendant] should not be allowed to
hide the documents and information necessary to prosecute
(Id.) Plaintiff also argues that the five-year
temporal limitation she placed on her requests is reasonable.
responds that it did respond to Request No. 6, identifying
complaints of a “‘supervisor requesting money
and/or sexual favors . . . in exchange for better
positions'” and referring Plaintiff, by Bates
number, to responsive documents produced. (Doc. 50, at 8.) As
to Request No. 21, Defendant identified complaints of race
and/or sex discrimination, harassment, and retaliation from
January 1, 2016, at December 31, 2017, and provided
responsive documents for that timeframe. (Id., at
8-9.) Defendant continues that “Plaintiff's
contention that at least four women have complained about
sexual harassment and other issues to management is again,
unfounded. Plaintiff's assertion that the police sent an
officer to the facility to interview a supervisor is equally
without merit and not supported by the facts of this
case.” (Id., at 9.) Defendant also
argues that complaints from women regarding “other
issues” unrelated to the claims at issue this case, was
not requested by Plaintiff and is irrelevant regardless.
Court overrules Defendant's objections to Requests Nos. 6
and 21. The Requests are not overly broad or unduly
burdensome as written. The Requests seek information
regarding other employee complaints of demands for money or
sexual favors as well as complaints, investigations and civil
actions related to race or sex discrimination, harassment or
retaliation. This information is clearly relevant to
Plaintiff's claims and proportional to the needs of the
Court also overrules Defendant's self-imposed two-year
temporal limitation on Plaintiff's requests. The Court
finds that Plaintiff's requests for this information over
a five-year period to be reasonable. See e.g. Moss v.
BCBS of Kansas, Inc., 241 F.R.D. 683, 692 (D. Kan.
2008). Plaintiff's motion is, therefore,
GRANTED. Defendant is instructed to identify
and provide the requested information for complaints of a
“‘supervisor requesting money and/or sexual
favors . . . in exchange for better positions'” as
well as complaints of race and/or sex discrimination,
harassment, and retaliation from January 1, 2013, to the
present. The parties are advised that the Court will be
setting a scheduling conference to discuss the deadline for
production and other issues relating to this Order.
Request No. 16.
request seeks “each personnel file, human resource
file, or investigative file Defendant maintained on Mr.
Esparza, Ms. Martinez, Mr. Ramirez, and/or Mr. Saenz. This
request includes files regarding that were created or
maintained on Mr. Esparza, Ms. Martinez, Mr. Ramirez, and/or
Mr. Saenz by individual managers.” (Doc. 43-1, at 9.)
Plaintiff has identified these individuals as “the
people who supervised, harassed and retaliated against female
employees at PSSI.” (Doc. 43, at 5.) Defendant objects
that the request is “overly broad, unduly burdensome,
violates privacy interests, ” and seeks irrelevant
information. (Doc. 43-1, at 9.) Even so, Defendant
“agrees to produce documents from Esparza, Martinez,
Ramirez, and Saenz's personnel files that reflect
disciplinary action taken against them for discriminatory,
harassing, and retaliatory conduct [but] state[s] that no
such documents exist.” (Id.)
argues that Defendant's refusal “to produce
anything other than what it deems to show disciplinary
actions actually taken against these individuals for
discrimination, harassment or retaliation” is improper.
(Doc. 43, at 5.) Plaintiff argues that limiting the
production in this manner would remove information as to
“complaints where discipline ...