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Simmons v. Amsted Rail Co., Inc.

United States District Court, D. Kansas

September 12, 2019



          James P. O'Hara U.S. Magistrate Judge.

         In this wrongful-discharge case, plaintiff Frederick L. Simmons alleges defendant Amsted Rail Company, Inc., terminated his employment because of his age and because he sustained an injury that resulted in a workers' compensation claim. Plaintiff has filed a motion to compel defendant to respond to certain interrogatories and document requests (ECF No. 52). Because the court finds the discovery seeks relevant information and is not unduly burdensome, defendant's objections are overruled and the motion is granted.

         Plaintiff began working as a mechanic at defendant's Kansas City, Kansas facility[1]in 2009.[2] On September 27, 2017, plaintiff was injured while performing preventive maintenance (lubrication) on a running machine. Plaintiff missed one week of work and then was placed on light-duty work for approximately three weeks. Plaintiff submitted a workers' compensation claim for his injury. Defendant terminated plaintiff on October 23, 2017. Defendant informed plaintiff he was being terminated for violating one of the company's safety policies, specifically the “lock-out tag-out policy, ” which required the machine to be turned off prior to maintenance. Plaintiff filed suit, alleging defendant's stated reason for termination was pretextual and that he was actually terminated based on his age (57 at the time) and/or as retaliation for making a workers' compensation claim.

         Plaintiff served interrogatories and document requests on defendant. Defendant responded, both before and after the motion was filed, but objected to certain interrogatories and requests. It appears there are now six issues in dispute, which the court now addresses.

         Interrogatory No. 3 and Request No. 20.

         Interrogatory No. 3 asked defendant to identify each multi-craft, maintenance, and production employee[3] “at its KCK facility who was investigated and/or disciplined (but not terminated) for violating any safety rule or policy at any time since January 1, 2015, ” and to provide the employee's date of hire, date of birth, last held position, contact information, and the rule/policy for which the employee was investigated or disciplined.[4] Related Document Request No. 20 sought, for each person identified in Interrogatory No. 3, “documents reflecting his/her date of hire, disciplinary records during the last four years of his/her employment, performance reviews and/or evaluations during the last four years of his/her employment, documents regarding his/her safety violation (including any investigation summary and/or incident report), and documents reflecting the date and reason(s) for his/her termination.”[5]

         Defendant asserts two objections to Interrogatory No. 3, both of which the court overrules.[6] First, defendant asserts responding to the request would be unduly burdensome because it would require defendant to manually review the personnel files of “60-plus” employees.[7] A party asserting undue burden as an objection must present support that objection with an affidavit or other evidentiary proof of the time or expense involved in responding to the discovery request.[8] Thus, as the party objecting to discovery, defendant bears “the burden to show facts justifying [its] objection by demonstrating that the time or expense involved in responding to requested discovery is unduly burdensome.”[9] This imposes an obligation on defendant “to provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure required to produce the requested documents.”[10] Defendant has not attempted to meet this evidentiary burden. For example, defendant voluntarily undertook a review of approximately 25 employee-personnel files that would be responsive to Interrogatory No. 3 if the interrogatory were limited to a certain category of employee and to two years. But defendant has said nothing about the time or expense incurred in that review or attempted to extrapolate the sum to reviewing another 40 or so files. Rather, defendant simply makes the conclusory statement that continuing the search of the additional employees covered by the interrogatory would be burdensome. This is insufficient to support defendant's burden.

         Next, defendant asserts Interrogatory No. 3 is “overbroad and not proportional to the needs of the case” because it requested information about employees disciplined for violating any safety rule or policy, rather than limiting its inquiry to employees disciplined (D. Kan. 2004) and McCoy v. Whirlpool Corp., 214 F.R.D. 642, 646 (D. Kan. 2003) (overruling objection of undue burden based in part on lack of affidavit or other proof)). for failing to “lockout/tagout.”[11] Fed.R.Civ.P. 26(b)(1) allows parties to “obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” “[A]ny matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case” will be deemed relevant.[12] Plaintiff has taken the position in this case that defendant's stated reason for terminating him-violation of a safety rule-is a pretext for discrimination/retaliation. The court agrees with plaintiff that the manner in which defendant treated other safety violations by maintenance and production employees at the same facility directly bears on the question of pretext and is not overbroad. If defendant did not terminate an employee who committed a safety violation the factfinder decides is more dangerous than a lockout/tagout violation, the factfinder could conclude defendant's stated reason for terminating plaintiff was pretextual. To the extent defendant broadly labels the requested discovery “not proportional, ” defendant has given the court no ability to weigh this question because, as discussed above, defendant has not addressed the burden and expense of responding to Interrogatory No. 3.[13]

         Defendant raises no separate objection to related Request No. 20, but instead asserts only that it is “similarly overbroad and erroneous.” Thus, because defendant hangs its argument on its argument to Interrogatory No. 3, its objection to Request No. 20 is overruled for the same reasons. Defendant is ordered to respond to Interrogatory No. 3 and Request No. 20, as limited by plaintiff (i.e., as applied to multi-craft, maintenance, and production employees).

         Interrogatory No. 5.

         Interrogatory No. 5 requested identification and contact information for each person involved in administering plaintiff's workers' compensation claim. Defendant does not assert an objection to this interrogatory and states it “produced communications with its third-party administrator concerning Plaintiff's injury, from which the requested information may be ascertained pursuant to Federal Rule of Civil Procedure 33(d).”[14] Defendant identified 130 pages of documents from which it alleged plaintiff could ascertain the answer to the interrogatory. Plaintiff argues that defendant's identification of such a large number of documents was inadequate to answer the interrogatory and, in any event, the documents do not reveal the identity and contact information sought by the interrogatory.

         The court agrees that defendant's reference to 130 pages of documents in response to a relatively simple question is insufficient in this instance. This court has held,

[A] party does not comply with Rule 33(d) by merely referring another party to a large mass of records hoping the party will be able to glean the requested information from them. . . . Responding parties must specifically identify in their interrogatory answers which documents contain the responsive information. Otherwise, the interrogatories must be answered without referring to records.[15]

         Perhaps more troubling than the sheer number of documents defendant referenced is plaintiff's undisputed allegation (which defendant has not sought leave to challenge in a sur-reply) that the documents do not contain information from which plaintiff can ascertain an answer to Interrogatory No. 5. Accepting this as true, the court finds defendant has not met Rule 33(d)'s identification requirement.[16] Defendant is therefore ordered to answer Interrogatory No. 5 in a written response.

         Interrogatory ...

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