Free Uncategorized - District Court of Arizona - Arizona

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Quarles & Brady Streich Lang LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) ([email protected]) Dawn C. Valdivia (#020715) ([email protected]) Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-JWS PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER

Defendant Charles Schwab & Co., Inc.'s ("Schwab") Motion for Protective Order should be denied because Plaintiff Marcela Johnson does not request vague, overly broad, or unduly burdensome information in her Notice of Fed. R. Civ. P. 30(b)(6) deposition. Schwab has again taken contradictory positions with regard to discovery in this litigation by continuing to insist that Ms. Johnson disclose collateral and unrelated information that might lead to the discovery of admissible evidence while at the same time denying her information that goes to the heart of her claims. In its recently filed motion to compel, Schwab seeks to compel Ms. Johnson to provide information regarding any and all conversations with current and former Schwab employees (rejecting her offer to provide information regarding conversations specific to this lawsuit) and now asks the Court to protect Schwab from providing information regarding whether Ms. Johnson, a Hispanic female, was treated differently than other employees. Similarly, Schwab seeks to compel very personal and irrelevant information regarding Ms. Johnson's past sexual conduct and the sexual conduct of a non-party while at the same time asks this Court to deny her

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information necessary to complete a comprehensive calculation of her damages. Schwab cannot have its cake and eat it too. For the reasons set forth below, Ms. Johnson asks this Court to deny Schwab's Motion. I. FACTUAL BACKGROUND On September 8, 2003, Ms. Johnson served Schwab with written discovery requests. Responses were due on October 10, 2005. On September 23, 2005, Ms. Johnson notified Schwab of her intent to depose Schwab pursuant Rule 30(b)(6), Fed. R. Civ. P. on October 11, 2005. On October 5, 2005, just days before the discovery

responses were due and the deposition was scheduled, Schwab requested an extension of time to respond to Plaintiff's discovery. [Letter from Michelle Ganz to Dawn C. Valdivia, attached as Exhibit A.] Plaintiff's Counsel told Schwab's counsel that they were not inclined to agree to an extension because they needed review the discovery responses prior to the scheduled deposition. [Letter from Valdivia to Ganz attached as Exhibit B.] The subsequent day, Schwab objected to the 30(b)(6) deposition and informed Plaintiff that Schwab would not make witnesses available on the scheduled deposition date. [Exhibit B to Schwab's Motion for Protective Order.] Schwab then filed a motion

asking the Court for additional time to respond to Plaintiff's discovery, which was granted on October 11, 2005. [Dkt. No. 42.] In the Order, this Court specifically instructed Schwab to "cooperate with plaintiff with respect to the Rule 30(b)(6) deposition in order to minimize further delay." [Dkt. No. 45.] On October 17, 2005, Schwab provided Plaintiff with one date (November 18, 2005) for the 30(b)(6) deposition. Schwab has not provided any other dates to Plaintiff and instead filed the instant Motion for Protective Order. Additionally, Schwab is now demanding dates for Plaintiff's deposition even though it has refused to provide additional dates to Plaintiff. Schwab's actions have caused undue delay in the discovery process and have held this lawsuit hostage. II. LEGAL ANALYSIS This Court, as are most federal judges, fully aware of the need to allow plaintiffs broad leeway in obtaining information about prior discrimination by an employer. Courts
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have long recognized that Title VII plaintiffs will often experience difficulty in rebutting with direct evidence an employer's account of its own motives for terminating or rejecting an employee, because "defendants of even minimal sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating it. . . ." Riodan v. Kempiners, 831 F.2d 690, 697-698 (7th Cir. 1987). This general statement is consistent with the case law cited by Schwab in its Motion for Protective Order. See e.g., Jackson v. Montgomery Wards & Co., 173 F.R.D. 524, 528 (D. Nev. 1997). The burden is upon the party seeking a protective order to "show good cause" by demonstrating specific prejudice or harm that will result if the protective order is not granted. See Rivera v. Nibco Inc., 364 F.3d 1057, 1064 (9th Cir. 2004) citing Philips Ex. Rel. Est. of Byrd v. G.M. Corp., 307 F.3d 1206 (9th Cir. 2002) citing Beckman Indus., Inc. v. International Ins. Co., 966 f.2d 470, 476 (9th Cir. 1992) ("broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test"). Courts should avoid placing unnecessary limitations on discovery in Title VII cases.1 Jackson, 173 F.R.D. at 527 (citations omitted). Here, Schwab has failed to meet its burden to show that good cause exists for the protective order because it has not demonstrated any specific prejudice or harm that will result if the order is not granted. Despite Schwab's accusations, Ms. Johnson's requests are narrowly tailored to the claims in her lawsuit. The basis of Plaintiff's lawsuit is that she was terminated in retaliation for engaging in protected activity (i.e. reporting unwelcome conduct in the workplace) and that she was discriminated against based on her gender and her national origin, Hispanic. To establish a claim for retaliation, Ms. Johnson is not required to show that her underlying complaint had merit, the test is whether the complaining party believed that he or she complained about unlawful conduct and whether the employer retaliated against the employee for his or her complaint. See Carmen v. San Francisco United School District, 237 F.3d 1026, 1028 (9th Cir. 2001) (whether claim had merit is irrelevant because an employer may not retaliate against
1

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

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someone whether or not claim is meritorious); Gomez v. Moyo, 40 F.3d 982 (9th Cir. 1995); Trent v. Valley Electric Association, Inc., 41 F.3d 524 (9th Cir. 1994). Additionally, the law in this Circuit recognizes the relevance and admissibility of evidence of other employees who were similarly situated to plaintiff. Heyne v. Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995) (evidence of sexual harassment of other employees relevant to rebuff employer's proffered reason for terminating plaintiff). See also

Jackson, 173 F.R.D. at 527 ("discovery of prior complaints of discrimination is permitted in order to prove that the reasons articulated for an adverse employment action are a pretext for discrimination.") Accordingly, Ms. Johnson is entitled to discovery of prior complaints or reports of "unwelcome conduct," "offensive behavior," or any protected class defined by Title VII to prove that Schwab's stated reason, i.e. Ms. Johnson brought a false claim of sexual harassment against a co-worker, was pretext for retaliation and discrimination. A. Ms. Johnson's Requests are Not Vague and Ambiguous.

Request Nos. 1-8 in Plaintiff's Notice of Rule 30(b)(6) deposition seek information relating to similarly situated individuals employed by Schwab during the time period that Plaintiff was employed by Schwab.2 Schwab's objection to the terms "reports" and "complaints" as vague and ambiguous is without merit. Plaintiff did not, and does not need to, further define those terms because she seeks information regarding all complaints or reports ­ verbal and written, formal and informal, internal and external, about employees and non-employees, made by individuals employed by Schwab during the specified time period.3 The terms complaints and reports do not require delineation and it is clear what information Plaintiff seeks. Additionally, Schwab's objections to the terms "unwelcome conduct," "offensive behavior," and "retaliation" are a waste of the parties' and the Court's time and money.
2

Plaintiff's notice mistakenly cites to 2005 instead of 2003 in Requests 3 and 8. Plaintiff only seeks information for the time period during which she was employed at Schwab - November 30, 1998November 30, 2005. 3 Contrary to Schwab's assertion, the requests are not vague and ambiguous as to the complaining party; they specifically ask for complaints or reports made by Schwab employees.

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Given the basis of Plaintiff's lawsuit, it is obvious that Plaintiff is seeking information regarding other employees who complained or reported (either verbally or in writing, formally or informally, internally or externally, about employees or non-employees) to Schwab that they thought they had been subjected to unwelcome conduct, offensive behavior, or retaliation. Plaintiff specifically included the terms "unwelcome conduct" and "offensive behavior" instead of limiting the requests to "discrimination" because when she reported to management that a co-worker had rubbed her shoulders and that his behavior was unwelcome, she did not use the terms "discrimination" or "harassment" and she wanted to be sure to encompass any complaints or reports made by other employees in which they stated that another employee "offended" them or made them feel "uncomfortable." These types of complaints can put the employer on notice that the employee is opposing an unlawful employment practice. B. Ms. Johnson's Requests are Not Unduly Burdensome or Oppressive.

Similarly, Ms. Johnson's requests are not unduly burdensome or oppressive. Contrary to Schwab's assertion, Ms. Johnson does not seek "nationwide data on unrelated complaints." Her requests are limited to the State of Arizona. This is established by the first Request that is limited to "Schwab employees in the State of Arizona." On page four, starting on line 24, Schwab provides the Court with certain information that is not based upon any response to discovery, Disclosure Statement, or affidavit. Specifically, Schwab states, "the decision to terminate plaintiff was made solely by managers within the 24th Street facility." Schwab has not disclosed or provided in its answer or response to discovery requests any detailed information consistent with the above-mentioned statement. It is also interesting that they did not provide the Court or counsel with the name of the individuals who were "solely responsible for the decision to terminate plaintiff." They also fail to discuss whether those individuals also have

responsibility over other employees in Arizona. The fact that those individuals referenced in the Response may be physically located at the 24th Street facility does not negate the
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possibility that they also have responsibility over employees in other facilities within Arizona. These types of questions are answered during discovery. These types of

questions are the basis upon which the Court needs to make determinations on motions in limines. As stated in Jackson, cited extensively by Schwab, the scope of discovery is broad and discovery should be allowed, unless the information sought has no conceivable bearing on the case. Jackson, 173 F.R.D. at 527. Moreover, the cases cited by Schwab do not stand for the general proposition that discovery in Title VII cases is limited to the facility in which the plaintiff was employed. To the contrary, trial courts, in analyzing the appropriate scope of discovery, focus on the facts of the particular case. For example, in Scales v. Bradford, 925 F.2d 901, 906 (6th Cir. 1991) the court did not, as argued by Schwab, indicate that discovery must be limited to the local facility in which plaintiff worked. Specifically, the court found that plaintiff's case focused on the treatment by a specific individual while working in a specific office. The court noted that plaintiff's complaint focused on three separate occasions in which this individual took certain specific action while employed at a specific office.4 Schwab also argues that Ms. Johnson seeks information about complaints and reports related to allegations she has not raised in her complaint. This argument is incorrect because Schwab is telling this Court, and apparently Ms. Johnson, what she has alleged ­ sexual harassment and retaliation. Ms. Johnson's Complaint, however, is clear that she is alleging sexual harassment, discrimination based on sex and national origin, and retaliation. Regardless of Schwab's attempt to unilaterally narrow her claims, Ms. Johnson is entitled to complaints or reports made by employees during the specified time period within Arizona concerning "offensive behavior," "discrimination," "retaliation," "harassment," "unwelcome conduct," and "any protected status as defined by Title VII." For example, information regarding a Caucasian male employee who complained or reported to his manager that another employee (or non-employee, such as a customer or

4

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During the course of her employment with Schwab, Ms. Johnson and the alleged harasser worked at facilities other than the one located at 24th Street. Indeed, Ms. Johnson worked at Schwab in California for a period of time.

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vendor) made offensive remarks to him in the workplace is highly relevant to Plaintiff's retaliation claim; especially if the Caucasian male is not terminated after making the report. Similarly, information regarding another Hispanic female who was terminated after complaining that a co-worker touched her causing her to feel uncomfortable is relevant to Ms. Johnson's claim of retaliation. In this same regard, Plaintiff is entitled to information about a homosexual Caucasian male who was not terminated after complaining (formally or informally, verbally or in writing, internally or externally, about an employee or a non-employee) that he was subjected to offensive conduct because of his sexual orientation is relevant to Ms. Johnson's claims. Again, it is not relevant whether the underlying complaint has merit, as long as the employee believes it has merit and the employer terminated the employee for the complaint, a plaintiff can establish a claim of retaliation. See Carmen, 237 F.3d at 1028; Gomez, 40 F.3d 982; Trent, 41 F.3d 524. As Schwab acknowledged in its Motion, Ms. Johnson's discovery requests for information regarding prior complaints is discoverable if limited to those claims brought by her. Because Ms. Johnson has brought a claim of retaliation, she is entitled to

information regarding claims of other employees who complained. Ms. Johnson is not required to limit her claim of retaliation to complaints of sexual harassment because, as shown by the examples, complaints or reports of matters other than sexual harassment are highly relevant to establish that Schwab active with retaliatory motive. C. Plaintiff Does Not Seek Confidential and Highly Personal Information.

Schwab cites no legal authority for the proposition that names of current and former employees who were similarly situated to Ms. Johnson are confidential and personal. In support of its position, Schwab cites Guruwaya v. Montgomery Ward, Inc., 119 F.R.D. 36 (N.D. Cal 1988). The plaintiff in Guruwaya sought the names, address, and telephone numbers of defendant's employees who filed discrimination claims with public agencies. The court denied the plaintiff's request based on the rationale that the disclosure of complainant names would have a chilling effect on future complaints, since
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the information would be available to defendant companies as well as other complaining employees. Id. The court's rationale is inconsistent with Ninth Circuit law.5 In this Circuit, evidence of similar conduct by an employer toward employees other than the plaintiff is relevant and admissible to prove motive or intent in discharging the plaintiff. Heyne, 69 F.3d at 1479-1480 (9th Cir. 1995) (sexual harassment of others, if shown to have occurred, is relevant and probative of defendant's general attitude of disrespect toward female employees). "As a general rule, the testimony of other

employees about their treatment of the defendant [employer] is relevant to the issue of the employer discriminatory intent." Id. citing Spulack v. K Mart Crop, 894 F.2d 1150, 1156 (10th Cir. 1990). It is axiomatic that if Plaintiff is permitted to introduce evidence, including testimony, of other employees who were similarly situated to her, she is permitted to conduct discovery regarding those potential witnesses. Indeed, Rule 26(a) of the Federal Rules of Civil Procedure contemplates the disclosure of names, address, and telephone numbers. Schwab is seeking to preclude Ms. Johnson from discovering the names of potential trial witnesses to which she is entitled. Even the case cited by Schwab, Cook v. Yellow Freight System, Inc., 132 F.R.D. 548 (E.D. Cal. 1990), overruled on other grounds by Jaffee v. Redmond, 518 U.S. 1 (1996) recognizes that obtaining the testimony of others who may have been subjected to behavior similar to plaintiff is "highly relevant to the plaintiffs' case." Id. at 552. Schwab asks this Court to fashion production similar to that set forth in the Cook case, but in that case the plaintiff sought addresses and telephone numbers. Here, Ms. Johnson currently seeks only employee names, not addresses or telephone numbers. Schwab did not cite, and Plaintiff was unable to locate, any case law to support the position that names,
5

The court's reasoning in Guruwaya is also flawed because the court relied on authority that does not support its reasoning. The court relied on Usery v. Ritter, 547 F.2d 528 (10th Cir. 1977). The issue in Usery was whether "in a suit charging violations of the equal pay provisions of the Fair Labor Standards Act, (citation omitted), the Secretary of Labor [could] be compelled to divulge the identity of his informants." Id. at 529. The Tenth Circuit held that the Secretary was not required to disclose the identity of his informants because the privilege is qualified and the government's interest in protecting its sources outweighs the defendants' need for the information. The court determined that government's interest in confidentiality outweighs the defendants' need for identification of the informants. Id. at 531. In this case Schwab has not, and cannot, demonstrated any interest in protecting "informants" or "sources."

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without addresses and telephone numbers, of similarly situated employees to a plaintiff in an employment discrimination and retaliation lawsuit are confidential, and thus, not discoverable. In fact, Judge Campbell of the Arizona District Court recently ordered a defendant employer in an employment lawsuit to disclose the home addresses and phone numbers of its current employees. EEOC v. Go Daddy Software, Inc., CV-04-2062-PHXDGC (D. Ariz. November 5, 2005). Finally, Ms. Johnson is willing to agree to enter into a protective order whereby the names of other employees will be sealed from the public. In so doing, Ms. Johnson asks this Court to make the order reciprocal so that the names of current and former employees sought by Schwab in Interrogatory No. 16 are also sealed. D. Ms. Johnson's Requests Are Necessary and Relevant.

Schwab's contention that Plaintiff's requests are not sufficiently tailored to yield relevant, non-privileged information is incorrect because Schwab mischaracterizes Plaintiff's claim as "retaliated against because of her gender or race as a result of reporting supposed harassment from a co-worker."6 As previously stated, Ms. Johnson's claim is that she was terminated in retaliation for reporting unwelcome conduct from a coworker (the merit of which is irrelevant)7 and discriminated against because of her gender and national origin. As previously stated, the law in this Circuit is clear that Ms. Johnson is entitled to evidence of similarly situated employees. See Heyne, 69 F.3d at 1480. Plaintiff does not seek information covered by the attorney client privilege. E. Schwab's Limitations Are Inadequate. First

Schwab's suggested limitations on Plaintiff's discovery are inadequate.

Schwab suggests that scope of the deposition be narrowed to complaints defined as "actual lawsuits, redacted charges of discrimination filed with the EEOC and the ACRD, and redacted claims resulting in an internal investigation." This scope is too narrow. Ms. Johnson did not make a formal written claim or complaint of harassment to management.
6 7

Ms. Johnson's claims are not based on race, but on national origin. See Carmen, 237 F.3d at 1028; Gomez, 40 F.3d 982; Trent, 41 F.3d 524.

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She simply informed her manager, after being questioned about her relationship with the alleged harasser, of a potential HR (Human Resource) issue. After further probing, Schwab launched a full-blown investigation into Ms. Johnson's "claim" and fired her after determining that it was false. If anything, Ms. Johnson should ask this Court to broaden the scope of her request to include facts concerning "statements made by employees of potential HR issues." Similarly, the scope should not be limited to those claims that resulted in an internal investigation because part of Plaintiff's retaliation and discrimination claims is that she did not want to make a formal complaint, she wanted to drop the issue, but Schwab pushed the investigation and forced her participation even after she went to them crying and begging them not to move forward. Accordingly, Ms. Johnson is entitled to evidence of other employees who have brought similar concerns to management that did not result in an internal investigation. For example, if a Caucasian male employee

brought an "HR" issue to management that was not investigated, Ms. Johnson could introduce that evidence to show that she was treated differently because of her gender and/ or national origin. Schwab also suggests narrowing Plaintiff's requests to those complaints "concerning sexual harassment, and gender discrimination or Hispanic-origin

discrimination arising from false allegations of sexual harassment." Not only is Schwab's suggestion so narrow that it would likely eliminate any other claim made by any other employee, it does not accurately represent Ms. Johnson's claims. F. Plaintiff's Request Regarding Benefits Information Is Sufficient.

Schwab argues that responding to Plaintiff's requests regarding benefits will require the production of "busy" and "high ranking" individuals and will cause a financial burden. Schwab has cited no legal authority to support its position that a plaintiff in an employment discrimination lawsuit is not entitled to depose individuals with relevant information because they are "busy" or are "high ranking." In fact, Schwab has failed to present evidence of specific and substantial harm or prejudice.
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The only way that Ms. Johnson can complete a comprehensive calculation of her damages to obtain information regarding her benefits, including the value of those benefits. Because Schwab has refused to provide a complete and comprehensive response to Ms. Johnson's interrogatory regarding this information, Ms. Johnson is forced to proceed with a deposition and should not be required to take it telephonically. If Schwab wanted to save money, they could have simply responded to Ms. Johnson's discovery request. [Schwab's response to Ms. Johnson's Non-Uniform Interrogatory No. 9 attached as Exhibit C.] Ms. Johnson's right to conduct discovery on this relevant matter should not be compromised by Schwab's refusal to provide relevant information in an economical and efficient manner. III. CONCLUSION For the foregoing reasons, Ms. Johnson respectfully requests that the Court deny Schwab's motion to for a protective order and an award her costs and fees associated with the preparation of this Response. DATED this 2nd day of December, 2005. QUARLES & BRADY STREICH LANG LLP

By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Attorneys for Plaintiff Marcela Johnson I hereby certify that on December 2, 2005, I electronically transmitted the attached document To the Clerk's Office suing the CM/ECF System For filing and transmittal of Notice of Electronic Filing to the following CM/ECF registrants: Joseph T. Clees Christopher Mason Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2415 E. Camelback Road Suite 800 Phoenix, AZ 85016

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A copy of this document was provided to The Honorable John W. Sedwick

QBPHX\115637.00002\1974512.1

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