Kanzie v. AT&T Mobility Services, LLC ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH KANZIE, an individual, Case No. 3:19-cv-02170-AJB-BGS 12 Plaintiff, ORDER ON DISCOVERY DISPUTE REGARDING ROG 16 13 v. 14 AT&T MOBILITY SERICES, LLC, a [ECF 19] Delaware limited liability company; and 15 DOES 1 through 25, inclusive, 16 Defendants. 17 18 I. INTRODUCTION 19 The Court ordered the parties to submit a Joint Statement addressing their 20 disputes as to Plaintiff’s Interrogatory No. 16 (hereinafter “ROG 16”). The Parties 21 were to address the relevancy of the requested discovery and proportionality under 22 Federal Rule of Civil Procedure 26(b). On May 21, 2020 the parties filed their Joint 23 Statement for Discovery Dispute regarding Plaintiff’s ROG 16. (Doc. 19.) The Court 24 will address the parties’ positions as relevant to the Court’s analysis of the dispute. 25 II. LEGAL STANDARD 26 “An interrogatory may relate to any matter that may be inquired into under Rule 27 26(b).” Fed. R. Civ. P. 33(a)(2). “Each interrogatory must, to the extent it is not 28 objected to, be answered separately and fully in writing under oath.” Rule 33(b)(3). 1 “The grounds for objecting to an interrogatory must be stated with specificity.” Rule 2 33(b)(4). The party propounding the interrogatory may move to compel an answer if 3 the party fails to answer. Rule 37(a)(3)(B)(iii). 4 The requested discovery must be relevant to important issues in the case. 5 Relevant Evidence is defined in Federal Rule of Evidence 401: “Evidence is relevant 6 if (a) it has a tendency to make a fact more or less probable than it would be without 7 the evidence; and (b) the fact is of consequence in determining the action.” 8 Further, Rule 26(b)(1) provides that “[p]arties may obtain discovery regarding 9 any non-privileged matter that is relevant to any party’s claim or defense and 10 proportional to the needs of the case, considering the importance of the issues at stake 11 in the action, the amount in controversy, the parties’ relative access to relevant 12 information, the parties’ resources, the importance of the discovery in resolving the 13 issues, and whether the burden or expense of the proposed discovery outweighs its 14 likely benefit.” Fed. R. Civ. P. 26(b)(1). 15 “District courts have broad discretion in controlling discovery” and “in 16 determining relevancy.” Laub v. Horbaczewski, 331 F.R.D. 516, 521 (C.D. Cal. 17 2019) (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) and Surfvivor 18 Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005)). 19 Rule 26(b)(2) also requires the court, on motion or on its own, to limit the 20 frequency or extent of discovery otherwise allowed by the rules if it determines that 21 (1) “the discovery sought is unreasonably cumulative or duplicative, or can be 22 obtained from some other source that is more convenient, less burdensome, or less 23 expensive;” (2) “the party seeking discovery has had ample opportunity to obtain the 24 information by discovery in the action;” or (3) “the proposed discovery is outside the 25 scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). 26 The Advisory Committee emphasized that in adding the proportionality 27 language to Rule 26(b)(1) “the objective is to guard against redundant or 28 disproportionate discovery” and “to encourage judges to be more aggressive in 1 identifying and discouraging discovery overuse.” Fed. R. Civ. P. 26, Advisory 2 Committee’s note to 2015 amendment. 3 III. ANALYSIS: RELEVANCE AND PROPORTIONALITY 4 ROG 16 requests: 5 IDENTIFY, by name, job title, dates of employment in the store, and last known 6 contact information, every one of YOUR employees who worked in YOUR Pt. Loma 7 store, at any time, between January 1, 2017 and December 1, 2017. 8 (Doc. 19 at 21.) 9 A. The Parties’ Positions 10 The Plaintiff asserts several grounds as to why the identities of all employees 11 who worked with Plaintiff at the store in Pt. Loma are relevant. First, Plaintiff asserts 12 this discovery is needed to prove she was a qualified person who had a disability since 13 Defendant has denied she is disabled. (Id. at 3.) Co-worker testimony is relevant to 14 prove Plaintiff was disabled and her managers knew it. (Id.) She claims that 15 presumably her managers will testify that they did not know she was disabled. (Id.) 16 Secondly, she contends the discovery is needed because Defendant is asserting that 17 she could not perform the essential duties of her job with or without an 18 accommodation. Plaintiff argues that the other employees could describe the essential 19 duties of her job. (Id.) An employer’s description of the duties does not qualify as an 20 undisputed statement of fact. (Id. at 3-4.) Lastly, Plaintiff states that other employees 21 might corroborate that Plaintiff made multiple accommodation requests for time off 22 and that it would not have been an undue hardship for Defendant to excuse her from 23 work due to her disability. (Id. at 4.) 24 The Defendant responds that requesting a store roster is outside the scope of 25 discovery because it is irrelevant to Plaintiff’s claims. (Id. at 5.) The primary issue is 26 whether Defendant was required to excuse Plaintiff’s absences due to her alleged 27 28 1 disability. (Id.) Her peers had nothing to do with her termination, nor were they 2 involved in Defendant’s decision to deny her time off work. (Id.) As to whether a 3 peer perceived her as disabled, the Defendant argues it is not relevant because the 4 primary issue is whether Plaintiff’s store manager was required to excuse her absences 5 given Plaintiff’s failure to follow the company’s requirements for excusing time off. 6 (Id. at 6.) In regard to relevancy to prove she could do the essential duties of her job 7 with an accommodation, Defendant points out this case involves Plaintiff’s 8 attendance, which was the reason for her termination. (Id.) This is not a case 9 involving at work accommodation issues such as whether Plaintiff could lift, stand, or 10 walk, and whether these activities are essential job functions. (Id.) In fact, her peers 11 cannot provide any information regarding whether attendance is an essential job 12 function because they were all subject to the same guidelines. (Id. at 7) 13 B. Plaintiff’s Factual Allegations in the Complaint 14 For this analysis, the Court turns to the Factual Allegation section of Plaintiff’s 15 complaint, wherein she incorporated the following facts into all of her claims 16 regarding disability discrimination.2 Plaintiff describes her disability as a debilitating 17 back condition. (Compl. ¶ 15.3) She alleges she needed an accommodation at work. 18 (Id. ¶¶ 15-16.) For example, she needed to be allowed to occasionally sit. (Id. ¶ 15.) 19 Plaintiff adds that her disabilities caused her to arrive late at work or miss work 20 entirely when she sought medical treatment for her disabilities. (Id. ¶ 16.) She alleges 21 she needed flexibility in her work schedule, but Defendant refused to accommodate 22 her and instead fired her due to her disability related absences. (Id.) In paragraph 20, 23 she asserts that she was wrongfully terminated for her alleged failure to follow 24 guidelines. (Id.) 25 26 2 The Court will not summarize the entire complaint for this dispute, only the relevant paragraphs for this analysis. (Doc. 1 [Notice of Removal], Exb. A (State Court 27 Complaint (“Complaint”) for the entire complaint [ECF 1-3].) 28 1 In her individual claims, Plaintiff reiterates her theory of the case. In Claim 2 One, alleging disability discrimination and wrongful termination she refers to and 3 incorporates the preceding factual allegations. (Id. ¶ 19.) In her Second Claim for 4 Failure to Accommodate, she states that the reasonable accommodation she needed 5 was a finite time off work to treat, recuperate and heal from the symptoms associated 6 with her disability. (Id. ¶ 33.) In her Third Claim for Failure to Engage in the 7 Interactive Process, she alleges she gave notice to the employer that she had a 8 disability that required medical leaves of absence. (Id. ¶ 51.) In her Fourth Claim 9 alleging Retaliation, she claims that she requested intermittent medical leave of 10 absence for her disability, but she was retaliated against by Defendant for this request 11 which resulted in her termination. (Id. ¶ 60.) 12 Given Plaintiff’s factual allegations combined with her arguments in the Joint 13 Statement, the relevancy and proportionality considerations in this dispute regard the 14 following issues: 15 (1) Whether Plaintiff was disabled, and whether the Defendant knew so; 16 (2) Whether being present at work was an essential duty of her job; 17 (3) Whether she requested of Defendant a medical leave of absence. 18 19 The initial inquiry for the Court is whether Plaintiff has shown that a store roster of 20 coworkers “… has a tendency to make a fact more or less probable than it would be 21 without the evidence; and (b) the fact is of consequence in determining the action.” 22 FRE 401. For this analysis the Court addresses the elements of the claims that cover 23 this dispute. 24 C. Disability Discrimination and Wrongful Termination 25 Plaintiff claims the discovery is relevant to her FEHA claim of disability 26 discrimination and wrongful termination. “California has adopted the three-stage 27 burden-shifting test established by the United States Supreme Court for trying claims 28 of discrimination . . .based on a theory of disparate treatment.” Guz v. Bechtel 1 National Inc., 24 Cal.4th 317, 354 (2000). This “test reflects the principle that direct 2 evidence of intentional discrimination is rare, and that such claims must usually be 3 proved circumstantially.” Id. “[B]y successive steps of increasingly narrow focus, the 4 test allows discrimination to be inferred from facts that create a reasonable likelihood 5 of bias and are not satisfactorily explained.” Id. 6 Plaintiff must first establish a prima facie case of discrimination. Id. The 7 elements of a prima facie case of disability discrimination under FEHA are that a 8 Plaintiff: (1) was a member of a protected class; (2) is otherwise qualified to perform 9 his job; (3) was subjected to adverse employment action; and (4) some other 10 circumstances suggest discriminatory motive. Id. at 355. 11 “If [she] does so, the burden shifts to the employer to show a lawful reason for 12 its action.” Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718, 1730 13 (1994). The employer must show that the procedure by which the employee was 14 terminated was “validly and fairly devised and administered to serve a legitimate 15 business purpose.” Id. at 1733. 16 The burden then shifts to the employee to prove that “the proffered justification 17 is mere pretext.” Id. at 1730. The employee “must produce substantial responsive 18 evidence” on this last point. Id. at 1735. “Pretext may be inferred from the timing of 19 the discharge decision, the identity of the decision-maker, or by the discharged 20 employee’s job performance before termination.” Hanson v. Lucky Stores, Inc., 74 21 Cal. App. 4th 215, 224 (1999) (citing Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 22 467, 476, 479 (1992)). “Pretext may be demonstrated by showing ‘that the proffered 23 reason had no basis in fact, the proffered reason did not actually motivate the 24 discharge, or, the proffered reason was insufficient to motivate discharge.” Id. (citing 25 Gantt v. Wilson Sporting Goods Co. 143 F.3d 1042, 1049 (6th Cir.1998)). 26 This test is only applicable at the summary judgment stage. By the time the 27 case is submitted to the jury, the plaintiff has already established his or her prima facie 28 case, and the employer has already proffered a legitimate, nondiscriminatory reason 1 for the adverse employment decision. The shifting burdens drop from the case and the 2 jury is left to decide which evidence it finds more convincing. See Muzquiz v. City of 3 Emeryville, 79 Cal. App. 4th 1106, 1118 (2000). 4 The Court considers Plaintiff’s request for a store roster in the context of what 5 Plaintiff has to prove for her claim of wrongful termination. Plaintiff has to prove she 6 was disabled, and that the Defendant was so aware. As regards proving disability, the 7 Court finds that co-workers who had contact with her could testify about their 8 observations of her complaints and any physical pain from her back condition. 9 However, the Court finds ROG 16’s request for a store roster for all the co-workers is 10 overbroad in that it includes everyone, not only those that had frequent and direct 11 contact with her. Further, such lay witness testimony about observations as opposed to 12 Plaintiff’s medical records has limited probative value. Her peers are not trained 13 medical professionals, and any conversations with the Plaintiff about her condition 14 would be self-serving and only corroborative at best. The much more probative and 15 important evidence of her having a disability are her medical records which would 16 necessarily include her doctor(s)’ assessment of her condition and her need for time 17 off to heal and recuperate. The Plaintiff has not summarized her medical records, nor 18 explained why coworkers’ testimony is nonetheless important to resolve this issue. 19 One of the proportionality factors this Court is to consider under Rule 26(b)(1) is “the 20 importance of the discovery in resolving the issues.” Without any summary of other 21 discovery available such as medical records, the Plaintiff is in essence asking the 22 Court to evaluate the importance of her request in a vacuum. The Court declines to do 23 so. 24 Further, Rule 26(b)(2) also requires the court, on motion or on its own, to limit 25 the frequency or extent of discovery otherwise allowed by the rules if it determines 26 that “the discovery sought is unreasonably cumulative or duplicative, or can be 27 obtained from some other source that is more convenient, less burdensome, or less 28 expensive.” The Court, under this Rule, exercises its discretion to deny ROG 16 1 because discovery to prove disability can be obtained from another, more reliable 2 source, thereby making ROG 16’s request cumulative and of little probative value. 3 Notwithstanding, if after obtaining and reviewing her medical records Plaintiff still 4 believes she needs a limited roster to establish her disability, then she can timely 5 follow the Court’s chambers rules regarding discovery disputes. 6 As regards the relevancy of a store roster to prove Defendant was put on notice 7 of her disability and her requests for medical leave of absence, ROG 16 is overbroad. 8 Only co-workers who witnessed Plaintiff advising her supervisors of her need for 9 medical leave due to her back condition would be relevant. Further, Plaintiff proffers 10 that her two store managers during the eight-month time frame at issue will 11 presumably (emphasis added) testify that they did not know Plaintiff was disabled and 12 had no notice of her disability. It is clear from this contention by the Plaintiff that 13 ROG 16’s request for coworkers who witnessed Plaintiff tell her managers of her 14 disability is not ripe. It is based on the speculation that her managers presumably will 15 deny notice, not that they do in fact deny notice. Nor does Plaintiff provide what 16 discovery she possesses that shows her managers were not aware of her disability as 17 well as her requests for medical leaves of absence. Written correspondence including 18 emails, My Coach evaluations, Employee Attendance Reports which list illness 19 absences, medical correspondence received regarding Plaintiff, Health Care Provider 20 forms submitted by Plaintiff, text messages regarding her disability and need for 21 leave, and the like are the type of information that the Plaintiff would need to present 22 in order for the Court to perform its obligatory Rule 26(b)(1) analysis to determine the 23 importance of the discovery in resolving these issues. The Court also has its hands tied 24 in performing its Rule 26(b)(2) sua sponte duty to only allow discovery which is 25 proportional to the needs of the case. At this point in the litigation the Plaintiff has 26 failed to provide the full picture as to why coworker testimony is still important to 27 prove that she gave notice of her disability to the Defendant. Therefore, as ordered 28 1 above, and for these reasons, the Court denies Plaintiff’s ROG 16 for this relevancy 2 ground. It is without prejudice as indicated above. 3 D. Failure to Reasonably Accommodate 4 Plaintiff claims ROG 16 will provide relevant discovery to show that she 5 requested medical leaves of absence, that the Defendant knew of her requests, and that 6 she could perform the essential duties of her job with this accommodation. 7 Under FEHA, “an employer who knows of the disability of an employee has an 8 affirmative duty to make known to the employee other suitable job opportunities with 9 the employer and to determine whether the employee is interested in, and qualified 10 for, those positions, if the employer can do so without undue hardship or if the 11 employer offers similar assistance or benefit to other disabled or nondisabled 12 employees or has a policy of offering such assistance or benefit to any other 13 employees.” Prilliman v. United Air Lines, Inc., 53 Cal.App.4th 935, 950–951 (1997). 14 “Reasonable accommodation includes, (1) ‘Making existing facilities used by 15 employees readily accessible to, and usable by, individuals with disabilities. [¶] (2) 16 Job restructuring, part-time or modified work schedules, reassignment to a vacant 17 position, acquisition or modification of equipment or devices, adjustment or 18 modification . . . of examinations, training materials or policies, the provision of 19 qualified readers or interpreters, and other similar accommodations for individuals 20 with disabilities.” Hanson, 74 Cal. App.4th at 225 (quoting § 12926, subd. (m); Cal. 21 Code Regs., tit. 2, § 7293.9, subd. (a). “However, FEHA’s list of accommodation 22 measures, by its terms, is incomplete, and so we may look to its federal cognates for 23 guidance.” Id. at 225-26 (citing Prilliman, 53 Cal.App.4th 948). In Hanson v. Lucky 24 Stores, 74 Cal. App. 4th at 225–26 the court held that a finite leave of absence can be 25 a reasonable accommodation under FEHA, provided it is likely that at the end of the 26 leave, the employee would be able to perform his or her duties. 27 As indicated in her complaint, Plaintiff claims Defendant did not reasonably 28 accommodate her by not granting her medical leave of absences. She contends the 1 identity of all her coworkers could be relevant to test the Defendant’s description of 2 the essential duties of her job, as well as corroborate her multiple accommodation 3 requests, and that it would not have been an undue hardship on the Defendant to 4 excuse her from work. 5 The Court has concerns about whether the description of the essential duties of 6 her job is a disputed issue given the factual allegations in her complaint and arguments 7 in the Joint Motion. In both, the only identified essential duty of her job in dispute is 8 the requirement that Plaintiff be present at work. This is not a case involving at work 9 accommodation issues such as whether Plaintiff could lift, stand, or walk, and whether 10 these activities are essential job functions. In fact, Plaintiff’s main liability contention 11 as regards her discrimination claims centers around whether Defendant’s reason for 12 terminating Plaintiff was due to her non compliance with its attendance policy, as 13 Defendant claims, or whether this reason was pretext, as Plaintiff claims. She argues 14 her request for this accommodation, medical leave, and her disability, were the true 15 motives behind her termination. 16 Further, it is unclear how her peers could provide any relevant information 17 regarding whether attendance is an essential job function. All of her peers were 18 employed under the same attendance guidelines. The Plaintiff has not explained how 19 these lay witnesses could provide relevant information that being at work was not an 20 essential function of Plaintiff’s job. See Samper v. Providence St. Vincent Med. Ctr., 21 675 F.3d 1233, 1237–38 (9th Cir. 2012) (It is a “rather common-sense idea ... that if 22 one is not able to be at work, one cannot be a qualified individual.”) (quoting 23 Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999)). 24 As regards her claim that she needs the store roster to corroborate that Plaintiff 25 made multiple requests for medical leave, the Court adopts its holding above as 26 concerned notice of her disability. It is also denied without prejudice under the same 27 conditions above. 28 l Finally, the Plaintiff contends that other employees might corroborate that 2 || Plaintiff made multiple accommodation requests for time off and that it would not 3 have been an undue hardship for Defendant to excuse her from work due to her 4 || disability. Plaintiff adds no additional facts as to how coworkers are able to opine that 5 || allowing Plaintiff to take time off would not have been undue hardship for Defendant. 6 || Plaintiff appears to base its request on Defendant’s 15" Affirmative Defense, Undue 7 || Hardship. The Defendant does not address this issue, nor has either party identified 8 || what if any discovery has been done on this defense. The Court questions whether this 9 || defense will even be raised given Defendant’s contention that Plaintiff was terminated 10 for not getting her medical absences approved under Defendant’s attendance policy. 11 || The Court denies ROG 16 without prejudice. The parties are to follow the discovery 12 || dispute process before bringing this dispute again.* 13 Given the Court’s order herein, the Court finds the dispute over privacy rights 14 || to be moot at this time. 15 |}IV. CONCLUSION 16 AT&T is not required to response to ROG 16. 17 IT IS SO ORDERED. 18 Dated: June 16, 2020 7 2 p / / 19 on. Bernard G. Skomal 20 United States Magistrate Judge 21 22 23 24 25 26 For future contested discovery disputes, each party should address the elements of 27 || claims/affirmative defenses that are in dispute, detail the discovery that has been 28 provided on these issues, and explain why or why not the requested discovery complies with Rule 26(b)(1)-(2) and FRE 401. -11- 3:19-cv-02170-AJB-BGS