Tarquinii v. Harker ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAWAN N. TARQUINII, :
:
Plaintiff, : Civil Action No.: 21-1567
:
v. : Re Document No.: 31
:
CARLOS DEL TORO, in his official capacity :
as U.S. Secretary of the Navy :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO COMPEL
I. INTRODUCTION
Plaintiff, proceeding pro se, alleges that Defendant 1 violated Title VII of the Civil Rights
Act of 1964 and the Rehabilitation Act of 1973 by terminating her employment at Marine Corps
Community Services in Iwakuni, Japan in 2015. See Compl. at 1–2, ECF No. 1. Specifically,
Plaintiff alleges that her termination amounts to unlawful discrimination based on her race, sex,
religion, and disability status and retaliation for her protected equal employment opportunity
(“EEO”) activity. See id. Discovery in this matter closed on March 31, 2022, after which, at the
Court’s direction, the parties continued to confer to attempt to resolve outstanding issues. See
Sched. Order, ECF No. 16; Min. Order (Apr. 7, 2022). With the parties at an impasse, on
September 19, 2022 the Court ordered Plaintiff to file a motion to compel on all remaining
discovery disputes. See Min. Order (Sept. 19, 2022). That motion is now ripe for consideration.
1
Carlos Del Toro was automatically substituted as Defendant upon assumption of the
position of U.S. Secretary of the Navy pursuant to Fed. R. Civ. P. 25(d).
For the reasons set forth below, Plaintiff’s Motion to Compel, ECF No. 31, is granted in part and
denied in part.
II. BACKGROUND
Plaintiff worked in human resources capacities, all Non-Appropriated Fund (“NAF”)
positions, for Marine Corps Community Services (“MCCS”) in Iwakuni, Japan, from July 2013
to November 2015. See Compl. at 3; Def.’s Opp’n to Pl.’s Mot. Compel (“Def.’s Opp’n”) at 1,
ECF No. 32. In September 2014 she worked to facilitate a job fair for MCCS. Compl. ¶ 30(p);
Answer ¶ 30(p), ECF No. 14. Plaintiff’s spouse and brother interviewed for jobs and ultimately
were hired. See Compl. ¶ 30; Answer ¶ 30. In November 2015, Plaintiff was terminated for
“engaging in a pattern of misconduct that violated the rules of [sic] prohibiting nepotism and
actual or apparent conflicts of interest” through actions “in connection with the employment of
[her] husband and brother by MCCS.” Compl. ¶ 31(a).
Plaintiff filed this suit on February 26, 2021 alleging violations of Title VII of the 1964
Civil Rights Act, 42 U.S.C. § 2000e, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. §
701, et seq. See Compl. at 1. She alleges that she was subjected to discrimination based on her
race (African American), sex (female), disability (hypertension), and religion (Catholic),
predominantly by her first-level supervisor, Robert Johnston, and her second-level supervisor,
John Iwaniec. See id. at 10. She also claims that she engaged in several protected “EEO
activities,” such as reporting these instances of discrimination and objecting to similar treatment
of others. See id. at 3–10. Accordingly, Plaintiff claims that her termination was not motivated
by the alleged nepotism in facilitating the hiring of her husband and brother, but rather reflects
discrimination based on her protected characteristics and retaliation for protected EEO activities.
See id. at 10–11.
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III. LEGAL STANDARDS
A. Discovery Scope
Interrogatories, requests for production, and requests for admissions are all discovery
devices governed by Rule 26(b)’s scope requirements and must be filed within the discovery
window set by the Court. See Fed. R. Civ. P. 26(b)(1), 33(a)(2), 34(a), 36(a)(1); Dag Enters.,
Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 104–05 (D.D.C. 2005). ‘“The Federal Rules of Civil
Procedure encourage the exchange of information through broad discovery.’” Ramirez v. U.S.
Immigr. & Customs Enf't, No. 18-cv-508, 2019 WL 11623990, at *1 (D.D.C. June 4, 2019)
(quoting In re England, 375 F.3d 1169, 1177 (D.C. Cir. 2004)). Specifically, Rule 26(b) permits
discovery of “any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
“Relevance is ‘construed broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on any party's claim or defense.’”
Breiterman v. U.S. Capitol Police, 324 F.R.D. 24, 30 (D.D.C. 2018) (quoting United States ex
rel. Shamesh v. CA, Inc., 314 F.R.D. 1, 8 (D.D.C. 2016)). Where a party seeks to compel a
response to a discovery request, “[t]he party that brings the motion to compel ‘bears the initial
burden of explaining how the requested information is relevant.’” Felder v. Wash. Metro. Area
Transit Auth., 153 F. Supp. 3d 221, 224 (D.D.C. 2015) (quoting Jewish War Veterans of the
U.S., Inc. v. Gates, 506 F. Supp. 2d 30, 42 (D.D.C. 2007)). “Once that showing has been made,
‘the burden shifts to the non-moving party to explain why discovery should not be permitted.’”
English v. Wash. Metro. Area Transit Auth., 323 F.R.D. 1, 8 (D.D.C. 2017) (internal quotation
marks omitted) (quoting Felder, 153 F. Supp. 3d at 224).
Proportionality is determined by weighing six factors:
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(1) the importance of the issues at stake in this action; (2) the amount in controversy; (3)
the parties' relative access to relevant information; (4) the parties' resources; (5) the
importance of the discovery in resolving the issues; and (6) whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Oxbow Carbon & Mins. LLC v. Union Pac. R.R. Co., 322 F.R.D. 1, 6 (D.D.C. 2017); Fed. R.
Civ. P. 26(b)(1). “No single factor is designed to outweigh the other factors in determining
whether the discovery sought is proportional.” Oxbow, 322 F.R.D. at 6 (citation omitted). To
satisfy the burden of showing that a discovery request is not proportional, “the refusing party
must make a specific, detailed showing.” Lamaute v. Power, 339 F.R.D. 29, 35 (D.D.C. 2021).
B. Discovery Devices
1. Interrogatories
“Each interrogatory must, to the extent it is not objected to, be answered separately and
fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). A party responds “fully” to an
interrogatory when it “provide[s] true, explicit, responsive, complete, and candid answers.”
Equal Rts. Ctr. v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007) (formatting omitted)
(citation omitted). “The party moving to compel discovery has the burden of proving that the
opposing party's answers were incomplete.” Id. (citation omitted). The non-movant may
respond that “they are unable to provide certain information . . . while identifying the
information they possess,” as “the Court cannot compel [it] to produce materials that it does not
possess or information it does not have.” Steele v. United States, No. 14-cv-1523, 2022 WL
2817835, at *5 (D.D.C. July 19, 2022) (citation omitted).
2. Requests for Production
“For each item or category” requested, a party “must either state that inspection and
related activities will be permitted as requested or . . . that it will produce copies of documents or
of electronically stored information instead of permitting inspection,” or else object. Fed. R.
4
Civ. P. 34(b)(2)(B)–(C). The responding party must conduct a “reasonable” search for the
requested documents, but may stop when the extent of the search constitutes an “undue burden”
that “would be disproportionate to the needs of [the] case.” Prasad v. George Washington Univ.,
323 F.R.D. 88, 90 (D.D.C. 2017). “To the extent that documents do not exist, they are not
discoverable.” Davis v. Yellen, No. 08-cv-447, 2021 WL 2566763, at *20 (D.D.C. June 22,
2021). However, the movant may present evidence “that the documents that have been produced
permit a reasonable deduction that other documents may exist or did exist and have been
destroyed.” Hubbard v. Potter, 247 F.R.D. 27, 29 (D.D.C. 2008).
3. Requests for Admission
A refusal to admit “must specifically deny [the requested admission] or state in detail
why the answering party cannot truthfully admit or deny it.” Fed. R. Civ. P. 36(a)(4). “The
answering party may assert lack of knowledge or information as a reason for failing to admit or
deny only if the party states that it has made reasonable inquiry and that the information it knows
or can readily obtain is insufficient to enable it to admit or deny.” Id. While a party may not
“object solely on the ground that the request presents a genuine issue for trial,” id. at (a)(5), an
“outright denial of each of the [requests for admission] at issue . . . fulfill[s] its obligations.”
United States v. All Assets Held at Bank Julius Baer, No. 04-cv-798, 2019 WL 1167743, at *5
(D.D.C. Mar. 13, 2019) (internal citations omitted).
IV. ANALYSIS
Plaintiff claims that Defendant’s responses to numerous interrogatories, requests for
production, and requests for admission are deficient. The Court addresses each claim in turn.
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A. Interrogatories
Plaintiff’s motion implies an objection to Defendant’s responses to interrogatory Nos. 1
and 2, see Pl.’s Mot. Compel (“Pl.’s Mot.”) at 14, but Plaintiff’s own notice of deficiency
indicated that Defendant’s response to No. 2 “is sufficient,” Feb. 24, 2022 Notice of Deficiency
at 2, ECF No. 31-4, so the Court focuses on the objection to No. 1. In response to interrogatory
No. 1, which asked who Plaintiff’s supervisor “consulted prior to issuing the notice of proposed
removal,” Defendant responded that he “consulted with someone at MCCS Okinawa (does not
recall the name) to obtain a template for the notice to use.” See Def.’s Disc. Resp. at 2, ECF No.
31-3. Plaintiff claims this response is deficient because Defendant “failed to identify who
‘someone’ was.” Feb. 24, 2022 Notice of Deficiency at 2. However, the Court “cannot compel
him to remember something which he does not recollect,” United States v. All Assets Held at
Bank Julius Baer & Co., Ltd., 309 F.R.D. 1, 13 (D.D.C. 2015), aff'd sub nom. United States v. All
Assets Held at Bank Julius, 170 F. Supp. 3d 161 (D.D.C. 2016) (citation omitted), and Plaintiff
points to no record evidence calling into question the sincerity of his assertion, so the Court
denies Plaintiff’s motion to compel as to interrogatory No. 1.
B. Requests for Production
1. Nos. 1 and 4
Plaintiff alleges that Defendant’s responses to request Nos. 1 and 4 are deficient because
they do not contain any documents reflecting considerations of the Douglas factors in the
decision to terminate her employment. See Pl.’s Mot at 9. The “Douglas factors” are 12 non-
exhaustive factors that the Merit Systems Protection Board (“MSPB”) has determined are
“relevant to [the] appropriateness” of a government employer’s decision to discipline an
employee. Fogg v. Ashcroft, 254 F.3d 103, 112 (D.C. Cir. 2001). However, Defendant responds
6
that “[t]he fact that Defendant has no records containing any Douglas factors analysis for this
case is . . . not surprising,” as consideration of those factors “is not required for decisions to
terminate [NAF] employees such as Plaintiff.” Def.’s Opp’n at 6 (citing Harper v. Army, No.
PH-3443-13-0342-I-1, 2013 WL 6870178 (M.S.P.B. July 29, 2013)). Plaintiff does not point to
any evidence that Defendant did in fact consider the Douglas factors, so the Court denies
Plaintiff’s motion to compel as to requests for production Nos. 1 and 4.
2. No. 5
In request No. 5, Plaintiff originally requested “[c]opies of any and all emails that were
left in Plaintiff’s work computer at the time of her removal on November 24, 2015,” see Pl.’s
Disc. Req. at 2, ECF No. 31-2, but has since refined her request to seek only emails between July
2013 and December 2015 in which the names of 60 individuals appear in either the “to,” “from,”
“cc,” or “bcc” lines. 2 See Ex. G to Def.’s Opp’n, ECF No. 32-7. As an initial matter, Defendant
points out, and Plaintiff does not contest, that 30 of the 60 names requested by Plaintiff “are not
. . . included in any allegations on the face of the Complaint,” see Def.’s Opp’n at 9–10 & n.4,
and Plaintiff’s filings do not explain their relevance to this case. Accordingly, Plaintiff has not
met her burden to prove that emails from those 30 individuals are relevant and her motion to
compel as to request No. 5 is denied with respect to these 30 individuals. 3
As for the 30 individuals that are referred to in the Complaint, Plaintiff still has not
shown that the records sought are relevant and proportional to the needs of the case. To
demonstrate disproportionality, Defendant ran a “quick search” for just five out of the 30 names,
2
The time period is narrower for certain of the listed individuals. See Ex. G to Def.’s
Opp’n, ECF No. 32-7.
3
These 30 individuals are identified in Defendant’s opposition. See Def.’s Opp’n at 10
n.4.
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which returned almost 3,000 emails. See Def.’s Opp’n at 11. Plaintiff responds that she did
enough by complying with the Court’s previous instruction during an August 4, 2022 conference
to refine the request to “include names and [a] time frame.” Pl.’s Reply at 5, ECF No. 33. But
the Court also explained during that conference that, “obviously, you [Plaintiff] don’t need to get
your hands on every email that you left behind,” as “the majority of them are not relevant to this
case.” Hr’g Tr. at 16, ECF No. 35. The Court concluded by encouraging Plaintiff to work with
Defendant to narrow the request to “see whether we can get some sort of agreement on this.” Id.Plaintiff has not done enough to assuage the Court’s concern, as surely the majority of emails
responsive to an unbounded request for all emails on which any of 30 email addresses appear
over a multi-year period will not have anything to do with Plaintiff’s case. However, though it is
loath to draw this process out further, the Court acknowledges that certain of these emails likely
are relevant and proportional to the needs of Plaintiff’s case, and accordingly instructs Defendant
to search for and produce responsive records concerning these 30 individuals that hit on any
variation 4 of the following search terms: discriminate, harass, misconduct, uncomfortable,
mistreat, retaliate, EEO, hostile, discipline, performance, terminate, caution, violate. See Def.’s
Opp’n at 11 (suggesting that Plaintiff adopt a set of “search terms that would narrow
communications only to relevant topics”); see also Fed. R. Civ. P. 26(e)(1)(B) (“A party who
has. . . responded to a[] . . . request for production . . . must supplement or correct its disclosure
or response . . . as ordered by the court.”).
4
That is, search terms should be structured to include all variations of the root word,
either through use of a wildcard Boolean search character (e.g., retaliat*) or by separately
searching for different variations (e.g., “retaliate,” “retaliation,” “retaliatory,” etc.).
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3. Nos. 8 and 9
Request No. 8 seeks emails exchanged between Plaintiff’s supervisors regarding Plaintiff
between January 1, 2015 and November 24, 2015. See Pl.’s Disc. Req. at 2. Request No. 9
seeks emails exchanged between the same supervisors regarding Plaintiff’s “employment
reference, if any” between November 24, 2015 and December 31, 2017. Id. Defendant states
that it “conducted a reasonable search for responsive records and could not identify any emails
responsive to this request.” Def.’s Opp’n at 7–8; Def.’s Disc. Resp. at 10–11. Plaintiff claims
this is “ludicrous,” Pl.’s Reply at 4, but points to no supporting evidence, so the Court has no
basis on which to question Defendant’s assertion and accordingly denies Plaintiff’s motion as to
request Nos. 8 and 9. See Hubbard, 247 F.R.D. at 29 (explaining that “[s]peculation that there is
more will not suffice” and that courts “insist[] that the documents that have been produced
permit a reasonable deduction that other documents may exist”).
4. Nos. 10, 11, and 15
Request Nos. 10 and 11 seek “any and all records showing actions taken by Robert
Johnston, if any, in response to Plaintiff’s allegations” of sexual harassment and racial
harassment, respectively. Pl.’s Disc. Req. at 2. Request No. 15 seeks records showing “actions
taken in 2015, if any, regarding Plaintiff’s sexual and/or racial complaints Plaintiff raised against
John Iwaniec.” Id. at 3. Defendant states that it conducted a “reasonable search” for these
documents and “has not identified any documents responsive to this [r]equest.” Def.’s Opp’n at
13; Def.’s Disc. Resp. at 11, 13. Plaintiff points to no evidence to suggest otherwise, so the
Court again has no basis on which to question Defendant’s assertion. See Prasad, 323 F.R.D. at
90 (“It is not the court’s role to dictate how a party should search for relevant information absent
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a showing that the party has abdicated its responsibility.” (citation omitted)). Plaintiff’s motion
is denied as to request Nos. 10, 11 and 15.
5. No. 12
While the parties group request No. 12 with request Nos. 10, 11, and 15 in their briefs,
No. 12 is meaningfully different. It more broadly seeks “any and all records showing actions
taken, if any, in response to discrimination complaints raised by Plaintiff at any time during her
employment with Defendant.” Pl.’s Disc. Req. at 2. Defendant seeks to parse the meaning of
“raised” in this sentence, suggesting that Plaintiff only sought records related to incidents in
which she herself was the complainant. See Def.’s Opp’n at 14 (claiming that only after “several
meet and confers” did Plaintiff “explain[] that she is also requesting records related to corrective
actions taken in response to any discrimination complaint that Plaintiff submitted during the
course of her employment, including complaints made by other employees which she
investigated in the course of her position” (emphasis added)). Accordingly, Defendant argues
that the “Court should not authorize a ‘fishing expedition[]’ into the disciplinary history of non-
parties to the litigation absent some demonstration that such parties are actually relevant.” Def.’s
Opp’n at 14 (citing Breiterman, 324 F.R.D. at 31).
The Court views the original request as seeking records showing actions taken in
response to discrimination complaints Plaintiff raised, even if someone else was the target of the
discriminatory conduct. Request Nos. 10 and 11 seek records of actions taken in response “to
Plaintiff’s allegations” of harassment. Pl.’s Disc. Req. at 2. Similarly, request No. 15 seeks
records showing actions taken “regarding Plaintiff’s sexual and/or racial complaints Plaintiff
raised against John Iwaniec.” Id. at 3. By contrast, request No. 12 uses different, broader
language seeking records of actions taken in response to “discrimination complaints raised by
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Plaintiff.” Id. at 2. The Court declines to treat the difference in language as accidental. The
Court also finds that Plaintiff’s supervisors’ responses to discrimination complaints she raised
are relevant based on their tendency to show or lead to other evidence that shows whether the
proffered non-discriminatory explanation for her termination was pretextual. See Wheeler v.
Georgetown Univ. Hosp., 812 F.3d 1109, 1115 (D.C. Cir. 2016) (explaining that evidence that an
employer’s proffered non-discriminatory explanation is pretextual may include “the employer’s
better treatment of similarly situated employees outside the plaintiff’s protected group” and “the
employer’s pattern of poor treatment of other employees in the same protected group as the
plaintiff”) (citation omitted); Fonville v. D.C., 230 F.R.D. 38, 44 (D.D.C. 2005) (explaining that
“[i]nformation about how [defendant] demoted others and the procedures followed in other cases
is—at the very least—'relevant to the subject matter’ and ‘reasonably calculated to lead to the
discovery of admissible evidence’” (citing Fed. R. Civ. P. 26(b)(1)); Waters v. U.S. Capitol
Police Bd., 216 F.R.D. 153, 158 (D.D.C. 2003) (“Evidence that the defendant treated persons
similarly situated differently may be relevant evidence of racial discrimination. Information that
may permit such a comparison is ‘reasonably calculated to lead to the discovery’ of relevant
evidence. Fed. R. Civ. P. 26(b)(1) permits the discovery of both.”). And the presumably limited
universe of records showing actions taken in response to discrimination complaints raised by
Plaintiff sufficiently allays any proportionality concerns. Accordingly, Plaintiff’s motion to
compel as to request No. 12 is granted and Defendant is directed to produce responsive records,
to the extent they exist. 5
5
The Court notes that Defendant’s response to Plaintiff’s discovery request indicates that
“Defendant has not identified any documents responsive to this [r]equest.” Def.’s Disc. Resp. at
12. However, the response does not allege that Defendant undertook a reasonable search, and
Defendant’s opposition suggests that its response likely was based on the faulty premise that
Plaintiff’s request only encompassed complaints in which Plaintiff herself was the target of the
11
6. No. 13
Request No. 13 seeks a “copy of the Family Care Investigation report Plaintiff submitted
in connection with the hostile work environment allegations raised against Tim Cook, Senior
Manager, Child Development Center in 2015.” Pl.’s Disc. Req. at 3. Plaintiff states that the
report, prepared in September 2015, determined that that the allegations were substantiated. See
Compl. ¶ 20. However, Agency counsel disagreed with her and “pressured” her to revise the
report. Id. Plaintiff alleges that thereafter she received a negative performance evaluation based
on her work on the report. Id. ¶¶ 20–21; see also Hr’g Tr. at 28–29, ECF No. 35. Defendant
argues that “[p]laintiff’s allegations regarding the Family Care investigation and the allegedly
retaliatory performance appraisal are time-barred, not exhausted, and therefore not properly
before this Court.” Def.’s Opp’n at 16. However, during a hearing on August 4, 2022, the Court
indicated that it saw this report as relevant because part of the alleged motivation for termination
was poor performance, so “to the extent that [the report] covers something that she was
disciplined for . . . it would fall within that umbrella of poor performance.” Hr’g Tr. at 30–31,
ECF No. 25. Despite the Court’s instruction to Defendant to “look at that in much closer detail,”
id. at 31, Defendant’s opposition does not address the report’s relevance as evidence of
Plaintiff’s performance quality. Accordingly, the Court grants Plaintiff’s motion to compel as to
request No. 13 and orders a copy of the report produced.
7. No. 14
Similar to request Nos. 1, 4, 10, 11, and 15, Defendant states that it “conducted a
reasonable search” for records responsive to request No. 14 but did not identify any responsive
alleged discriminatory conduct. See Def.’s Opp’n at 13–14. Defendant must now conduct a
reasonable search for records responsive to Plaintiff’s request as construed by the Court above.
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records. Def.’s Opp’n at 7; Def.’s Disc. Resp. at 13. Because Plaintiff has not pointed to any
evidence to refute Defendant’s assertion, the Court denies Plaintiff’s motion as to request No. 14.
8. Nos. 16–24, 26, and 27
Request Nos. 16 and 17 seek “all termination notices issued by John Iwaniec” and “all
notices of proposed termination issued by Robert Johnston” in the five years prior to November
24, 2015. See Pl.’s Disc. Req. at 3. Request Nos. 26 and 27 seek “all Letters of Caution and
Performance Improvement Plans” issued by those individuals in that time period. Id. at 4. The
parties appear to have agreed to limit these requests to records pertaining to eleven individuals
(the “list of eleven”). See Pl.’s Mot. at 6, 12; Pl.’s Reply at 7. In request Nos. 18–24, Plaintiff
also seeks “any and all disciplinary records” for seven of these eleven individuals (the “list of
seven”). Pl.’s Disc. Req. 3–4. Plaintiff argues that the eleven individuals are “similarly situated”
comparators because they all “reported up the chain of command” to the same people,
“performed very similar job tasks and responsibilities in scope in the agency,” “were subject to
the same employment rules, policies and procedures as Plaintiff,” “were all under the same job
performance evaluation system as Plaintiff,” and “had the same requirements in general for
required level of experience to obtain the job.” Pl.’s Reply at 7–8.
Defendant argues that more is required to establish that an employee is a relevant
comparator. See Def.’s Opp’n at 19 (“Plaintiff has not demonstrated that any of the conduct of
her alleged comparators was similar to her own or that they shared supervisors or job duties and
responsibilities.”). But ‘“[t]he question of whether employees are similarly situated in order to
show pretext ordinarily presents a question of fact for the jury.’” Washington v. Wash. Metro.
Area Transit Auth., 330 F. Supp. 3d 232, 243 (D.D.C. 2018), aff'd, 788 F. App'x 1 (D.C. Cir.
2019) (citing Wheeler, 812 F.3d at 1115) (internal quotation omitted); see also Waters, 216
13
F.R.D. at 158 (“While it is certainly true that a Title VII prima facie case must . . . be based on a
demanding standard of near identity between the plaintiff's situation and the situation of [an
asserted comparator], it does not follow that a Title VII plaintiff must meet this standard as a
condition of securing discovery.”). Plaintiff ultimately may not succeed in proving that any of
these individuals is similarly situated, but for purposes of discovery, the Court finds that Plaintiff
has alleged sufficient information concerning nine out of the eleven individuals to clear the low
bar of relevance. See Fonville, 230 F.R.D. at 44 (explaining that “[i]nformation about how
[defendant] demoted others and the procedures followed in other cases is—at the very least—
'relevant to the subject matter’ and ‘reasonably calculated to lead to the discovery of admissible
evidence’”) (citing Fed. R. Civ. P. 26(b)(1)). This list includes five employees who appear on
the list of seven—Matthew Niedszeiecki, Jason Gardiner, Gary Holsopple, Andrew Chung, and
Richard Courtenmanche—as well as two employees who appear only on the list of eleven—
Marty Carter and Vincent Endresen—all of whom allegedly failed to properly administer or
supervise certain programs in ways that cost MCCS money. See Compl. ¶¶ 39–41, 43–46. It
also includes Tony Taylor, who appears on the list of seven and allegedly had an affair with his
direct report that his supervisors knew about, see id. ¶ 47, and Sue Campbell, also on the list of
seven, who allegedly faced discipline for failure to “take reported sexual harassment seriously,”
id. ¶ 48. Accordingly, Plaintiff’s motion to compel is granted as to records responsive to
requests No. 18, 19, 20, 21, 22, 23, and 24, and records concerning these nine individuals
responsive to requests No. 16, 17, 26, and 27, subject to the terms of the protective order. See
generally Protective Order, ECF No. 21. 6
6
Defendant’s response to Plaintiff’s discovery request invokes the Privacy Act, 5 U.S.C.
§ 552a, among its grounds for objecting to most of the above-listed requests. See Def.’s Disc.
Resp. at 14–23. While Defendant does not raise this argument in its opposition, the Court notes
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The Court denies Plaintiff’s motion as to the two additional employees who round out the
list of eleven—David Atkins and Jamie Wallace. See Pl.’s Mot. at 6, 12. Plaintiff alleges only
that David Atkins “was terminated due to not being suitable,” Compl. ¶ 42, and makes no
allegations about Jamie Wallace’s performance whatsoever, see Pl.’s Reply at 8 (stating only that
Jamie Wallace was a “prior Chief of Human Resources which is the same job title as the
Plaintiff”). This is not enough to show that records pertaining to these employees are relevant to
Plaintiff’s case. See Breiterman, 324 F.R.D. at 31 (finding certain categories of comparator
discovery sought “too far removed from [plaintiff’s] alleged misconduct to ‘yield information
that would permit the plaintiff to argue the dissimilar treatment of the two situations is evidence
of discrimination.’” (citation omitted)). Defendant is not required to produce documents
pertaining to these two individuals responsive to request Nos. 16, 17, 26, or 27.
9. No. 25
Request No. 25 seeks “records gathered and reviewed by Col Robert Boucher, MCAS
Iwakuni, to support the decision to uphold Iwaniec’s decision to termination [sic] Plaintiff’s
employment.” Pl.’s Disc. Req. at 4. While Plaintiff claims that Defendant “fail[ed] to produce
any” records responsive to this request, Pl.’s Mot. at 13, Defendant’s response indicates that it
produced a set of responsive documents, see Def.’s Disc. Resp. at 22. Plaintiff’s reply attempts
to recast her deficiency argument along the lines of request Nos. 1 and 4 above, arguing that
Defendant’s response was deficient for lack of records reflecting consideration of the Douglas
that the Privacy Act “does not create a qualified discovery privilege” that “replaces the usual
discovery standards of the FRCP . . . with a different and higher standard.” Laxalt v. McClatchy,
809 F.2d 885, 888 (D.C. Cir. 1987); see 5 U.S.C. § 552a(b)(11) (permitting disclosure “pursuant
to the order of a court of competent jurisdiction’). Where the Privacy Act would apply to records
responsive to appropriate discovery requests, “[t]raditional devices such as protective orders . . .
offer reliable means with which to limit liberal discovery principles.” Pleasants v. Allbaugh, 208
F.R.D. 7, 12 (D.D.C. 2002) (citing Laxalt, 809 F.2d at 889).
15
factors. See Pl.’s Reply at 8. But, just as with request Nos. 1 and 4, Plaintiff does not point to
any evidence that Defendant in fact considered the Douglas factors, so the Court denies
Plaintiff’s motion to compel as to requests No. 25.
C. Requests for Admission
1. Nos. 1–7, 11–17, 20–24, 26–29, and 32–34
Defendant denied each of the above-listed requests for admission. See Def.’s Disc. Resp.
at 24–36. Plaintiff argues that these denials are insufficient because “Defendant failed to explain
[its] denial responses.” Pl.’s Mot. at 14. However, a party’s “outright denial” in response to a
request for admission “fulfill[s] its obligations.” All Assets Held at Bank Julius Baer & Co.,
2019 WL 1167743 at *5 (internal citations omitted); see also Foretich v. Chung, 151 F.R.D. 3, 5
(D.D.C. 1993) (explaining, in reference to Fed. R. Civ. P. 36, that “the purpose of allowing
motions to challenge the sufficiency of responses is to clarify how an ambiguous response will
be treated so that each party is aware, as the litigation progresses, whether or not a particular
issue has been admitted or is still in dispute” but that “there is simply no provision of the Federal
Rules allowing a party to litigate a denied request for an admission”). Accordingly, Plaintiff’s
motion to compel as to the above-listed requests for admission is denied. 7
2. No. 25
Request No. 25 seeks Defendant’s admission that, “[a]t the job fair held in September
2015 the applicants submitted their applications in electronic form.” Pl.’s Disc. Req. at 6.
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Plaintiff also claims that “Defendant . . . stated that [it] would revise [its] response” to
request for admission Nos. 14, 16, 23, 24, 28, 29, and 32. Pl.’s Mot. at 14. However, Defendant
only agreed to “re-review its answers to these Requests for Admission and amend them if
necessary,” Joint Status Report at 13, Sept. 16, 2022, ECF No. 30. In line with this agreement,
Defendant states that it “reviewed these requests and determined it is not possible to revise its
responses.” Def.’s Opp’n at 20–21.
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Defendant responds that this request is “not relevant to the claims or defenses in this case,” as the
“job fair at issue in this case occurred in 2014.” Def.’s Disc. Resp. at 33. However, the
Complaint states that “[o]n September 12, 2015, Plaintiff conducted a job fair exactly the same
way as the year prior with the only difference being that applicants submitted electronic
applications instead of submitting paper resumes.” Compl. ¶ 30(w). Plaintiff thus appears to
seek admission that the 2015 job fair utilized electronic applications for the limited support it
provides to her argument that her conduct at that job fair was otherwise identical to her conduct
at the job fair the prior year after which she faced disciplined. Construing relevance broadly as it
must, see Breiterman, 324 F.R.D. at 30, the Court grants Plaintiff’s motion to compel
Defendant’s response to request No. 25.
3. Nos. 35–41
Request Nos. 35–41 seek admissions related to the list of seven purported comparator
employees discussed above. See Pl.’s Disc. Req. at 7. Defendant objects on the same grounds
discussed supra Section IV.B.8 that these individuals are not similarly situated to Plaintiff. See
Def.’s Opp’n at 20. For the reasons explained above, the Court finds that Plaintiff has done
enough to demonstrate that these requests are relevant and proportional to her case and therefore
grants Plaintiff’s motion to compel as to request Nos. 35–41.
V. CONCLUSION
For the foregoing reasons, the Court decides of each claim in Plaintiff’s Motion to
Compel, ECF No. 31, as follows:
• Interrogatory Nos. 1, 2: DENIED
• Requests for Production
o Nos. 1, 4: DENIED
o No. 5: GRANTED IN PART AND DENIED IN PART
o Nos. 8, 9: DENIED
o Nos. 10, 11, 15: DENIED
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o No. 12: GRANTED
o No. 13: GRANTED
o No. 14: DENIED
o Nos. 16, 17, 26, 27: GRANTED IN PART AND DENIED IN PART
o Nos. 18–24: GRANTED
o No. 25: DENIED
• Requests for Admission
o Nos. 1–7, 11–17, 20–24, 26–29, 32–34: DENIED
o No. 25: GRANTED
o Nos. 35–41: GRANTED
An order consistent with this Memorandum Opinion is separately and contemporaneously
issued.
Dated: March 9, 2023 RUDOLPH CONTRERAS
United States District Judge
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