EEOC v. Wal-Mart Stores East, L.P.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1690
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.
WAL-MART STORES EAST, L.P.,
doing business as Wal-Mart Distribution Center #6025,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:18-cv-00783-bbc — Barbara B. Crabb, Judge.
____________________
ARGUED MARCH 31, 2022 — DECIDED AUGUST 16, 2022
____________________
Before MANION, HAMILTON and BRENNAN, Circuit Judges.
HAMILTON, Circuit Judge. Defendant Wal-Mart Stores East,
L.P. (Walmart) offered temporary light duty to employees
who were injured on the job. At times relevant to this appeal,
it did not offer similar light duty to employees who were
pregnant or who were injured outside of their work for
Walmart. The Equal Employment Opportunity Commission
(EEOC) brought this action against Walmart claiming that the
2 No. 21-1690
denial of light duty to pregnant women violated the Civil
Rights Act of 1964 and the Pregnancy Discrimination Act. See
42 U.S.C. §§ 2000e(k) & 2000e-2(a)(1). The EEOC argued that
by accommodating all workers injured on the job, and deny-
ing all pregnant women a similar accommodation, Walmart
engaged in sex discrimination. After a contentious discovery
process, the parties filed cross-motions for summary judg-
ment, and the district court granted summary judgment to
Walmart. We affirm. 1
I. Factual and Procedural Background
The EEOC’s lawsuit challenges a policy to accommodate
workers injured on the job at Walmart Distribution Center
#6025 in Menomonie, Wisconsin. The center processes a vari-
ety of merchandise for distribution to Walmart stores, includ-
ing through manual sorting and packing. Workers who un-
loaded and packed these items were assigned to different
“modules” that varied significantly by weight. For some roles,
workers needed to lift and handle boxes weighing 30 pounds
or more.
Workers were sometimes injured on the job. In 2014,
Walmart implemented a “Temporary Alternate Duty” Policy
(TAD Policy) to offer light duty to those workers injured on
the job who wanted to keep working and earning their full
wages while complying with any relevant medical re-
strictions. For example, a worker with a lifting restriction after
1 After the period relevant for this lawsuit, Walmart changed its policy
and began offering temporary light duty to accommodate pregnant
women. We do not consider evidence related to this change for purposes
of determining whether Walmart’s earlier policy violated the law. See Fed.
R. Evid. 407.
No. 21-1690 3
an injury while loading boxes from a heavy module could be
offered work that would not aggravate the injury, such as “la-
bel backing, rack labeling, paperwork, painting and detail
cleaning.” Employees on light duty under the TAD Policy
were reevaluated for potential return to regular duty after 90
days.
Under the Wisconsin worker’s compensation law,
Walmart had a variety of legal and financial obligations to
workers who were injured on the job. See Wis. Stat. ch. 102.
Walmart says it designed the TAD Policy to reduce overall
costs while improving employee morale. During the time rel-
evant for this lawsuit, Walmart did not offer light duty, under
the TAD Policy or otherwise, to pregnant workers or to work-
ers who were injured off the job.
Instead, Walmart required pregnant workers with lifting
or other physical restrictions related to pregnancy to go on
leave. Some pregnant employees had to make difficult choices
between continuing to work at a job that was becoming phys-
ically too demanding, or even dangerous, and going on un-
paid leave for several months.
For example, Cassandra Lein testified that she had made
a private arrangement with her boss to work lighter modules
during the first trimester of her pregnancy. Eventually, how-
ever, that boss was unable to come to work, and Lein was re-
quired to work some of the heaviest modules. When Lein
asked the office manager to avoid putting her on the heavier
module, he denied her request and said “I don’t understand
why you’re crying right now.” Lein went home without pay
that day.
4 No. 21-1690
Lein transferred twice to other departments, trying to find
work that she could do safely while she was pregnant. She
finally brought her physical restrictions to Walmart’s atten-
tion because she “was getting a feeling in [her] side,” and the
pain was exacerbated by her work. She testified that she de-
layed bringing her pain to Walmart’s attention because “then
I would be out of a job. So I avoided the restrictions and chose
to look for the advantages in the bad situation.” Once she in-
formed Walmart of her lifting restrictions, she was placed on
unpaid leave.
Other pregnant workers echoed Lein’s experience. Eve-
lynn Welch informed Walmart of her pregnancy and “begged
for light duty” because her regular duties were too much for
her. Her boss denied her request, telling her that giving her
light duty would be “favoritism.” She continued working un-
til she started bleeding and the fetal heart rate began to drop.
She needed to save money for unpaid maternity leave, and
she testified that going without an income “wasn’t really an
option.” Even so, Welch eventually quit when she was unable
to sustain her work at Walmart.
In September 2018, the EEOC filed this suit against
Walmart on behalf of a class of pregnant workers at Distribu-
tion Center #6025 alleging that excluding pregnant women
from the TAD Policy caused Walmart to violate workers’
rights under Title VII of the Civil Rights Act of 1964 and the
Pregnancy Discrimination Act. See 42 U.S.C. §§ 2000e(k) &
2000e-2(a)(1). The district court denied Walmart’s motion to
dismiss, and the case moved to discovery. As we will see, dis-
covery was hotly contested, particularly as a result of the
EEOC’s insistence that Walmart obtain workers’ medical
No. 21-1690 5
records through the EEOC and not through non-party discov-
ery requests directly to health-care providers.
The district court eventually dismissed the claims of two
named complainants as a sanction for violations of the court’s
discovery orders. The district court also denied the EEOC’s
motion to compel Walmart to produce certain non-documen-
tary evidence, including evidence about its eventual (and ir-
relevant under Rule 407) change in policy to start accommo-
dating pregnant employees with light duty assignments. The
parties filed cross-motions for summary judgment, and the
court granted Walmart’s motion.
The EEOC has appealed on the merits of its pregnancy dis-
crimination theory, arguing that we should either reverse and
direct the entry of judgment in its favor or order a trial. The
EEOC also challenges the dismissal of two claimants as a dis-
covery sanction and the denial of its motion to compel addi-
tional discovery about the TAD Policy.
II. Analysis
We review de novo the district court’s grant of summary
judgment, giving the EEOC the benefit of conflicts in the evi-
dence and drawing all reasonable inferences in its favor. Lewis
v. Indiana Wesleyan University, 36 F.4th 755, 759 (7th Cir. 2022).
Summary judgment is proper when “the movant shows that
there is no genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). We can affirm a grant of summary judgment on any
ground supported by the record as long as it was adequately
addressed in the district court and the losing party had an op-
portunity to contest it. O’Brien v. Caterpillar Inc., 900 F.3d 923,
928 (7th Cir. 2018). We address first the merits of the EEOC’s
6 No. 21-1690
pregnancy discrimination theory and then the discovery is-
sues.
A. Pregnancy Discrimination
The EEOC argues that Walmart violated the Pregnancy
Discrimination Act by not making light duty under the TAD
Policy available to pregnant employees. Title VII makes it un-
lawful in relevant part for an employer “to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). Congress
passed the Pregnancy Discrimination Act in part to overrule
the holding in General Electric Co. v. Gilbert, 429 U.S. 125 (1976),
which had held that discrimination because of pregnancy was
not discrimination because of sex. Young v. United Parcel Ser-
vice, Inc., 575 U.S. 206, 227–28 (2015); see also Pub. L. No. 95-
555, 92 Stat. 2076 (1978). The Act also “illustrate[s] how dis-
crimination against pregnancy is to be remedied.” Young, 575
U.S. at 228, quoting California Federal Savings & Loan Ass’n v.
Guerra, 479 U.S. 272, 285 (1987).
The Act accomplished these goals through two clauses
that amended Title VII. The first declared that sex discrimina-
tion includes discrimination “because of or on the basis of
pregnancy, childbirth, or related medical conditions.”
§ 2000e(k). The second provided that “women affected by
pregnancy, childbirth, or related medical conditions shall be
treated the same for all employment-related purposes … as
other persons not so affected but similar in their ability or ina-
bility to work.” Id. (emphasis added).
A plaintiff can assert a claim of pregnancy discrimination
under either a disparate-treatment or a disparate-impact
No. 21-1690 7
theory of liability. Young, 575 U.S. at 212–13. In this case, the
EEOC seeks to use circumstantial evidence to prove disparate
treatment in violation of the second clause of the Pregnancy
Discrimination Act. The EEOC invokes the familiar three-step
McDonnell Douglas burden-shifting framework, as adapted to
pregnancy discrimination in Young. See id. at 229, citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). “Ulti-
mately the court must determine whether the nature of the
employer’s policy and the way in which it burdens pregnant
women shows that the employer has engaged in intentional
discrimination.” Id. at 211 (emphasis added).
1. Young v. UPS and its Steps
The Supreme Court’s most relevant guidance under the
Pregnancy Discrimination Act came in Young, where the court
vacated summary judgment in favor of the employer. 575 U.S.
at 232. In doing so, it rejected both parties’ interpretations of
the Act and adopted its own. The employee in Young was a
driver for UPS. UPS expected her to lift parcels weighing up
to 70 pounds. After she became pregnant, Young’s doctor told
her not to lift more than 20 pounds and later in her pregnancy
not more than 10 pounds. Young asked UPS for light duty, but
UPS refused. Young went on leave during her pregnancy and
lost her employee medical coverage. Id. at 211.
Young argued that UPS was discriminating against preg-
nant drivers because it accommodated other drivers who
were not pregnant but were “similar in their … inability to
work.” Id., citing 42 U.S.C. § 2000e(k). In its defense, UPS ex-
plained that it accommodated drivers who had become disa-
bled through on-the-job injuries, as well as those who had lost
federal Department of Transportation certifications, and
those who had disabilities covered by the Americans with
8 No. 21-1690
Disabilities Act of 1990. Id. at 211–12. In rebuttal, Young also
offered evidence that UPS had accommodated drivers who
were injured off the job or whose disabilities stemmed from
diseases, including cancer. Id. at 217. A union steward testi-
fied that the only light duty requests that UPS declined were
from pregnant women. Id.
Young proposed a broad interpretation of the Act’s second
clause, which would find a violation if an employer accom-
modated any worker’s physical limitations, regardless of rea-
sons, and if it denied a similar accommodation to a similarly-
limited pregnant employee. The Court rejected this position,
which it described as “most-favored-nation” status for preg-
nant workers. Id. at 221–22.
The Court also rejected UPS’s position and adopted in-
stead a middle ground that governs our approach to this case.
The Court adapted the burden-shifting framework of McDon-
nell Douglas to the Pregnancy Discrimination Act. First, “a
plaintiff … may make out a prima facie case by showing, as
in McDonnell Douglas, that she belongs to the protected class,
that she sought accommodation, that the employer did not ac-
commodate her, and that the employer did accommodate oth-
ers ‘similar in their ability or inability to work.’” Id. at 229,
quoting 42 U.S.C. § 2000e(k). The Court noted that the first-
step burden is “not onerous.” Id. at 228, quoting Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If a plaintiff can make a prima facie case, the burden shifts
to the employer to offer at step two a “legitimate, nondiscrim-
inatory” justification for denying the accommodation. Id. at
229, quoting McDonnell Douglas, 411 U.S. at 802. The Court
made clear that such justifications “normally cannot consist
simply of a claim that it is more expensive or less convenient
No. 21-1690 9
to add pregnant women to the category of those (‘similar in
their ability or inability to work’) whom the employer accom-
modates. After all, the employer in Gilbert could in all likeli-
hood have made just such a claim.” Id.A plaintiff can overcome summary judgment at the third
step by “providing sufficient evidence that the employer’s
policies impose a significant burden on pregnant workers,
and that the employer’s ‘legitimate, nondiscriminatory’ rea-
sons are not sufficiently strong to justify the burden,”
“giv[ing] rise to an inference of intentional discrimination.”
Id. at 229. The employee can do this by offering evidence “that
the employer accommodates a large percentage of nonpreg-
nant workers while failing to accommodate a large percent-
age of pregnant workers.” Id. at 229–30. Plaintiff Young satis-
fied that burden, requiring that summary judgment for UPS
be vacated, by showing that UPS provided favorable treat-
ment to “at least some employees whose situation cannot rea-
sonably be distinguished from Young’s.” Id. at 231.
Young also offered evidence that several UPS policies for
other categories of drivers worked together to accommodate
lifting restrictions for most non-pregnant drivers but categor-
ically refused to accommodate pregnant drivers. Id. at 230.
The Supreme Court made clear that a reviewing court must
consider the combined effects of an employer’s policies and
the strength of the justifications for each policy when com-
bined. Id. at 231.
2. Step Two in This Case
Walmart concedes that the EEOC has satisfied step one of
Young by showing that Walmart excluded pregnant employ-
ees from the TAD Policy, so we focus in turn on steps two and
10 No. 21-1690
three under Young. At step two, Walmart relies on reasons for
its official TAD Policy to justify providing accommodations
only to workers who were injured on the job. The TAD Policy
describes its benefits as:
• Enhanced associate loyalty as providing
TAD demonstrates a caring attitude and al-
lows the associate to continue to be a con-
tributing part of the facility team.
• Increased morale of the injured associate.
• Decreased associate recovery time, which al-
lows the associate to remain productive.
• Lowered accident costs by reducing the pay-
ment of lost wages.
• Reduced legal exposure by allowing the as-
sociate to earn full wages.
Walmart added the following context through the declaration
of John Murphy, the former human resource manager for the
Walmart facility at issue here:
28. TAD reduces Walmart’s costs overall be-
cause Walmart receives work from the associate
with the occupational injury, and Walmart does
not have to hire a different associate to do that
work while the occupationally injured associate
performs no work.
29. TAD reduces Walmart’s legal exposure be-
cause the injured associate earns full wages, in-
stead of the reduced wages under the worker’s
compensation system.
No. 21-1690 11
In sum, Walmart offers evidence that the purpose of the TAD
Policy is to implement a worker’s compensation program that
benefits Walmart’s employees while limiting the company’s
“legal exposure” and costs of hiring people to replace injured
workers.
In Legg v. Ulster County, 820 F.3d 67 (2d Cir. 2016), the Sec-
ond Circuit considered a similar policy by a county that ac-
commodated with light duty correctional officers who had
been injured on the job, but not others similarly limited for
other reasons, including pregnancy. At step two of the Young
analysis, the county explained that it offered corrections offic-
ers light duty only for occupational injuries, and not for preg-
nancy or other causes, because the state worker’s compensa-
tion law required municipalities to pay officers injured on the
job but did not require the same for officers unable to work
for any other reasons, including pregnancy. Legg, 820 F.3d at
74–75. The Second Circuit accepted this justification from the
county for step two, determining that “compliance with a
state workers’ compensation scheme is a neutral reason for
providing benefits to employees injured on the job but not
pregnant employees.” Id. We agree.
Wisconsin’s worker’s compensation law gives workers in-
jured on the job under certain conditions a right to an indem-
nity as wages. See Wis. Stat. § 102.43. The rate of this indem-
nity depends on the extent of any disability caused by the
worker’s on-the-job injury. See id. Employers are also liable
for loss of earnings during any period of temporary disability.
§ 102.43(9). An employer can limit this latter liability by offer-
ing suitable employment—e.g., light duty under the TAD Pol-
icy—to an employee able to return to restricted work during
the healing period. § 102.43(9)(a). Under the TAD Policy,
12 No. 21-1690
Walmart pays full wages while workers heal on light duty,
rather than the reduced wages provided under the worker’s
compensation system if they were on leave.
Under this arrangement, Walmart says it seeks to comply
with its obligations under Wisconsin law while it receives
work from the healing employee and avoids the need to hire
a replacement. Offering temporary light duty to workers in-
jured on the job pursuant to a state worker’s compensation
law is a “legitimate, nondiscriminatory” justification for
denying accommodations under the TAD Policy to everyone
else, such as individuals not injured on the job, including
pregnant women. See Young, 575 U.S. at 229, quoting McDon-
nell Douglas, 411 U.S. at 802; see also Legg, 820 F.3d at 75.
The EEOC argues here that the Pregnancy Discrimination
Act, as interpreted by Young, imposes a heightened burden of
production at step two—a burden that Walmart fails to meet.
According to the EEOC, Young requires Walmart “to do more
than simply articulate the reason why it provided a benefit to
non-pregnant employees. The employer must also articulate
the reasons why it excluded pregnant employees from the benefit.”
The EEOC claims that the text of the Pregnancy Discrimina-
tion Act supports this argument for a heightened burden at
step two. We are not persuaded. The second clause of the Act
clarifies that pregnant women must “be treated the same” as
others “similar in their ability or inability to work,” but it is a
long stretch to say that this text requires a particular, height-
ened burden on employers in Young’s step two. 42 U.S.C.
§ 2000e(k).
To support this heightened burden theory, the EEOC
points to two passages in Young:
No. 21-1690 13
Ultimately the court must determine whether
the nature of the employer’s policy and the way
in which it burdens pregnant women shows
that the employer has engaged in intentional
discrimination.
…
[W]hy, when the employer accommodated so
many, could it not accommodate pregnant
women as well?
Young, 575 U.S. at 211 & 231. These statements do not bear the
weight that the EEOC seeks to place on them. To begin with,
they do not address the burden at step two of the Young anal-
ysis. The first quotation refers to the need to focus the dispar-
ate-treatment inquiry on evidence of intentional discrimina-
tion. Id. at 211. The second quotation is a fact-focused rhetor-
ical question. In Young, the employer’s multiple policies com-
bined to accommodate most non-pregnant workers, and that
point was addressed at the third step of the inquiry, not the
second. Id. at 231. Neither quotation supports a heightened
burden of production for employers at step two. Walmart met
its burden at step two by offering a legitimate reason for the
TAD Policy’s limits that was not discriminatory. From
Walmart’s standpoint, it had chosen for sound reasons to offer
a benefit to a certain category of workers, those injured on the
job, without intending to discriminate against anyone else
with physical limitations, whether caused by off-the-job inju-
ries, illness, pregnancy, or anything else, to whom its reasons
did not apply.
14 No. 21-1690
3. Step Three in This Case
At step three, the burden shifts back to the EEOC to
“provid[e] sufficient evidence that the employer’s policies im-
pose a significant burden on pregnant workers, and that the
employer’s ‘legitimate, nondiscriminatory’ reasons are not
sufficiently strong to justify the burden, but rather—when
considered along with the burden imposed—give rise to an
inference of intentional discrimination.” 575 U.S. at 229, quot-
ing McDonnell Douglas, 411 U.S. at 802. Here, the differences
between Walmart’s TAD Policy and the employer’s multiple
policies in Young defeat the EEOC’s theory of discrimination.
The Court vacated summary judgment for UPS in Young
because it provided accommodations under multiple policies
to several other groups of workers with lifting restrictions
who were similar to Young in their ability or inability to work.
Id. at 230. Like Walmart here, UPS accommodated occupation-
ally injured workers unable to perform their normal work as-
signments. Unlike Walmart, though, UPS also provided light-
duty assignments to accommodate drivers who lost necessary
certifications due to a failed medical examination, involve-
ment in an accident, or a lost driver’s license. Id. at 215. Young
also offered evidence of specific other employees accommo-
dated by UPS, including some accommodated with light duty
to cope with lost certifications and injuries that did not occur
on the job. Id. at 216–17. In short, UPS seemed to accommo-
date lifting restrictions resulting from every condition except
pregnancy. In this case, however, the EEOC has not offered
evidence of comparators who were similar to pregnant
women in their ability or inability to work and who benefited
from light duty, other than workers injured on the job.
No. 21-1690 15
In Young, the Supreme Court noted that a “plaintiff can
create a genuine issue of material fact as to whether a signifi-
cant burden exists by providing evidence that the employer
accommodates a large percentage of nonpregnant workers
while failing to accommodate a large percentage of pregnant
workers.” 575 U.S. at 229–30. The EEOC argues that it can sat-
isfy this significant burden test because under the TAD Policy
Walmart denied light duty to 100 percent of pregnant workers
and granted light duty to 100 percent of occupationally in-
jured workers. The argument is circular, however, and effec-
tively asks the court to adopt the “most-favored-nation” sta-
tus for pregnant employees that the Supreme Court rejected
in Young. Id. at 222.
The EEOC cannot satisfy its burden at step three of the
Young analysis by pointing to numbers showing only that
Walmart actually implements its TAD Policy consistently
with the justification for the policy that is legitimate and non-
discriminatory. Young did not adopt a specific numerical
threshold or ratio for non-pregnant workers accommodated
and pregnant workers not accommodated to support an in-
ference of pregnancy discrimination. But the facts of Young
tell us what was sufficient there, and the evidence here does
not approach that showing.
The closest the EEOC came to showing accommodation of
similarly situated workers outside the TAD Policy for on-the-
job injuries was to offer evidence in the district court that one
complainant-employee was accommodated with a reduced
schedule when she was not pregnant but was denied a similar
accommodation when she was pregnant. A Walmart human
resources clerk testified that the company approved Stepha-
nie Kohls’ request to reduce her schedule to attend school.
16 No. 21-1690
Kohls testified, though, that when she was pregnant, her doc-
tor gave her a restriction that limited her to an eight-hour
workday. Walmart never accommodated this restriction and
required Kohls to take leave during her pregnancy.
If developed further, and perhaps as applied to a number
of other employees who were neither pregnant nor injured on
the job, this type of evidence could show a “significant bur-
den” on pregnant workers and undermine Walmart’s stated
justifications for limiting access to the TAD Policy. See Young,
575 U.S. at 229–30. The EEOC has abandoned this argument
on appeal, however, and it is waived. Miller v. Chicago Transit
Authority, 20 F.4th 1148, 1155 (7th Cir. 2021) (“arguments not
raised in an opening brief are waived”), quoting Tuduj v. New-
bold, 958 F.3d 576, 579 (7th Cir. 2020). The EEOC has not pre-
sented other evidence suggesting that workers similar to
pregnant women in their ability or inability to work are ac-
commodated under any employer policies barred to pregnant
women, including the TAD Policy, other than the occupation-
ally injured workers themselves.
We arrive at a different conclusion at step three than the
Second Circuit did in Legg v. Ulster County, a similar but dis-
tinguishable case. See 820 F.3d at 75. Recall that Legg involved
corrections officers who brought a claim of pregnancy dis-
crimination against their county employer. The county of-
fered light duty to workers injured on the job but not to its
sole pregnant employee. Like Walmart here, the county tried
to justify the policy based on the state’s worker’s compensa-
tion law. The court reversed judgment as a matter of law for
the county for two reasons. First, and distinguishing Legg
from this case, the employer in Legg had offered inconsistent
and confusing rationales for its policy to accommodate those
No. 21-1690 17
injured on the job but not other employees. There is no similar
evidence here. Second, the court found that the burden on
pregnant employees could be deemed significant enough to
outweigh the county’s justifications at step three of the Young
framework. Id. at 75–76. The Second Circuit left that choice to
the jury.
Without the evidence of confused and inconsistent ration-
ales, the result in Legg would, in our view, be difficult to rec-
oncile with Young’s rejection of the “most-favored-nation”
theory of pregnancy discrimination. 575 U.S. at 222. But again,
we have no such evidence of confused and inconsistent expla-
nations here, so we find Legg distinguishable in any event. The
district court properly granted summary judgment on the
merits of the pregnancy discrimination claim.
B. Discovery Sanctions
The EEOC also argues that the district court improperly
dismissed two claimants as a discovery sanction. We review
for abuse of discretion the dismissal of a claimant’s case as a
discovery sanction. Donelson v. Hardy, 931 F.3d 565, 569 (7th
Cir. 2019). “Of all possible sanctions, dismissal is considered
draconian, and we must be vigilant in our review.” Maynard
v. Nygren, 372 F.3d 890, 892 (7th Cir. 2004) (internal quotations
and citation omitted). Under the abuse of discretion standard,
we uphold any reasonable discovery sanction fashioned by
the district court, even if we might have made a different
choice. Wine & Canvas Development, LLC v. Muylle, 868 F.3d
534, 539 (7th Cir. 2017). A party challenging a choice of sanc-
tion must show that no reasonable person would agree that
the sanction was appropriate. Id. “Factors relevant to the de-
cision to dismiss include the plaintiff’s pattern of and personal
responsibility for violating orders, the prejudice to others
18 No. 21-1690
from that noncompliance, the possible efficacy of lesser sanc-
tions, and any demonstrated merit to the suit.” Pendell v. City
of Peoria, 799 F.3d 916, 917 (7th Cir. 2015).
The dismissal sanction here was imposed under Federal
Rule of Civil Procedure 37. Dismissal under Rule 37 must be
supported by fault, as shown by “extraordinarily poor judg-
ment” or “gross negligence,” rather than mere mistake or in-
advertence. Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 776 (7th
Cir. 2016), quoting Marrocco v. General Motors Corp., 966 F.2d
220, 224 (7th Cir. 1992). The district court dismissed claimants
Shannon Sonnentag and Leah Hayworth after it “warned
plaintiff more than once that claimants would be struck if
plaintiff did not produce the claimants’ records in a timely
manner.”
To explain, discovery for this litigation was slowed by the
EEOC’s relatively late introduction of new claimants and the
agency’s insistence on retaining control over the production
of medical records. The EEOC was still adding claimants ap-
proximately a month prior to the original deadline for dispos-
itive motions. When Walmart served subpoenas on the non-
party health-care providers of twelve claimants, the EEOC
moved to quash the subpoenas as broad and unnecessarily in-
vasive of private medical information. Instead, the EEOC
sought to manage production of medical records so that it
could redact or withhold irrelevant information.
In early February 2020, the magistrate judge overseeing
discovery asked the EEOC to confirm whether it was “willing
to answer on behalf of each claimant for all discovery de-
mands.” The EEOC responded:
No. 21-1690 19
[EEOC]: Yes. We accept all discovery demands
through written discovery for the claimants—
The Court: Okay.
[EEOC]:—and respond on behalf of each claim-
ant, and the same with deposition notices. We
produce claimants for deposition pursuant to
deposition notices …. to the extent there's diffi-
culty with our ability to do that, we drop claimants.
(Emphasis added.) Later in the hearing, the magistrate judge
warned the parties about the consequences of violating the
court’s discovery orders:
We are now entering Rule 37(b) territory …. [I]f the
EEOC was not forthcoming and timely in
providing all information it was required to
provide about a claimant prior to that claimant's
deposition, I predict the judge would grant a mo-
tion to strike that claimant from the lawsuit ….
[W]hen this call is over and when I have given a
final order to the EEOC about what it must pro-
vide and when, the Court expects the EEOC to
follow it, and I'm confident that [counsel for the
EEOC] will commit to that. But if something hap-
pens and the Court finds fault, there will be severe
consequences.
(Emphases added.) The magistrate judge then reiterated that
the EEOC would be responsible for ensuring the claimants’
availability for deposition and providing relevant documents
30 days before each deposition.
The EEOC was not able to keep to these deadlines, and the
court repeatedly warned the EEOC of potential consequences,
20 No. 21-1690
including dismissal, for continued failure to comply with dis-
covery orders. In late February, the court clarified that if
Walmart’s fears about discovery issues were justified, “then it
is likely that the court will strike from this lawsuit any pro-
posed claimant for whom the EEOC does not timely provide
the required information and schedule for a timely deposi-
tion.” In a discovery conference on March 2, the magistrate
judge repeated the warning: “Judge Crabb is fine with strik-
ing claimants, that from the judge’s perspective, she has al-
ready accommodated the EEOC by pushing these deadlines
out so that things could happen.” The discovery dispute con-
tinued however, and on March 5, Walmart moved to strike
nine claimants.
The district court found on March 27 that the EEOC had
“violate[d] court-ordered discovery production deadlines,”
but at that time, the court refused to “find that the specific cir-
cumstances present in this case warrant the striking of nine
claimants.” On April 8, 2020, the court imposed a new dead-
line of August 31 for depositions, with production of each
claimant’s medical records due 30 days before her deposition.
The district court’s initial and measured responses to the
EEOC’s failures were well within its discretion, as were the
repeated and clear warnings that it would not indulge further
delays. Brown v. Columbia Sussex Corp., 664 F.3d 182, 191–92
(7th Cir. 2011) (affirming dismissal of plaintiffs’ claims for re-
peatedly missing discovery deadlines); Securities & Exchange
Commission v. Homa, 514 F.3d 661, 678 (7th Cir. 2008) (affirm-
ing grant of default judgment for repeated refusals to comply
with discovery orders). The district court’s orders were quite
specific, and the EEOC failed to comply. Cf. Evans v. Griffin,
932 F.3d 1043, 1046–47 (7th Cir. 2019) (reversing sanction of
No. 21-1690 21
dismissal under Rule 37(b) for failure to comply with discov-
ery orders; court order “did not direct either party to engage
in any specific course of discovery”).
But then the EEOC failed to provide certain medical rec-
ords 30 days prior to the depositions of Sonnentag and Hay-
worth in August 2020. At that point, the district court imposed
the sanction of dismissal for those two claimants, though not
the entire case.
The EEOC argues that the district court failed to justify the
dismissals with a sufficient finding of culpability. The EEOC
says that its discovery violations were inadvertent and re-
sulted in no prejudice to Walmart. We see things differently.
The district court did not dismiss these two claimants for one
inadvertent mistake. The court had repeatedly tolerated dis-
covery delays by the EEOC while warning the EEOC that its
patience was not infinite, and it had given ample warning that
claimants might be dismissed if the EEOC continued to miss
court-ordered deadlines.
This sanction was imposed within the boundaries of the
court’s powers under Rule 37(b)(2)(A) for the EEOC’s failure
to obey discovery orders. See Ramirez, 845 F.3d at 776. District
courts must be able to enforce deadlines to effectively manage
their docket. Flint v. City of Belvidere, 791 F.3d 764, 768 (7th Cir.
2015). The dismissal of Sonnentag and Hayworth was strong
medicine but reasonable under the circumstances. Having
granted the EEOC’s request to control the production of
claimants’ medical records, having seen the EEOC fail to meet
its obligations more than once, and having given the EEOC a
further chance to comply but with a warning, the district court
acted well within its discretion in dismissing the two claim-
ants. See Donelson, 931 F.3d at 570 (affirming dismissal after
22 No. 21-1690
warnings to plaintiff to stop obstructing discovery proved in-
effective); Wine & Canvas Development, 868 F.3d at 539 (affirm-
ing monetary sanctions against plaintiff for missing discovery
deadline by one day); see also Pendell, 799 F.3d at 917 (affirm-
ing dismissal under Rule 37(d) after plaintiff repeatedly failed
to appear for her deposition: “a court may dismiss a suit after
the plaintiff has willfully refused to comply with discovery
orders and the plaintiff has been warned that noncompliance
may lead to dismissal”); Domanus v. Lewicki, 742 F.3d 290, 300,
302 (7th Cir. 2014) (affirming grant of default judgment
against defendants for discovery abuses, including delay);
Salgado v. General Motors Corp., 150 F.3d 735, 741–43 (7th Cir.
1998) (affirming grant of summary judgment; when plaintiff
missed extended discovery deadline, despite court’s warning,
district court excluded plaintiff’s expert witness, leaving
plaintiff with no case).
C. Denial of Motion to Compel Discovery
Finally, the EEOC argues that the district court abused its
discretion in denying its motion to compel discovery of non-
documentary evidence about the TAD Policy. District courts
have broad discretion in discovery-related matters, and we re-
view the denial of a motion to compel for abuse of discretion.
See Gonzalez v. City of Milwaukee, 791 F.3d 709, 713 (7th Cir.
2015). “We will only reverse a district court’s ruling after a
clear showing that the denial of discovery resulted in actual
and substantial prejudice.” Id.First, the district court did not deny the EEOC’s motion to
compel in full. The EEOC had sought information about par-
ticular Walmart decision-makers involved in the TAD Policy,
related training, and why the policy was later changed to in-
clude pregnant women. The magistrate judge’s order said:
No. 21-1690 23
Therefore, the EEOC may discover Walmart’s
written policies on breastfeeding, lactation, and
school-related schedule adjustments that were
in effect at the time alleged in the EEOC’s com-
plaint. The EEOC also may discover any
nonprivileged documents that explain why
Walmart changed its TAD policy. But that’s it:
production is limited to the documents. This will
give the EEOC the information most relevant to
its concerns without unduly burdening
Walmart or its policy makers.
(Emphasis added.) The magistrate judge denied other discov-
ery “both on relevance grounds and pursuant to Fed. R. Evid.
407.”
The district court later overruled the EEOC’s objections to
the magistrate judge’s discovery order, reasoning that the
EEOC had not alleged a lack of training or specific actions by
policymakers that would justify the additional information
requested. On appeal, the EEOC argues that the district
court’s discovery limitations stem from the court’s misappli-
cation of Young and its errors in interpreting the second clause
of the Pregnancy Discrimination Act. The EEOC claims that
suits under the second clause permit broader discovery to
learn “whether the employer explained why it excluded preg-
nant employees from a benefit.” We do not agree. As ex-
plained above, this language in Young does not create a
heightened burden and does not justify limitless non-docu-
mentary discovery, especially when the evidence appears
likely to be irrelevant and inadmissible under Fed. R. Evid.
407.
24 No. 21-1690
The EEOC also fails to show real and substantial prejudice
from the denial of additional discovery. See Gonzalez, 791 F.3d
at 713. Given that lack of prejudice and the district court’s
broad discretion as to the scope of discovery, we find no abuse
of discretion here.
The judgment of the district court is
AFFIRMED.