Tarquinii v. Harker

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAWAN N. TARQUINII, :
:
Plaintiff, : Civil Action No.: 21-1567 (RC)
:
v. : Re Document Nos.: 38, 40, 42, 43, 44,
: 47
CARLOS DEL TORO, in his official capacity :
as U.S. Secretary of the Navy :
:
Defendant. :
MEMORANDUM OPINION
DENYING PLAINTIFF’S MOTION FOR SANCTIONS; GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S MOTION TO COMPEL; DENYING
DEFENDANT’S MOTION TO STRIKE
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
Scheduling Order, ECF No. 16; Min. Order, Apr. 7, 2022. 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. On March 9, 2023, the Court granted in part and denied in part Plaintiff’s motion
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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).
to compel. See Tarquinii v. Del Toro, No. 21-cv-1567, 2023 WL 2424618, at *8 (D.D.C. Mar. 9,
2023).
Plaintiff filed a motion to sanction Defendant on April 12, 2023, for not complying with
the Court’s order. Pl.’s Mot. Sanctions, ECF No. 38. On April 26, 2023, Plaintiff filed another
motion for discovery, again claiming that Defendant did not fully comply with the Court’s order.
Pl.’s Mot. & Report Def.’s Deficient Resp. to Order (“Pl.’s 1st Mot.”), ECF No. 40. Plaintiff
filed a second motion for discovery on May 25, 2023. Pl.’s Mot. & 2d Report Def.’s Deficient
Resp. to Order (“Pl.’s 2d Mot.”), ECF No. 42. On June 6, 2023, Defendant filed a combined
motion to strike Plaintiff’s May 25 motion and stay Defendant’s obligation to respond, or in the
alternative, a motion to seal Plaintiff’s May 25 motion. Def.’s Mot. Strike (“Def.’s Mot.”), ECF
No. 43. Plaintiff filed a third motion for discovery on July 17, 2023. Pl.’s Mot. & 3d Report
Def.’s Deficient Resp. to Order (“Pl.’s 3d Mot.”), ECF No. 44. On July 28, 2023, Defendant
filed a motion for a status conference. Def.’s Mot. Status Conference, ECF No. 47.
For the reasons set forth below, Plaintiff’s Motion for Sanctions, ECF No. 38, is denied,
Plaintiff’s Motions to Compel, ECF Nos. 40, 42, & 44 are granted in part and denied in part,
Defendant’s Motion to Strike, ECF No. 43, is denied, and Defendant’s Motion for a Status
Conference, ECF No. 47, is denied.
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. ¶¶ 15–16; 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
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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. ¶¶ 27–29. 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.
On March 9, 2023, the Court issued a memorandum opinion and order granting in part
and denying in part Plaintiff’s motion to compel. See Tarquinii, 2023 WL 2424618, at *1.
Plaintiff filed a motion to sanction Defendant on April 12 for not complying with the Court’s
order after she had not received Defendant’s compelled discovery response. See Pl.’s Mot.
Sanctions. On April 14, Defendant provided part of the supplemental discovery responses to
Plaintiff. Def.’s Suppl. Resp., Pl.’s 1st Mot., Ex. 1 at 4, ECF No. 40-2; see also Def.’s Opp’n to
Pl.’s Mot. Compel (“Def.’s Reply”), ECF No. 41. On April 26, Plaintiff filed another motion for
discovery, claiming that Defendant produced deficient responses to production requests Nos. 5,
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12, 13, 16-24, 26, 27, and admission requests Nos. 25 and 38. See Pl.’s 1st Mot. Defendant
provided the next part of the supplemental discovery responses on May 10. See Def.’s Reply at
3. Plaintiff filed a second motion for discovery on May 25, reiterating that Defendant produced
deficient responses to production requests Nos. 5, 12, 16-24, 26, 27, and admission request No.
25, but did not include the claims about production request No. 13 and admission request No. 38
from the April 26 motion. See Pl.’s 2d Mot. Defendant provided the third supplemental
discovery response on May 31. See Def.’s Mot. at 3. On June 6, Defendant filed a combined
motion to strike Plaintiff’s May 25 motion and stay Defendant’s obligation to respond, claiming
that Plaintiff should be sanctioned for acting in bad faith. See id. at 4-6. Defendant also
motioned in the alternative to seal Plaintiff’s May 25 motion because she published confidential
information on the public docket. See id. at 7-11. Considering the arguments made by
Defendant in the motion to strike and the earlier granted protective order, the Court placed
Plaintiff’s May 25 motion for discovery under seal. See Min. Order, July 7, 2023; Def.’s Mot. at
7-11; Protective Order, ECF No. 21. On July 17, Plaintiff filed a third motion for discovery,
repeating the claims from the May 25 motion. See Pl.’s 3d Mot. On July 28, 2023, Defendant
responded to the Plaintiff’s third motion and filed a motion for a post-discovery status
conference. See Def.’s 3d Reply, ECF No. 45. Plaintiff responded to that pleading on July 31,
2023. See Pl.’s Reply to Opp’n to 3d Mot., ECF No. 46.
III. LEGAL STANDARDS
A. Motion for Sanctions
Rule 37(b)(2) of the Federal Rules of Civil Procedure allows a party to seek sanctions
when another party “fails to obey an order to provide or permit discovery.” Fed. R. Civ. P.
37(b)(2)(A). “A court has broad discretion to manage discovery, and ‘[t]his deference [] extends
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to the district court’s imposition of discovery sanctions.’” See Mokhtar v. Kerry, No. 12-cv-
1734, 2014 WL 12792553, at *2 (D.D.C. Oct. 17, 2014) (citing Flynn v. Dick Corp., 481 F.3d
824, 835 (D.C. Cir. 2007)). The D.C. Circuit has held that “[t]he central requirement of Rule 37
is that ‘any sanction must be just.’” Bonds v. Dist. Of Columbia, 93 F.3d 801, 808 (D.C. Cir.
1996) (citing Ins. Corp. v. Compagnie des Bauxites de Guinée, 456 U.S. 694, 707 (1982)).
When determining whether a sanction is just, a court may consider “the resulting prejudice to the
other party, any prejudice to the judicial system, and the need to deter similar misconduct in the
future.” Mokhtar, 2014 WL 12792553, at *2; see Shea v. Donohoe Constr. Co., 795 F.2d 1071,
1074 (D.C. Cir. 1986)).
B. Motion for Discovery
1. 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.
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).
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2. 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).
C. Motion to Strike
Federal Rule of Civil Procedure 12(f) provides in part that “the court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). “A court has broad discretion in considering a motion to strike
but granting such a motion is a drastic remedy. As a result, motions to strike are disfavored.”
Jackson v. Starbucks Corp., No. 19-cv-1487, 2020 WL 3791873, at *2 (D.D.C. July 7, 2020)
(internal citations omitted). When considering a motion to strike, a court must “draw all
reasonable inferences in the pleader’s favor and resolve all doubts in favor of denying the motion
to strike.” Nwachukwu v. Karl, 216 F.R.D. 176, 178 (D.D.C. 2003). Motions to strike will be
granted “only if the portions sought to be stricken are prejudicial or scandalous.” Id. Therefore,
“motions to strike are typically granted when the allegations are ‘indefensible and wholly
inappropriate’ and undermine the dignity of the Court.” Jackson, 2020 WL 3791873, at *2
(citing Pigford v. Veneman, 215 F.R.D. 2, 4 (D.D.C. 2003)).
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IV. ANALYSIS
A. Plaintiff’s Motion for Sanctions
Slightly over a month after the Court granted in part and denied in part Plaintiff’s motion
to compel, Plaintiff filed a motion to sanction Defendant “for not complying with Judge’s
Order.” Pl.’s Mot. Sanctions at 1. Plaintiff claimed that Defendant was required to respond to
the discovery items, but that Plaintiff had not yet received a response as of April 12. Id. Since
then, Defendant has provided three separate supplemental discovery responses. Def.’s Reply at 3
(stating that Defendant sent discovery on April 14 and May 10); Def.’s Mot. at 3 (stating that
Defendant provided the third discovery response on May 31). On April 4, 2023, Plaintiff
emailed Defendant regarding the lack of discovery and claims that she never received a response.
Pl.’s Mot. Sanctions at 1. However, Defendant’s counsel shows they responded to this email
within an hour, stating that they “hope[d] to send [Plaintiff] a production by the end of this
week/early next week.” Def.’s Opp’n to Pl.’s Mot. Sanctions (“Def.’s Sanction Reply”), Ex. 2 at
1, ECF No. 39-2. 2 Plaintiff acknowledges that Defendant has now provided these discovery
responses and references them in the three motions to compel. See Pl.’s 1st Mot. at 1; Pl.’s 2d
Mot. at 1-2; Pl.’s 3d Mot. at 1-2.
2
Defendant states that “[u]ndersigned counsel received no bounce-back indicating that
the message was not received by Plaintiff and has had no other problems communicating with
Plaintiff via the same email address.” Def.’s Sanction Reply at 2. Defendant argues Plaintiff
failed to follow Local Rule 7(m) by not responding or conferring with Defendant before filing
the motion for sanctions. Def.’s Sanction Reply at 3-4. Local Rule 7(m) requires parties to
confer in “good faith” to “determine whether there is any opposition to the relief sought” and
“narrow the areas of disagreement.” LCvR 7(m); see Raynor v. Dist. of Columbia, No. 14-cv-
0750, 2020 WL 13603998, at *1 (D.D.C. Sept. 18, 2020). Defendant also claims that Plaintiff
failed to follow Local Rule 7(m) before filing Plaintiff’s first and second motion to compel.
Def.’s Mot. at 5. Plaintiff has been previously reminded by the Court to comply with this rule
and confer with counsel for Defendant before seeking non-dispositive relief. See Scheduling.
Order. The Court admonishes Plaintiff for failing to follow this rule and will expect compliance
in the future.
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Because Defendant has now produced the compelled discovery responses, Plaintiff’s
original argument for sanctions is moot. See G & E Real Est., Inc. v. Avison Young-Wash., D.C.,
LLC, 323 F.R.D. 67, 69 (D.D.C. 2017) (“[A]s a technical matter, [moving party] may not obtain
the sanction they seek pursuant to Rule 37(b)(2) because the application of that rule is triggered
only by the violation of a discovery order.”); Fed. R. Civ. P. 37(b)(2)(A) (applying sanctions
when a party “fails to obey an order to provide or permit discovery”). Defendant accurately
points out that there was no discovery deadline in the Court’s order that would have required a
response be sent to Plaintiff by a specific date. Def.’s Sanction Reply at 6; see generally
Tarquinii, 2023 WL 2424618. Therefore, it would not be “just” to sanction Defendant under
Rule 37(b)(2), as there has been no violation of a discovery deadline or order that caused
prejudice to the other party, prejudice to the judicial system, or caused a need to deter future
misconduct. See Bonds, 93 F.3d at 808; Mokhtar, 2014 WL 12792553, at *2; Shea,795 F.2d at
1077.
Plaintiff moved for sanctions again in her May 25 motion, repeating that Defendant failed
“to fully comply with the discovery Order issued on March 9.” Pl.’s 2d Mot. at 4. Plaintiff
based this motion “on the foregoing,” referencing her claims that Defendant produced deficient
supplemental discovery responses but provides no other explanation or analysis. See id.Plaintiff has not shown that Defendant’s discovery response has caused prejudice to herself, to
the Court, or that there is a need to deter similar future misconduct. See Shea, 795 F.2d at 1077.
Plaintiff also fails to reiterate the call for sanctions in her July 17 motion. See Pl.’s 3d Mot.
Again, it would not be “just” to sanction Defendant under Rule 37(b)(2). See Bonds, 93 F.3d at
808; Mokhtar, 2014 WL 12792553, at *2. Therefore, the motions for sanctions are denied.
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B. Plaintiff’s Motions to Compel Discovery
1. Production Request No. 5
The Court partially granted Plaintiff’s motion to compel production request No. 5 and
instructed Defendant “to search for and produce responsive records concerning [] 30 individuals
that hit on any variation of the following search terms: discriminate, harass, misconduct,
uncomfortable, mistreat, retaliate, EEO, hostile, discipline, performance, terminate, caution,
violate.” Tarquinii, 2023 WL 2424618, at *4. In her April 26 motion, Plaintiff alleges that
Defendant’s April 14 discovery response did “not even mention Production Request 5.” Pl.’s 1st
Mot. at 1-2. Defendant stated in the opposition brief to Plaintiff’s sanction motion and in
Defendant’s response to Plaintiff’s April 26 motion that Defendant was “working to provide
supplemental responses to Plaintiff’s Production Request No. 5, but that [the] supplemental
response [was] taking time.” Def.’s Reply at 5; Def.’s Sanction Reply at 6. Defendant provided
a supplemental response for production request No. 5 on May 10. See Def.’s Reply. at 3; Def.’s
2d Suppl. Resp., Def.’s Reply, Ex. 1 at 2; Pl.’s 2d Mot. at 2.
Plaintiff claims in the May 25 motion that Defendant’s response was deficient,
contending that Defendant failed to provide copies of email attachments that were referenced in
the provided emails. Pl.’s 2d Mot. at 2-3. In the July 17 motion, Plaintiff repeats this claim.
Pl.’s 3d Mot. at 2-3. Defendant alleges that Plaintiff’s claim is untrue, and that Plaintiff “omits
those purportedly missing attachments from her improper disclosure of other personnel records
on the public docket.” Def.’s Mot. at 4. Defendant references two instances in which Plaintiff
uploaded an email with a bates stamp but did not include the attachment that was referenced. Id;
Pl.’s 2d Mot. at 5, ECF No. 42-2. (referencing an attachment in the header of the email bates
stamped DON002102, which was produced under bates stamp DON002103 and is not attached
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to Plaintiff’s May 25 Motion); see also id. at 9 (referencing an attachment in the header of an
email bates stamped DON002181, which was produced under bates stamps DON002183-2186
and is not attached to Plaintiff’s May 25 Motion). Defendant also provides a list “as to where
Plaintiff can find the purportedly missing attachments.” Def.’s 3d Reply at 8-9.
Both parties provide conflicting accounts of what discovery has been provided without
enough support for the Court to identify what is accurate. 3 Defendant does not provide the
allegedly missing documents under seal to support the claim that Plaintiff has received the
referenced email attachments. See generally Def.’s Mot. Conversely, Plaintiff does not address
Defendant’s claim that she is purposefully omitting pages and potentially misleading the Court.
See Pl.’s 3d Mot. at 2-3. Plaintiff has not submitted enough evidence for the Court to evaluate
whether Defendant’s responses were deficient and, thus, fails to meet her burden. Therefore, the
Court denies Plaintiff’s motion to compel production request No. 5.
2. Production Request No. 13
The Court granted Plaintiff’s motion to compel production request No. 13, which sought
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.” Tarquinii, 2023 WL 2424618, at *6 (citing Pl.’s Disc. Req. at 3, ECF No. 31-
2). In Plaintiff’s April 26 motion, Plaintiff alleges that Defendant produced a copy of the Family
3
Defendant points to evidence that indicates that Plaintiff’s representations about what
documents have been provided to her are misleading. To the extent that Defendant’s claims are
truthful, the Court admonishes Plaintiff for attempting to deceive the Court. Rule 11(b) of the
Federal Rules of Civil Procedure allow for sanctions to be imposed on parties that present claims
that lack evidentiary support. Fed. R. Civ. P. 11(b). “[T]he Court certainly has the authority to
impose Rule 11 sanctions against a pro se plaintiff.” Hamrick v. Gottlieb, 416 F.Supp.2d 1, 4 n.
3 (D.D.C. May 2, 2005). The Court is not imposing sanctions in this instance but urges the
parties to avoid potentially purposeful inaccuracies in the future.
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Care Investigation report, but “failed to produce the accompanying exhibits referenced therein.”
Pl.’s 1st Mot. at 2. Defendant claims that the supplemental response produced to Plaintiff on
May 10 included the exhibits to the Family Care Investigation, making the request to compel the
discovery moot. Def.’s Reply at 6. Defendant “provides this second supplemental response and
refers Plaintiff to the accompanying production bates stamped DON001486-2065, containing the
underlying exhibits related to the Family Care Investigation.” See Def.’s Reply, Ex. 1 at 2-3,
ECF No. 41-1. Plaintiff does not reiterate the motion to compel production request No. 13 in
Plaintiff’s May 25 or July 17 motions, indicating to the Court that Defendant produced the
requested documents. See Pl.’s 2d Mot. Therefore, the Court denies Plaintiff’s motion to
compel as to the request for production No. 13.
3. Certification for Production Request Nos. 12, 16-24, 26-27
The Court granted Plaintiff’s motion to compel production request Nos. 12, 16-24, 26,
and 27. Tarquinii, 2023 WL 2424618, at *5, 6-7. For request No. 12, Defendant’s counsel states
they “undertook a reasonable search for records responsive to this request and found no results.”
See Pl.’s 2d Mot.at 3. For Nos. 16-24, 26 and 27, “Defendant undertook a reasonable search for
records responsive to these requests … and found no records responsive to four individuals,
Marty Carter, Vincent Endresen, Tony Taylor, and Sue Campbell.” Def.’s Suppl. Resp., Pl.’s
1st Mot., Ex. 1 at 4. Plaintiff claims that Defendant has “failed to certify the claim that he
‘undertook a reasonable search for records responsive to this request and found no results,’” and
that Defense counsel’s “statement cannot be accepted unless it is supported by declaration or
certification specifying the scape [sic] and matter of ‘reasonable search,’ signed by a qualified
individual who had performed such a search.” Pl.’s 1st Mot. at 2; Pl.’s 3d Mot. at 3-4. Despite
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the use of quotation marks, Plaintiff does not refer to a source to support this requirement. See
Def.’s Reply at 7.
Federal Rule of Civil Procedure 26(g)(1) requires that “every discovery . . . response . . .
be signed by at least one attorney of record in the attorney’s own name . . . and must state the
signer’s address, email address, and telephone number.” Fed. R. Civ. P. 26(g)(1). By signing,
the “attorney or party certifies that to the best of the person's knowledge, information, and belief
formed after a reasonable inquiry” that the response is “complete and correct as of the time it is
made.” Id. Defendant’s supplemental responses meet this certification requirement as provided
by undersigned counsel’s signature and signature block added to the last page of the
supplemental responses. See Def.’s Reply, Ex. 1 at 4. Plaintiff provides no support for her
argument and does not point to any evidence to show that Defendant’s discovery searches were
unreasonable. Accordingly, the Court will not require Defendant to provide any further
certification for production requests Nos. 12, 16-24, 26, and 27.
4. Production Requests Nos. 16-24, 26-27
Regarding Production Requests No. 16-24, 26, and 27, Plaintiff also alleges that
“Defendant failed to identify for each relevant individual race, sex, religion, and if any had
known disability and had engaged in prior protected EEO activities.” Pl.’s 2d Mot. at 4; Pl.’s 3d
Mot. at 4. Defendant claims that this is the first time that Plaintiff has raised this “purported
deficiency” and that she should have raised it before the discovery period ended. Def.’s Reply at
9; Def.’s 3d Reply at 12. However, Plaintiff has presented this request multiple times, including
in her first request for production on January 11, 2022. Pl.’s Disc. Req., Pl.’s Original Mot., Ex.
A, ECF Nos. 31, 31-2. Defendant also claims that there is “nothing in the Court’s March
Discovery Order [that] compels Defendant to identify such comparator information.” Def.’s
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Reply at 9. When the motion to compel was granted, the Court not only looked to Plaintiff’s
motion, see Pl.’s Original Mot., but to Plaintiff’s original discovery request, which included the
request for Defendant to “[i]dentify for each race, sex, religion; and if any had known disability
and/or had engaged in prior EEO activity.” See Pl.’s Disc. Req. at 3-4. There is nothing in the
Court’s March Discovery Order that specifically excludes Defendant from having to identify
such comparator information. See generally Tarquinii, 2023 WL 2424618. Defendant also
argues that the correct method of inquiry to serve such requests is through written
interrogatories. Def.’s Reply at 10. Under the same timeliness logic that Defendant uses, this
should have been an argument that Defendant presented in his response to the original motion to
compel, as the request for this information had already been made known to Defendant. See
generally Def.’s Opp’n; Pl.’s Disc. Req. at 3-4.
The Court ultimately granted Plaintiff’s motion to compel production requests Nos. 16-
24, 26, and 27, as evidence for possible “similarly situated” comparators. Tarquinii, 2023 WL
2424618, at *6. Although she “may not succeed in proving that any of these individuals [are]
similarly situated… Plaintiff [] alleged sufficient information concerning nine out of the eleven
individuals to clear the low bar of relevance.” Id. Part of proving whether the other individuals
are similarly situated can include the relevant comparator information. See 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.”). It
seems that this information concerning possible comparators will be essential in resolving the
proposed motion for summary judgment that Defendant intends to file. Therefore, the Court
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grants Plaintiff’s motion and compels Defendant to, within the next 30 days, reasonably search
for and provide relevant information regarding the race, sex, religion, known disability, and
engagement in prior protected EEO activities for the previously compelled nine individuals
included in production requests Nos. 16-24, 26, and 27. This information may be produced in
the form of a chart prepared for this purpose.
5. Admission Request No. 25
The Court granted Plaintiff’s motion to compel admission request No. 25, which sought
Defendant’s admission that “[a]t the job fair held in September 2015 the applicants submitted
their applications in electronic form.” Tarquinii, 2023 WL 2424618, at *7. In her April 26
motion, Plaintiff states that “Defendant failed to either admit or deny. A proper response must
be provided.” Pl.’s 1st Mot. at 2-3. In her May 25 and July 17 motions, Plaintiff repeats the
claim. Pl.’s 2d Mot. at 4. In the April 14 discovery response, Defendant states:
A reasonable inquiry concerning the matter in this Request has been made and the
information known or readily obtainable is insufficient to enable Defendant to
admit or deny this Request. Defendant avers that job applicants were able to
submit their application electronically or, if unable to do so, could submit
applications by hard copy.
Def.’s April Supp. Resp., Pl.’s 1st Mot., Ex. 1 at 3, ECF No. 40-2. Defendant claims that this
response is sufficient under Rule 36 because a party is allowed to explain why the request cannot
be admitted or denied. Def.’s Reply at 11.
The Court initially granted the motion to compel Defendant’s response to request No. 25
under the understanding that it would provide “limited support” to Plaintiff’s 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 discipline[].” Tarquinii, 2023 WL 2424618, at *7. Defendant does not refuse to
respond to the admission request, but provides an appropriate response and explains that
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applications could be submitted both electronically and by hard copy. See Def.’s April Supp.
Resp. at 3. The Court finds that Defendant’s response is sufficient under Rule 36 because
Defendant states in detail why it cannot be simply admitted or denied. Fed. R. Civ. P. 36(a)(4).
Accordingly, Plaintiff’s motion to compel as to admission request No. 25 is denied.
6. Admission Request No. 38
The Court granted Plaintiff’s motion to compel admission request No. 38. Tarquinii,
2023 WL 2424618, at *8. In the April 26 motion, Plaintiff claims that Defendant “failed to
respond at all” to No. 38. Pl.’s 1st Mot. at 3. Defendant shows that an amended response to No.
38 was provided to Plaintiff on May 10. Def.’s Suppl. Resp., Def.’s Reply, Ex. 1 at 3; Def.’s
Reply at 6. Plaintiff does not reiterate the motion to compel request No. 38 in Plaintiff’s May 25
or July 17 motions, again indicating to the Court that Defendant produced the requested
response. See Pl.’s 2d Mot. Therefore, Plaintiff’s motion to compel the request for admission
No. 38 is denied.
C. Defendant’s Motion to Strike
Defendant moves to strike Plaintiff’s May 25 motion as a sanction for abusive litigation
practices. See Def.’s Mot. at 4-6. Defendant makes a series of arguments alleging that Plaintiff
has acted in bad faith and for oppressive reasons. Id. Defendant first points out that Plaintiff
violated this Court’s March 1, 2022, Protective Order by publishing sensitive third-party
personnel information on the public docket, which Plaintiff alleges was “inadvertent.” Id.; Pl.’s
3d Mot. at 1. 4 Defendant also argues that Plaintiff has engaged in an abuse of motion practice by
4
After this violation was brought to the Court’s attention, Plaintiff’s 2d Motion was
placed under seal. Min. Order, July 7, 2023.
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continuing to file new motions that raise repetitive arguments. Def.’s Mot. at 6. 5 However,
Defendant fails to argue why the Court should take the “disfavored” and “drastic remedy” to
strike Plaintiff’s motion. See Jackson, 2020 WL 3791873, at *2. Defendant states that Plaintiff
acts “vexatiously and for oppressive reasons,” Def.’s Mot. at 6, but does not explain how
Plaintiff’s May 25 motion is prejudicial, scandalous, indefensible, or wholly inappropriate, see
id.; Nwachukwu, 216 F.R.D. at 178. Accordingly, the Court finds that the Defendant has failed
to demonstrate that Plaintiff’s motion should be stricken and will deny the Defendant's motion to
strike.
* * *
Defendant also asks that the Court “schedule a post discovery status conference, wherein
Defendant would respectfully request that the Court (1) affirm that all discovery in this matter is
closed, and (2) set a briefing schedule for summary judgment.” Def.’s 3d Reply at 13. As the
Court is granting in part Plaintiff’s motion to compel, discovery is not closed in this matter.
Moreover, the Court believes that a post discovery status conference is unnecessary.
Accordingly, Defendant shall file any motion for summary judgment 30 days after complying
with production of the above-ordered comparator-information (i.e., 60 days from the date of this
order).
V. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Sanctions (ECF No. 38) is DENIED,
Plaintiff’s Motions to Compel (ECF Nos. 40, 42, & 44) are GRANTED IN PART AND
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The Court recognizes that Plaintiff’s three motions to compel that state almost identical
claims are redundant and unnecessary. As addressed with Plaintiff’s failure to follow Rule 7(m),
the Court admonishes Plaintiff for filing repetitive motions and advises that Plaintiff avoid
similar actions in the future.
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DENIED IN PART, Defendant’s Motion to Strike (ECF No. 43) is DENIED, and Defendant’s
Motion for a Status Conference (ECF No. 47) is DENIED. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: September 14, 2023 RUDOLPH CONTRERAS
United States District Judge
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