The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CAVISTON,
Plaintiff, CIVIL ACTION NO. 1:19-cv-01409
Vv. (JONES, C.J.)
JOHNSON CONTROLS, INC. d/b/a Witglt
JOHNSON CONTROLS (or “JCI”), . JUN 3 RE
Defendant. PER MNS 20
RR a
MEMORANDUM
This age discrimination case is before us ona discovery dispute
(Doc. 19) which has been referred to us for resolution. (Doc. 20; Doc. 21).
I. STATEMENT OF Facts
In his amended complaint, the plaintiff, Robert Caviston, alleges _
discrimination under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621 et seq., and a similar state law claim under the
Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. Prior to
filing his complaint, the plaintiff exhausted his administrative remedies
before the Equal Employment Opportunity Commission and the
Pennsylvania Human Relations Commission.
In his amended complaint, the plaintiff has alleged that he is a 57-
year-old male who worked for the defendant and its predecessor for
approximately 23 years until his allegedly unlawful termination on April
26, 2019. The defendant, Johnson Controls, markets automotive systems
and building controls, including seating and interior systems, HVAC
equipment, building automation, security, fire detection, batteries, and
other related services. At the time of his termination, the plaintiff was
working as a fire and security account executive.
The plaintiff has alleged that, during the last few years of his
employment with the defendant, the defendant's management began a
campaign to terminate older employees, clearly favoring younger
employees and exhibiting discriminatory animus toward the plaintiff and
other older employees. As examples of this conduct, the plaintiff has
alleged that, beginning in late 2016, the defendant’s management began
to terminate several older employees and replace them with substantially
younger new hires under the alleged pretext of reductions in force or
layoffs. In addition, the defendant's management treated the plaintiff
and other older co-workers in a_ derogatory, demeaning,
condescending manner; it selectively enforced policies against the
plaintiff and other older employees; and it gave unreasonably high and
unachievable quotas to the plaintiff and other older employees. This □
treatment was unlike the ‘treatment of younger co-workers of the _
defendant. In addition, one of the members of the management team,
market director Joseph Emrick, referred to the plaintiff as a “dinosaur” □
and informed the plaintiff that “he was slowing down.”
Emrick, along with sales manager Ken Bouge, stripped the plaintiff
and other older employees of key accounts and/or responsibilities and □
gave them to younger current employees and new hires. Emrick allegedly
informed the plaintiff that the “new company culture was not a fit for
him” and the defendant's management routinely stated at regional
meetings that the defendant wanted to “refresh the sales force.” Finally,
Bouge showed a clear preference for younger employees and regularly
screamed, criticized, and attempted to physically intimidate the plaintiff
during at least one meeting.
As a result of the discriminatory and disparate treatment, the
plaintiff expressed several concerns of discriminatory treatment on
account of his age to Emrich and security sales manager Randy Gleit,
who also supervised the plaintiff. Those expressed concerns included
informing them that the accounts/business attributable to the plaintiff
a.
were given to substantially younger employees to manage. Despite those □ .
complaints of discrimination, the defendant allegedly failed to
investigate or resolve those issues and the plaintiff was subjected to
progressive hostility and animosity by defendant's management because
of his age or his complaints of age discrimination, which included the
following: treating the plaintiff ina rude and demeaning manner; Emrick
and Bouge scrutinizing and criticizing the plaintiffs work; Bouge and
service manager Rick Hartinger refusing to provide the plaintiff with the
demonstration products and support that he needed for a multi-million-
dollar account; and assigning a new, substantially younger employee to
assist the plaintiff with his account while advising the plaintiff that he
not permitted to help or train the younger employee, yet still
criticizing the plaintiff and holding him accountable when customers
complained that the younger employee made mistakes. .
On April 26, 2019, in close proximity to his complaints of age
discrimination, the plaintiff was abruptly informed by Gleit, Emrich, and
a human resource representative that he had been selected by the
defendant for layoff (i.e., termination without any comparable alternative
position offered). The plaintiff further alleged that he was selected for
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layoff because of his age, despite the fact that: the defendant continually □
hired younger and additional sales people; the plaintiff was more skilled
and had better relationships than similarly situated employees retained;
the plaintiff was experienced and had proven capable of selling in two
separate lines of product for the defendant (fire or security) while other.
younger sales people retained by the defendant were only capable or
experienced in selling in one line of business; and the plaintiff was
terminated in a time-frame when he was engaging in substantial sales
and would have accomplished his current sales target.
Following the plaintiffs termination, he was offered an unsolicited
severance pay package if he agreed to waive legal claims against the
defendant, including those for age discrimination. The plaintiff did not
sign the proposed severance agreement. Finally, the plaintiff has alleged
that he believes that he was terminated from his position with the.
defendant because of his advanced age and his complaints of age □
discrimination.
Following the plaintiff's separation from employment, the plaintiff
filed a charge of discrimination with the EEOC asserting age
discrimination and retaliation. After he filed his claims in this court, the
defendant yefused to rehire him for certain positions despite being
qualified. In addition to failing to give the plaintiff's applications □
meaningful review, the defendant has provided negative information to
prospective employers in an effort to interfere with the plaintit? s current
job search. oe □
: On the basis of these allegations, the plaintiff filed his complaint □□
and subsequent amended complaint for age discrimination, hostile work
environment, and retaliation under the ADEA, and for post-employment
retaliation and failure to hire, also under the AD EA. .
On April 3, 2020, the defendant filed its answer to the amended
complaint with affirmative defenses. (Doc. 31). In its answer, the
defendant denied the allegations that it discriminated ok retaliated
against the plaintiff in any respect. In addition, the defendant asserts.
that the plaintiff s age played no role in the termination decision, J □
Thereafter, a discovery dispute arose regarding answers to. □□
plaintiffs interrogatories and ‘responses to plaintiff : requests for. □
production of documents. This discovery dispute was referred to the
~ undersigned United States magistrate judge for resolution. We conducted
a telephonic conference on March 10, 2020, wherein counsel agreed to
meet to attempt to resolve the issues and report back to the court. After
being notified by counsel that the parties have worked through many of
the disputes with some success, a telephone conference was requested
_ discuss the ‘court’s preferences. We conducted an : on-the-record □
conference on April 24, 2020, with counsel where we heard argument
regarding the parties’ respective positions. We directed counsel to submit
letter-briefs on the outstanding disputes. We have docketed those
submissions. (Doc. 40; Doc. AL: Doe. 42: Doc. 43), Counsel's submissions □
have informed the court that the dispute is limited to Interrogatory No.
6, Interrogatory No. 4, Document Request No. 12, Document Request No.
14, and Document Request No. 19. We have construed the plaintiff 5
initial letter-brief (Doc. 40) as a motion to compel and the defendant’s
responses as objections to the requested discovery.
If, . LEGAL STANDARD : Doe
The federal courts have broad discretion to manage discovery,
Sempier v. Johnson & Higgins, 45 F.3d 724, 734 (3d Cir. 1995), and □□□
federal rules have long permitted broad and liberal discovery. Macy's,
193 F.3d 766, 777 (3d Cir.1999). Pursuant to Rule 26(b)(1), parties may
obtain discovery regarding “any nonprivileged matter that is relevant to _
□ , 7 .
any party’s claim or defense and proportional to the needs of the case....
Information within this scope of discovery need not be admissible in
evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Further, the federal
rules’ relevancy requirement is to be construed broadly, and material is
relevant if it bears on, or reasonably could bear on, an issue that is or.
maybe involved in the litigation. Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 350 (1978).
Rule 26 establishes a liberal discovery policy. Discovery
is generally permitted of any items that are relevant or □
may lead to the discovery of relevant information.
Moreover, discovery need not be confined to items of
admissible evidence but may encompass that which
appears reasonably calculated to lead to the discovery
admissible evidence.
Clemens v. N.Y. Cent. Mut. Fire Ins. Co., 300 F.R.D. 225, 226 (M.D. Pa.
2014) (citations omitted). When the Court is presented with a motion to □
compel discovery, oe □□
[t]he burden is on the objecting party to demonstrate in
specific terms why a discovery request is improper. The □
party objecting to discovery must show that the |
requested materials do not fall within the broad scope of
relevance or else are of such marginal relevance that the :
potential harm occasioned by discovery would outweigh
the ordinary presumption in favor of broad disclosure. □
at 227 (citations, internal quotation marks, and alterations omitted).
. Q . . . □
TIL Discussion oe □□□
In order to establish a prima facie case of age discrimination, a
plaintiff must show that he: @) was over forty years old; (2) was qualified
the position in question; (8) suffered:an adverse employment decision; _—
and (4). he replaced by a sufficiently younger person to permit an
inference of age discrimination. Brewer v. Quaker State Oil Ref Corp., 72
F.3d 326, 330 (3d Cir. 1995). Where an employee is terminated during a
reduction in force (“RIF”), the plaintiff must show “that the employer
retained a sufficiently younger similarly situated employee.” Monaco v
Gen. Assurance Co., 359 F.3d 296, 301 (3d Cir. 2004); Anderson v.
Consol. Rail Corp., 297 F.3d 242, 250 (ad Cir. 2002). Otherwise, the
ADEA would operate to ‘guarantee: “a protected employee a job at the
expense of a sufficiently younger employee.” Anderson, 297 F.3d at 250.»
In employment discrimination cases, itis undisputed that discovery
directed to similarly situated employees is relevant. Salamone v. Carter’s
Retail, Inc. No. 09-5856 (GEB), 2011 WL 1458063, at *3 (D.NJ. Apr. 14
2011); see also Davis v. Cleary, No. 09-0925 (AED), 201 1 WL 4435697, at
#5 D.N.J. Sept. 22, 2010). Indeed, discovery in these cases is broad
because plaintiffs often rely on indirect ‘or circumstantial. proof of
_. discrimination. Salamone, 2011 WL 1458063, at *3. There is no general
rule to determine who is or who is not a similarly situated employee.
Instead, “case specific definitions” aire used. Id. at *3. The determination □□
of whether employees are similarly situated takes into account factors
such as the employees job responsibilities, the supervisors and decision-
makers, aind ‘the Shiaes of the misconduct engaged in. Wilcher □□ □ □
Postmaster Gen., A441 Fed. Appx 879, 882 (3rd Cir. 2011). Pursuant to.
Fed. R. Civ. P. 26(b), plaintiff is entitled to any nonprivileged matter
relevant to his claim. “Courts have construed this rule liberally, creating
a broad vista for discovery.” EE O.C. .v: Princeton. Healthcare Sys., No.
10-4126 (JAP), 2011 WL 2148660, at *11 (D.NJ. May 31, 2011) (citation
omitted). □ eG □
The plaintiff maintains that the requests at issue can be separated
into two distinct categories for purposes of resolution: Interrogatory No.
7 and Document Request No. 12 are “comparator requests”: and □
Interrogatory No. 6 and Document Request No. 19 seek information
respecting the age composition of the defendant's employees (including
new hires and the aive composition of the workplace during the period at
issue), with Document Request No. 14 servitig as a “mirror” request for
ae wk
documents underlying Interrogatory No. 6. ‘Plaintiffs counsel has
amended the original discovery requests to seek information and
documents only within the “Chesapeake region” of Johnson Controls. We
will address them seriatim. □□
A, Interrogatory No. 6-N ew Hire Information © .
As originally stated, Interrogatory No. 6 sought basic information
on the full roster of Johnson Controls employees. During the meet-and- □
confer process, the plaintiff has narrowed this interrogatory to seek this
information only for those employees newly hired within the three-year
period preceding his termination. □ .
Interrogatory No. 6 states: _
Please provide a full list of employees on Defendants’
payroll within the last three (3) years including:
- employee name;
ot dates of employment; .
= age; woe oe
Se tbe positions held; and □□
- compensation paid to this employee.
The defendant objected to this interrogatory as overbroad, unduly
burdensome, and not proportional to the needs of the case, and on the
ay.
grounds that it sought confidential, private information about hori-party
employees.
Through the meet-and-confer process, the plaintiff has. narrowed
the scope of this interrogatory to newly hired employees and to the □ □
company’s. Chesapeake region, which encompasses ‘parts □□
Pennsylvania, Delaware, Maryland, and Virginia. He has also clarified
that the three-year period for which he seeks thie information is May 1,
2017, through May 1, 2020. oe
The defendant suggests that the scope of this interrogatory should
be further narrowed to ‘employees newly. hired after the plaintiff □ □
termination because employees hired before that date could not have
replaced him. But, is the plaintiff has noted in his motion papers: in a
reduction-in-force case, a plaintiff need not show that he was replaced by
younger worker, but merely that “the employer retained ‘unprotected
workers.” Showalter v. Univ. of Pittsburgh Med. Cir., 190 F.3d 231, 234 □
(3d Cir. 1999). a □
We find this interrogatory, ss narrowed by the plaintiff to those
employees newly hired within the Chesapeake region between May I,
2017, and May 1, 2020, io be reasonably calculated to lead to admissible □
evidence and proportional to the needs of this case, provided it is further
narrowed to encompass only those newly hired employees within the
sales realm. a
Accordingly, the defendant’s objection to” Interrogatory No. 6 is
SUSTAINED in part and OVERRULED in part. The defendant shall
serve an answer to the interrogatory, limited to employees newly hired □
to sales positions within the Chesapeake region of Johnson. Controls
between May 1, 2017, and May 1, 2020.
B. Interrogatory No. 7 - Comparator Information □□□
As originally stated, Interrogatory No. 7. sought disciplinary |
information for the plaintiff Ss peers over a five-year period. During the
meet-and-confer process, the plaintiff has narrowed this interrogatory to
seek this information for “the sixteen-month period immediately □
preceding his termination. oe
Interrogatory No. 7 states; a
Plaintiff(s) is entitled to comparator information to
_ determine if there was disparate treatment with respect :
to discipline and/or termination of Plaintiff(s), and to
that end, please identify: .
A. The name of every individual, within the last 5 years □□
at Plaintiff(s) work location, who was given verbal or □
written admonishment, ‘warning, reprimand(s) or —
218.0)
discipline for any of the same reasons Defendant(s)
contend resulted in or contributed to Plaintiff(s) □
termination from employment with Defendant(s);
B. The name of every individual, within the last 5 years |
who worked under any of the same management as
Plaintiff(s), who was given verbal or written |
admonishment, warning, reprimand(s) or discipline
for any of the same reasons Defendant(s) contend
resulted in or contributed to Plaintiff(s) termination
from employment with Defendant(s);
_ C. As to information provided in response to subparts
(A) and (B) herein and for each individual identified, _
please specifically identify: (1) the date of each verbal □
or written admonishment, discipline, reprimand or
warning; (2) the reason(s) for such admonishment, □
_ discipline, reprimand or warning being given to the
employee (or former employee); (3) the manager who □
gave the verbal or written warning, admonishment,
reprimand or discipline to the employee (or former
employee); and (4) the outcome of the warning,
discipline, reprimand or admonishment (i.e. whether
. it was a first step discipline, whether it resulted in
termination, suspension or other penalties).
The defendant objected to this interrogatory as vague, ambiguous,
overbroad, unduly burdensome, and not proportional to the needs of the _
ease, and on the grounds that it sought confidential, private information __
about non-party employees.
Through the meet-and-confer process, the plaintiff has narrowed
the scope of this interrogatory to employees working in a sales capacity,
rather than all.employees. He has also clarified that the disciplinary □
□ _14-
information he ‘seeks includes ‘sales performance reviews, wiitien □
warnings, or performance improvement plans (PIPS), and that the “work
location” referenced is the company’s Chesapeake tegion, which
encompasses parts of Pennsylvania, Delaware, Maryland, and Virginia.
_ He has also clarified that the period for which he seeks this information
is January 2018 through April 2019. ee
The defendant argues that disciplinary information regarding other
employees is not relevant because the plaintiff wae not terminated for — =
misconduct, But material produced in “discovery indicates ‘that
disciplinary information was among several factors ‘considered by
decision-makers in determining which employees within the Chesapeake □
region were to be released as part of the RIF process, The disciplinary
history of other employees considered for reléase<opiecially those who :
: were retained—is clearly relevant under the circumstances presented. □□
We find this interrogatory, as narrowed by the plaintiff to those □□
employees working in a sales capacity within the Chesapeake region
between J anuary 2018 and April 2019-—and subject to'the clarification
ood The defendant prefers to construe. “work location” as its New
Cumberland branch office only. :
that the responsive “discipline” information requested in the —
interrogatory includes sales performance reviews, written warnings, or
performance improvement plans (PIPS)—to be reasonably calculated to
lead to admissible evidence and proportional to the needs of thiscase. □
Accordingly, the defendant’s objection to Interrogatory No. 6 is
SUSTAINED in part and OVERRULED in part. The defendant shall
serve an answer to the interrogatory, limited to employees working □□
sales positions within the Chesapeake region of Johnson Controls
between January 2018 and April 2019.
Cc Document Request No. 12 — Sales Performance Data
As originally stated, Document Request No. 12 sought. sales
performance information for the plaintiff's peers over a five-year period.
During the meet-and-confer process, the plaintiff has narrowed this
document request to seek this information for the sixteen-month period
immediately preceding his termination. □
Document Request No. 12 states:
Please produce the following documents respecting
Defendant’s sales force: □
a) any employee lists, internal documents, memos or
organizational charts reflecting the names of the □
sales employees within Plaintiff's Bran[ch] Office
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for the last five (5) years of his employment
(including any updated charts since. Plaintiffs
separation);
b) all spreadsheets, charts, PowerPoints or other
internal. documents used. to monitor sales
performance, whether that be department-wide
gales, sales based strictly on the fire, security, □
HVAC side (or all three), or monitoring of based □
each individual employee’s sales-performance.
The defendant objected to this document request as vague,
ambiguous, overbroad, unduly burdensome, and not proportional to the
needs of the case, and on the grounds that it sought confidential, private
information about non-party employees.
Through the meet-and-confer process, the plaintiff has narrowed
the period for which he seeks this information to J anuary 2018 through
April 2019. He has also clarified that he seeks information concerning
sales performance throughout the Chesapeake region, rather than just
the New Cumberland branch office only.
We find this document request, as narrowed by the plaintiff to those
sales employees within the Chesapeake region between January 2018
April 2019, to be reasonably calculated to lead to admissible evidence
and proportional to the needs of this case, provided it is further narrowed _
encompass only those documents or electronically stored information
_17.
that were reasonably available to relevant decision-makers at the time of
the April 2019 reduction-in-force decision-making process.
Accordingly, the defendant’s objection to Document Request No. 12
is SUSTAINED in part and OVERRULED in part. The defendant
shall produce documents responsive to this request, limited to materials
concerning sales employees within the Chesapeake region of Johnson
Controls between January 2018 and April 2019, and further limited to
materials reasonably available to relevant decision-makers at the time of
April 2019 reduction-in-force decision-making process.
D. Document Request No. 14 - New Hire Documentation
This document request is apparently intended to “mirror”
Interrogatory No. 6 (as narrowed to new hires), and thus the parties both □
regard the discovery dispute concerning this document request to be
coextensive with the related interrogatory.
Document Request No. 14 states: □
Please produce the following personnel documents for
any individuals hired for any sales based positions
within two (2) years prior to Plaintiff(s) termination
from employment and for 1 year following Plaintiff(s)
termination from employment: oe
a) Copies of each individual’s resume(s); □
b) Copies of each individuals job application(s); □
18.
c) Copies of all information reflecting the hiring
date(s), compensation offer(s), position for which
. the employee was hired, the group and/or
management the employee was to work within,
‘and the physical location wherein the individual
was considered based; and
d) documentation reflecting the individual’s age.
The defendant objected to this document request as vague,
- ambiguous, overbroad, unduly burdensome, and not proportional tothe
needs of the case, and on the grounds that it sought confidential, private □
information about non-party employees. .
As with the companion interrogatory above, the plaintiff has
narrowed the scope of this document. request to newly hired employees
and to the company’s Chesapeake region, and he has clarified that the
three-year period. for which he seeks this information is May 1, 2017,
through May 1, 2020. .
For. the reasons stated above with respect to Interrogatory No. 6,
we find this interrogatory, as narrowed by the plaintiff, to be reasonably
calculated to lead to admissible evidence and proportional to the needs of □ |
this case, provided it is further narrowed to encompass only those □
.. documents concerning newly hired employees within the sales realm.
Accordingly, the defendant's objection to Document Request No. 14
19.
is SUSTAINED in part and OVERRULED in part. The defendant
shall produce documents responsive to this request, limited to materials
concerning employees newly hired to sales positions within the.
Chesapeake region of Johnson Controls between May 1, 2017, and May
1, 2020.
E. Document Request No. 19 - Age Composition Data
As originally stated, Document Request No. 19 sought age
composition information for the plaintiffs peers over a three-year period.
During the meet-and-confer process, the plaintiff has narrowed this. _
document request to seek this information for the Chesapeake region
only. |
Document Request No. 19 states:
Please provide the following documents (stored in
hardcopy or electronically) for each and every person
who worked under any of the same managers who
supervised Plaintiff(s) and who worked within the same
or similar positions as Plaintiff(s) for the last three (8)
years: .
a) Any and. all company documents showing the age
of each individual;
b) Any and all documents provided by each
individual as a self[-]disclosure or sections of |
employment application materials identifying age
by each such individual; and
. . . 20
c) Every document prepared for or filed with any
. ‘state or federal agency identifying departmental □
or companywide age data, including but not
limited to. KEO-1 forms for the last full three (8)
years. . . . □
The defendant objected to this document. request as vague,
ambiguous, overbroad, unduly burdensome, and not proportional tothe □
needs of the case, and on the grounds that it. sought confidential, private
information about non-party employees. □□
In response to this request, the defendant produced electronically
stored information, characterized as a “RIF Tracker” and bates-labeled
ESI 1862, listing nearly 200 employees who were considered for the RIF,
identifying which were selected for termination and which were
-retained.2 For most employees considered, this electronic document
included their ages.3 In producing this information, the defendant
contends that it has substantially complied with Document Request No.
2 The plaintiff has attached a copy of ESI 1862 to its reply letter-
brief, but we have omitted the attachment from the copy docketed in _
CM/ECF (Doc. 42) because it contains the personal information of non-
party individuals.
3 The defendant has noted in the margin of its letter-brief that it
will supplement with additional documents if the plaintiff identifies any
similarly situated employees within the sales team ofthe HVAC Domain
whose. age is not included. oe □
. . 97.
19.
The plaintiff argues that the creation of the RIF Tracker in
connection with layoffs suggests that the defendant could readily create □
and produce some other, similar but apparently more comprehensive
report in response to the plaintiff's document request. But “a party need
only produce existing documents, and not create documents, in response
to a Rule 34 document request.” Harris v. Advance America Cash
Advance Ctrs., Inc., 288 F.R.D. 170, 173 (6.D. Ohio 2012).
Based on the record before us, we find the defendant’s production
of the “RIF Tracker” (ESI 1862) to be responsive to Document Request
No. 19 and sufficient to discharge its obligation to respond to this
discovery request, subject to its obligation to supplement in accordance
with Rule 26(e) of the Federal Rules of Civil Procedure.
Accordingly, the defendant’s objection to Document Request No. 19
is SUSTAINED.
IV. CONCLUSION
For the foregoing reasons, the defendant’s objections to the disputed
discovery requests shall be sustained in part and overruled in part, and
the plaintiff s motion to compel (Doc. 40) shall be GRANTED in part
~99.
and DENIED in part.
An appropriate order follows.
Dated: June __23 , 2020 tag f 3 □
. OSE#PH F. SAPORITY, JR.
United States Magistrate Judge
on.