The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN DOE, No. 4:19-CV-01584
Plaintiff, (Judge Brann)
v.
PENNSYLVANIA DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.
MEMORANDUM OPINION
JULY 9, 2021
I. BACKGROUND
Plaintiff moves to compel discovery responses and production of documents
in response to interrogatories and requests for production, in support of his
employment discrimination claim. Having reviewed the submissions and pertinent
discovery requests, the Court grants the motion in part and denies it in part.
II. DISCUSSION
A. Standard of Review
Federal Rule of Civil Procedure 26 entitles parties to “discovery regarding
any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case.”1 Such information “need not be admissible
in evidence to be discoverable.”2 “Rule 26(b)(1) establishes a liberal discovery
policy.”3 Parties may seek discovery under Federal Rule of Civil Procedure 34,
through requests for production. The Court’s discretion in resolving discovery
disputes is limited by the factors established by Rule 26: privilege, relevance, and
proportionality. Rule 37 gives parties a mechanism through which they may try to
compel discovery when they believe responses have been inadequate.
B. First Request for Production, # 7
Plaintiff’s first set of requests for production of documents (“First RFP”)
asks Defendants at request 7 to “produce any policy regarding gender transition,
gender identity, gender expression, and/or gender dysphoria, from the beginning of
Plaintiff’s employment, up to present, including but not limited to any revised
policies.”4 In response, Defendants produced an Equal Employment Opportunities
Manual that they claim contains a gender transition policy, as well as previous
versions of the policy.5 They claim that there are no other additional policies to
produce.6
Plaintiff’s first hurdle on this issue is that his request for production was not
limited to just gender dysphoria. He claims that the policy asks that “Defendants
2 Id.
3 Ruddy v. Polaris Indus., Inc., 2019 WL 319805 (M.D. Pa. Jan. 24, 2019) (citing Great West
Life Assurance Company v. Leviathan, 152 F.R.D. 494-97 (E.D. Pa. 1994)).
4 Doc. 36-3 at 10.
5 Doc. 38 at 9.
identify and produce any policy regarding ‘gender dysphoria, from the beginning
of Plaintiff’s employment, up to the present, including but not limited to any
revised policies.’”7 Not for the last time, Plaintiff has tried to amend the scope of
his request in his brief and omit pertinent information. In fact, the request relates
to much more than gender dysphoria. It also includes gender transition, gender
identity, and gender expression.
Defendants provided a response to a much broader question and further
assert that “the Equal Employment Opportunities Manual that they produced in
response to RFP 7 encompasses gender dysphoria.”8 Plaintiff is free to test that
theory throughout the course of this action, whether through depositions or
otherwise, but the response provided by Defendants is sufficient. Defendants
claim this is the only responsive policy. If the policy does, in fact, encompass
gender dysphoria, this issue is moot. And if it does not, then Plaintiff will have
this fact to add to his arsenal later. Plaintiff’s motion is denied on this point.
C. First Request for Production, # 14
The next discovery issue pertains to social media searches Plaintiff asked
Defendants to perform. Defendants have asserted that the searches were
conducted, and no responsive information exists. Now, Plaintiff wants the
Defendants (or perhaps their attorneys – it is unclear) to provide sworn affidavits
7 Doc. 36 at 24-25.
outlining the efforts taken and the results of those searches. Defendants have
refused to provide these affidavits. Plaintiff has not provided any legal authority
that would require Defendants to swear out affidavits to these points. As
Defendants note, Plaintiff is free to inquire into the nature and scope of the
searches during depositions. The Court will not compel Defendants to provide
sworn affidavits on this question. Their sworn testimony (should Plaintiff choose
to elicit any) will suffice. This request is denied.
D. First Request for Production, # 34
Plaintiff’s First RFP includes a request (numbered request 34) that
Defendants “produce any and all documentation sufficient to identify any
complaints of discrimination or harassment, on any basis, whether formal or
informal, lodged against any of the individual defendants named in the caption of
the lawsuit . . . and any other employee identified in Plaintiff’s complaint; within
the last ten (10) years.”9
This request is overbroad. At the outset, I note that Plaintiff again misstates
what is actually sought by this request. In briefing, Plaintiff attempts to convince
the Court that he only seeks “complaints of LGBTQ+ discrimination, LGBTQ+
harassment, sexual harassment, and/or retaliation, by any former or current
employee, inmate, and/or other person, at the Pennsylvania Department of
Corrections.”10 But as the First RFP plainly states, the scope of the request is
much broader than Plaintiff would have the Court believe. It is not limited to
claims of harassment against any LGBTQ+ individuals. Instead, the request would
also include claims of racial or religious discrimination, for example. Those are
obviously not relevant to this action, and Plaintiff cannot overcome this hurdle.
Claims of harassments against LGBTQ+ employees would clearly be
relevant to this litigation, as those individuals would be similarly situated to
Plaintiff. Defendants could not argue otherwise. But at the same time, Rule 26
does not give Plaintiff carte blanche to investigate claims having no relevance to
his own. Therefore, the Court limits the request only to complaints of LGBTQ+
discrimination, harassment (including sexual harassment), or retaliation. Next, the
Court limits the scope of complainants to Pennsylvania Department of Corrections
employees, at least in the first instance. Defendants will produce documents
responsive to this narrower set of information. Plaintiff can then evaluate the
documents produced, and if he concludes that he needs the additional discovery
which would include complaints by inmates, the Court will revisit the question.
If Plaintiff comes back for more discovery on this issue, he should be
prepared to explain why the additional set of documents would not be
disproportionate to the needs of the case or otherwise violative of Rule 26. His
failure to submit any reply brief that would have challenged Defendants’
arguments was fatal to his motion on this point. Plaintiff’s request is granted in
part and denied in part, without prejudice.
E. First Interrogatory, # 4
Plaintiff’s first set of interrogatories includes the following: “Identify each
and every one of your alleged legitimate, non-discriminatory reasons for requesting
Plaintiff identify a date by which he would transition from female to male – when
Defendants’ employer sponsored health insurance excluded gender confirmation
surgery (“GCS”), gender-affirming care, and/or any other transition-related
services – including any all of the factual bases for same.”11 Defendants claim that
they have provided complete answers to that interrogatory. Plaintiff would like
more detail to the response, pointing to cases illustrating that to satisfy the second
step of the McDonnell-Douglas burden-shifting framework, the Defendants must
proffer a legitimate non-discriminatory reason for their actions.12
But those cases largely illustrate that a defendant may well fail to meet its
own burden if it fails to provide enough specificity to explain its decisions. That
does not necessarily mean that a party needs to provide detail where it may not
exist. That risk is one that these Defendants have taken for themselves, and it may
11 Doc. 36-2 at 8.
or may not turn out to be a wise decision.13 Only time will tell. The Court may
find that their rationale is specific enough to meet their burden, or it may conclude
that they have failed and rule accordingly. That question is not before the Court
now, and Plaintiff’s motion to compel additional responses on Interrogatory 4 is
denied.
F. First Interrogatory, # 5
The first set of interrogatories also asks Defendants: “Identify whether
Plaintiff requested a reasonable accommodation due to gender dysphoria (‘GD’),
and whether you provided the same. If you did not, please explain why you did not
provide Plaintiff a reasonable accommodation.”14 Defendants responded that they
“do not have a record of any written request ever being made by Plaintiff for a
reasonable accommodation due to gender dysphoria.”15 Plaintiffs seeks a complete
response to his interrogatory: namely, whether a verbal request for accommodation
was ever made. The Court will order Defendants to answer that question.
Defendants’ argument is, put simply, strained. They claim that the
interrogatory is improper on its face because “it presumes that Plaintiff is a
qualified person with a disability under the Rehabilitation Act and the Americans
with Disabilities Act (‘ADA’) before the Third Circuit or this Court has decided
13 The Court also notes that Defendants have represented that they have provided all the detail
they can at this point. See Doc. 38 at 8 (“But there is no additional clarity or specificity that
Defendants can provide.”).
14 Doc. 36-2 at 9.
the issue.”16 Fair enough, but that has little bearing on their response to the
question. This same issue did not stop them from responding before. As noted,
Defendants represented that no written request was ever made. A discerning party
might suspect that this answer was carefully worded and qualified. Plaintiff simply
wants to know if a verbal request was ever made, which would be a complete
answer to the interrogatory. While the Court has the authority to defer answer on
this question, I see no reason to. Defendants shall supplement their response to
Interrogatory 5.
G. Discovery Related to Training
There are several discovery requests pertaining to training received by the
Defendants. First RFP 16 asks Defendants to “produce documentation sufficient to
identify that Defendants’ employees . . . were provided training on
nondiscrimination, anti-harassment, and anti-retaliation, during the subject
timeframe.”17 Defendants’ response to the First RFP asserts that responsive
information would be produced.18 Defendants did not address this issue in their
brief in opposition to the motion to compel, so the Court grants this request as
unopposed. Defendants shall produce documents responsive to First RFP 16, as
they have agreed to.
16 Doc. 38 at 6-7.
17 Doc. 36-3 at 14.
Next, Interrogatory 12 asks Defendants to identify “what training that
employees, including but not limited to corrections officers at SCI-Coal Township,
received regarding non-discrimination based on sex, sexual orientation, gender
identity, and gender expression, anti-harassment based on the same, and/or
antiretaliation, and the date (MM/DD/YYYY) that the training was given, within
the last ten (10) years.”19 Defendants again did not address this interrogatory in
briefing, so the motion is deemed unopposed as to that issue. Defendants shall
produce documents responsive to Interrogatory 12.
Plaintiff’s second set of requests for production of documents (“Second
RFP”) includes a request that Defendants “produce the course materials for every
training course starred by you in your production of documents.”20 Defendants
claim that they have produced all responsive materials to the Second RFP.
Plaintiff has not submitted a reply brief to dispute this representation, and therefore
the Court deems the point moot to that question.
III. CONCLUSION
Plaintiff’s motion to compel discovery is granted in part and denied in part,
as follows:
The motion to compel is granted as to: (1) Interrogatory # 5; (2) First RFP #
16; and (3) Interrogatory # 12.
19 Doc. 36-4 at 6.
The motion to compel is denied as to: (1) First RFP # 7; (2) First RFP # 14;
(3) Interrogatory # 4; and (4) Second RFP # 2.
The motion to compel is granted in part and denied in part as to First RFP #
34.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge