Lockett v. Target Corp.
Lockett v. Target Corp.
2021 WL 6498200 (D. Conn. 2021)
May 19, 2021

Richardson, Robert A.,  United States Magistrate Judge

Medical Records
Failure to Produce
Proportionality
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Summary
The Court did not make any specific rulings regarding the ESI, but noted that the plaintiff could ask the Court to revisit Request No. 3 if evidence of written complaints was revealed in discovery.
BERNADETTE LOCKETT, Plaintiff,
v.
TARGET CORP., Defendant
CASE NO. 3:20-cv-191(JAM)
United States District Court, D. Connecticut
Filed May 19, 2021

Counsel

Bernadette Taylor Lockett, Bristol, CT, Pro Se.
John Gerard Stretton, Nicole S. Mule, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Stamford, CT, for Defendant.
Richardson, Robert A., United States Magistrate Judge

ORDER ON DISCOVERY MOTIONS

*1 Pending before the Court are motions that relate to discovery disputes between pro se plaintiff Bernadette Lockett (“plaintiff”) and defendant Target Corporation (“defendant” or “Target”). On February 11, 2021, defendant filed a motion to compel discovery responses from plaintiff. (Dkt. #47.) On February 19, 2021, plaintiff filed a motion to compel discovery responses from defendant. (Dkt. #50.) The Honorable Jeffrey A. Meyer referred the pending discovery motions to the undersigned. (Dkt. #48, #51.)
 
The Court held a telephonic hearing on April 13, 2021. (Dkt. #58.) During the hearing, the Court ordered the parties to provide an update, within three weeks, that identified the status of discovery and any remaining disputes.[1] Each party's status update contains a request for this Court to compel further discovery.
 
For the reasons articulated below, the Court: GRANTS in part and DENIES in part defendant's requests (Dkt. #60); and DENIES, as moot, plaintiff's requests (Dkt. #61).
 
I. Background
Plaintiff, an African American female, brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that defendant, her former employer, discriminated against her based on her race. (See Dkt. #20, Am. Compl.)
 
Plaintiff worked at defendant's Waterbury, Connecticut location from 2006-2008 and 2016-2017. (Id. ¶¶ 3, 19, 40.) Plaintiff alleges that in February of 2017, Team Leaders Courtney Hill and Fil Nunez offered plaintiff the Receiver position; once plaintiff accepted, Hill and Nunez told her not to tell anyone else about the promotion because the store was waiting for funding to train plaintiff. (Id. ¶¶ 21–22.) In May of 2017, John Sanders, a Caucasian employee, informed others that Nunez gave Sanders the Receiver position after Sanders threatened to quit. (Id. ¶ 28.) In August of 2017, plaintiff saw Sanders working as the Receiver. (Id. ¶ 29.) Plaintiff asked Hill about her own promotion and told Hill that she believed she was being discriminated against. (Id.)
 
*2 Plaintiff alleges that Sanders was not eligible for a promotion because he violated the “no call no show” policy in May of 2017 and per company policy would not be eligible for a promotion for the following six months. (Id. ¶ 31.) Plaintiff alleges that her work hours decreased after she expressed her belief that she was being discriminated against, and Sanders placed a “spook” sign in plaintiff's area of work. (Id. ¶¶ 32–33.) Plaintiff alleges that she heard Hill making racist comments, Hill favored Caucasian employees, and Hill saw Sanders socially. (Id. ¶ 34.) Plaintiff alleges that store manager Kyle Wilhelmy embarrassed and humiliated an African American female employee for wearing black pants while other Target employees were allowed to wear black or khaki pants. (Id. ¶ 35.) Plaintiff alleges that other employees complained about the demeaning music that Sanders played. (Id. ¶ 37.)
 
On or around September 20, 2017, plaintiff gave notice that she intended to quit. (Id. ¶ 38.) In October of 2017, more than two weeks after she resigned, plaintiff filed a disparate treatment complaint with defendant's corporate office. (Id. ¶ 39.)
 
II. Legal Standard
Under Rule 26 of the Federal Rules of Civil Procedure,
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). The party seeking discovery bears “the burden of demonstrating relevance[.]” Mason Tenders Dist. Council of Greater New York v. Phase Constr. Servs., Inc., 318 F.R.D. 28, 36 (S.D.N.Y. 2016).[2]
 
III. Discussion
For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the requests within defendant's status update. The Court DENIES, as moot, the requests within plaintiff's status update.
 
A. Defendant's Discovery Requests
Defendant requests that the Court: (i) compel plaintiff to produce all documents relating to her claim for damages; (ii) compel plaintiff to sign an Authorization for Release of Employment Records; (iii) compel plaintiff to sign an Authorization for Release of Unemployment Compensation Records; (iv) compel plaintiff to sign an Authorization for Release of Medical Records from plaintiff's primary care physician; and (v) enter amended deadlines for the filing of dispositive motions. (Dkt. #60 at 4–5.) The Court rules on each request as follows.
 
i. The production of all documents relating to plaintiff's claim for damages.
Defendant requests that the Court “compel Plaintiff to immediately produce all documents relating to her claim for damages including back pay; emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation; punitive damages; and front pay pursuant to Request No. 39.” (Dkt. #60 at 5.)
 
The Court grants defendant's request, except to the extent it seeks the production of medical records. Since plaintiff claims garden variety emotional distress damages, her medical history is not relevant. See Feltenstein v. City of New Rochelle, No. 14-cv-5434 (NSR), 2018 WL 3752874, at *4 (S.D.N.Y. Aug. 8, 2018).
 
ii. Authorization for Release of Employment Records.
Defendant requests that the Court “compel Lockett to sign an Authorization for Release of Employment Records for: Kelly Services, Bristol Prep Academy, Naugatuck Community College, or any other employer she received income from since the termination of her employment at Target.” (Dkt. #60 at 5.) Although plaintiff provided defendant with a W-2 from Naugatuck Community College, (Dkt. #61 at 2), defendant stated that it has not received W-2s from plaintiff's other places of employment after she resigned from Target. (Dkt. #60 at 3.) Defendant further asserts that plaintiff has had over a year to provide this information but has failed to produce it. (Dkt. #60 at 2).
 
*3 Recognizing “that the authorization process is markedly more efficient[,]” Weber v. Fujifilm Med. Sys. U.S.A., Inc., No. 3:10-cv-401 (JBA), 2011 WL 674026, at *1 (D. Conn. Feb. 17, 2011), the Court grants defendant's request and orders plaintiff to sign an authorization for the release of her employment records. This authorization will facilitate the production of information that is relevant to plaintiff's claim for damages and her duty to mitigate.
 
iii. Authorization for Release of Unemployment Compensation Records.
Defendant requests that the Court “compel Lockett to sign an Authorization for Release of Unemployment Compensation Records from the Connecticut Department of Labor.” (Dkt. #60 at 5.)
 
The Court grants defendant's request and orders plaintiff to sign an authorization for the release of her unemployment compensation records. However, the release shall be limited to any unemployment compensation that plaintiff received following the termination of her employment with defendant, which is the period relevant to this litigation.
 
iv. Authorization for Release of Medical Records.
Defendant requests that the Court “compel Lockett to sign an Authorization for Release of Medical Records from Dr. Jacqueline Satchell, Plaintiff's primary care physician.” (Dkt. #60 at 5.) Defendant seeks these records because plaintiff stated that she shared her Target experience, and its impact on plaintiff, with Dr. Satchell. (Dkt. #60 at 3.)
 
The Court denies defendant's request.
 
A plaintiff does not put her medical history at issue in a litigation when she claims “garden variety” emotional distress damages. Feltenstein, 2018 WL 3752874, at *4. Garden variety claims typically lack “medical corroboration” and “the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury.” Olsen v. County of Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009); see Misas v. North-Shore Long Island Jewish Health Sys., No. 14-cv-8787 (ALC)(DJF), 2016 WL 4082718, at *4 (S.D.N.Y. July 25, 2016) (characterizing emotional distress damages as “garden variety” when the claims were “simple and usual, [and did] not refer to any specific psychiatric disorder”). For this reason, “there is no need to examine plaintiff's full medical history or require a waiver of all physician-patient ... confidentiality.” Brown v. Kelly, No. 05-cv-5442 (SAS), 2007 WL 1138877, at *2 (S.D.N.Y. Apr. 16, 2007).
 
The Court has no reason to doubt plaintiff's representation that she seeks only “garden variety” emotional distress damages. In her Amended Complaint, plaintiff asserted that she experienced emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation due to defendant's discrimination. (Dkt. #20 at 12.) During the hearing on April 13, 2021, plaintiff explained that she has not received treatment for issues related to her allegations. Plaintiff's claims are “simple and usual,” and plaintiff's testimony will be able to give credence to any emotional distress damages.
 
Further, defendant has not demonstrated why the Rule 26(b)(1) proportionality factors weigh in favor of defendant gaining access to all of plaintiff's medical records with Dr. Satchell. Although federal common law does not recognize a physician-patient privilege, plaintiff has not waived her privacy interest in her medical records because she has not put her mental or physical condition “at issue.” See Feltenstein, 2018 WL 3752874, at *4. Therefore, the medical records that defendant seeks are not relevant. Even if such records are relevant, defendant's request for all of plaintiff's medical records is disproportionate to the needs of the case.
 
*4 For the foregoing reasons, the Court will not require plaintiff to sign an authorization releasing her medical records.
 
v. Dispositive Motion Deadlines.
Defendant requests the Court enter the following deadlines: (i) August 26, 2021 – Deadline for dispositive motions; and (ii) September 27, 2021 – Deadline for any response to dispositive motions. (Dkt. #60 at 5.) The Court adopts the suggested deadlines. The parties shall file any dispositive motions by August 26, 2021. If dispositive motions are filed, any responses shall be filed by September 27, 2021.
 
B. Plaintiff's Discovery Requests
Plaintiff argues that defendant's discovery production continues to be deficient with respect to four requests that plaintiff first raised in her Motion to Compel (Dkt. #50).
 
i. Discovery Request 1.
Plaintiff contends that defendant did not provide a performance evaluation from 2017 when Mr. Sanders worked as a Receiver and that this evaluation is necessary because defendant promoted Mr. Sanders due to his performance. (Dkt. #61 at 1.) However, in its status update defendant represented that it “produced all performance evaluations, job reviews, or other performance documents for John Sanders from 2015 to the end of his Target employment.” (Dkt. #60 at 3.) Defendant's supplemental responses to plaintiff's Requests for Production verified that defendant “is not in possession of additional responsive documents.” (Dkt. #62-1 at 3.)
 
In general, “a party's good faith averment that the items sought simply do not exist, or are not in his possession, custody, or control, should resolve the issue of failure of production since one cannot be required to produce the impossible.” Menard v. Chrysler Grp. LLC, No. 14-cv-6325 (VB), 2015 WL 5472724, at *1 (S.D.N.Y. July 2, 2015). Upon a party's representation that no further documents exist, the seeking party must “cite to specific evidence” to challenge that assertion. Mason Tenders, 318 F.R.D. at 42.
 
Given defendant's representation that it has no further responsive documents, and a lack of specific evidence from plaintiff “to call into question [defendant's] contention that no further responsive documents exist[,]” the Court denies as moot plaintiff's Discovery Request 1. Id. at 42-43.
 
ii. Discovery Request 2.
Plaintiff contends that defendant has documents that pertain to electronic punch correction requests for John Sanders because employees submitted such requests via email and supervisors submitted those requests to Human Resources. (Dkt. #61 at 2.) Defendant's supplemental responses to plaintiff's Requests for Production represented that, excluding its supplemental production of attendance records, defendant “is not in possession of additional responsive documents, including employee email request(s) for a ‘time-punch modification’ for 2015 – 2017.” (Dkt. #62-1 at 4.)
 
Given defendant's representation that it has no further responsive documents, and a lack of specific evidence from plaintiff to suggest otherwise, the Court denies as moot plaintiff's Discovery Request 2.
 
iii. Discovery Request 3.
Plaintiff contends that defendant has not produced all documents because employees complained about racist and offensive conduct. (Dkt. #61 at 1.) Defendant's supplemental responses to plaintiff's Requests for Production represented that, excluding its supplemental production, defendant “is not in possession of additional responsive documents.” (Dkt. #62-1 at 5.)
 
*5 Given defendant's representation that it has no further responsive documents, and a lack of specific evidence from plaintiff to suggest otherwise,[3] the Court denies as moot plaintiff's Discovery Request 3.
 
iv. Discovery Request 8.
Plaintiff contends that defendant did not comply with the Order because, although two former employees discussed discrimination during exit interviews, defendant only produced a hotline report from a former employee. (Dkt. #61 at 1–2.) Defendant's supplemental responses to plaintiff's Requests for Production represented that, excluding its supplemental production, defendant “is not in possession of additional responsive documents.” (Dkt. #62-1 at 7.)
 
Given defendant's representation that it has no further responsive documents, the Court denies as moot plaintiff's Discovery Request 8.
 
IV. Conclusion
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the requests that defendant presented in its status update. The Court DENIES, as moot, the requests that plaintiff presented in her status update.
 
This is not a Recommended Ruling. This is a discovery ruling or order which is reviewable pursuant to the “clearly erroneous” statutory standard of review. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); D. Conn. L. R. 72.2. As such, it is an order of the Court unless reversed or modified by a district judge upon motion timely made.
 
SO ORDERED this 19th day of May, 2021 at Hartford, Connecticut.
 
Footnotes
During the hearing on April 13, 2021, plaintiff challenged the appropriateness of certain redactions that defendant made in its discovery production. Defendant asserted that the redactions were made to shield information that is protected by the attorney-client privilege. In an effort to resolve the dispute, the Court ordered the defendant to submit an unredacted version for in camera review. (Dkt. #58.) On April 21, 2021, defendant submitted redacted and unredacted versions for the Court's review. (Dkt. #59.) After reviewing the privilege log, the unredacted version of the discovery production, and the redacted version, the Court finds that the defendant has established that the redacted information is protected by the attorney-client privilege. More specifically, the redacted information involves confidential communications between an attorney and client for the purposes of seeking or giving legal advice. Therefore, the Court finds that the redactions are appropriate.
Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.
If deposition testimony or other evidence in discovery reveals that the alleged complaints were made in writing, the plaintiff can certainly ask the Court to revisit Request No. 3.