*1 This matter is before the court on the plaintiff's motion for sanctions pursuant to Federal Rule of Civil Procedure 37 (doc. 44). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.[1]

In her complaint, the plaintiff, who has a form of muscular dystrophy and related conditions, alleges that the defendants are an integrated operation that constitute a single employer for purposes of the Americans with Disabilities Act (“ADA”) (doc. 1, comp. ¶¶ 3, 5). The plaintiff alleges that she applied for two positions at the defendants’ Store 1035 in Spartanburg County, and she was offered and accepted the position of fitting room associate. Thereafter, the plaintiff was sent an email stating that she was not being hired for the position. The plaintiff alleges that the defendants (collectively, “Walmart”) refused to hire her based on her disability in violation of the ADA (id. ¶¶ 5-22).

The plaintiff's Federal Rule of Civil Procedure 30(b)(6) deposition notice to Walmart designated twenty-one topics on which examination would be conducted (doc. 44-1 at 1-2). Walmart did not object to the topics and sought no protection from the court prior to the deposition. On October 28, 2022, Walmart produced Ginny Marhanka (“the designee”), a Regional Health and Wellness People Partner for Walmart, as its corporate representative as to the matters set forth in the Rule 30(b)(6) deposition notice (doc. 45-4, 30(b)(6) dep.). The designee testified that she prepared for the deposition by meeting with attorney Bill Foster for two hours the day before the deposition and by reviewing the documents that counsel compiled (id. at 55).

On November 25, 2022, the plaintiff filed a motion for sanctions against Walmart for failure to adequately prepare its 30(b)(6) designee for deposition (doc. 44). Walmart filed a response on December 9, 2022 (doc. 45), and the plaintiff filed a reply on December 13, 2022 (doc. 47). Accordingly, the matter is now ripe for review.

Rule 30(b)(6) provides that a party may name “as the deponent a public or private corporation,” and the party conducting the deposition has the obligation to “describe with reasonable particularity the matters for examination.” Fed. R. Civ. P. 30(b)(6). The corporation then “must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; ... about information known or reasonably available to the [corporation].” Id.

Power Home Solar, LLC v. Sigora Solar, 339 F.R.D. 64, 76 (W.D. Va. 2021).

Rule 37(d)(1) permits courts to impose sanctions when a party's Rule 30(b)(6) corporate designee “fails, after being served with proper notice, to appear for that person's deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i). Rule 37(d) applies when a corporate designee either (1) does not appear for her deposition or (2) appears but is unwilling or unprepared to testify knowledgeably on the noticed deposition topics. Power Home Solar, 339 F.R.D. at 73 (citations omitted). The types of allowable sanctions include: (1) “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims”; (2) “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence”; (3) “striking pleadings in whole or in part”; (4) “staying further proceedings until the order is obeyed”; (5) “dismissing the action or proceeding in whole or in part”; or (6) “rendering a default judgment against the disobedient party.” Fed. R. Civ. P. 37(b)(2)(A)(i)–(vi); see also Fed. R. Civ. P. 37(d)(3). Moreover, “[i]nstead of or in addition to these sanctions,” courts assessing sanctions under Rule 37(d)(1) generally “must” require the party failing to act, its counsel, or both “to pay the reasonable expenses, including attorney's fees, caused by the failure.” Fed. R. Civ. P. 37(d)(3) (mandating fee-shifting “unless the failure was substantially justified or other circumstances make an award of expenses unjust”).

The Court of Appeals for the Fourth Circuit has developed a four-part test for determining whether (and, if so, which) Rule 37(d) sanctions are appropriate in the particular case. Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir. 2001) (en banc). The district court “must determine (1) whether the noncomplying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would have been effective.” Id. See also S. Mgmt. Corp. Ret. Tr. v. Rood, 532 F. App'x 370, 372–73 (4th Cir. 2013) (per curiam).

The plaintiff first contends that the designee was unprepared or unable to testify regarding four topics (Topics 4, 6, 7, 8) on the general issue of the plaintiff's communications with Walmart about her efforts to be hired (doc. 44 at 5-9). The specific topics were as follows:

(Doc. 44-1 at 2).

The designee testified that the hiring staff at the pertinent time were interviewed by Walmart or its counsel (doc. 45-4 at 10), but none of these individuals remembered communicating with the plaintiff (id. at 134).[2] The plaintiff notes that Walmart's offer of employment for the fitting room associate position identified Douglas Tucker as the hiring manager (id. at 30; doc. 44 at 6; doc. 44-6). However, the designee made no effort to speak with Mr. Tucker and never asked anyone else with Walmart whether they spoke with him about his interaction with the plaintiff (doc. 45-4 at 30-32). The designee further testified that she had “no idea” if at any point in time Walmart interviewed Mr. Tucker (id. at 89-90). As noted, the designee did testify that counsel interviewed the hiring staff who could have been involved in the hiring process, but those individuals did not recall communicating with the plaintiff (doc. 45-4 at 10, 134), and Mr. Tucker is listed by Walmart as one of the individuals who was interviewed (id. at 17; doc. 45-6). However, given the clear importance of the one hiring manager identified in the documents for this position, it was incumbent upon Walmart to prepare its designee to testify regarding Mr. Tucker's knowledge of the plaintiff's efforts to be hired by Walmart, and it clearly failed to do so here.

The plaintiff further contends that the designee was unprepared or unable to testify regarding three topics (Topics 2, 3, 11) about why Walmart did not hire her for a cashier position (doc. 44 at 9-11). The specific topics were as follows:

(Doc. 44-1 at 1-2).

When asked why the plaintiff was not offered a position as a cashier at Store 1035 in 2021, the designee testified that “the hiring manager for that position was hiring an internal applicant for a promotion opportunity” (doc. 45-4 at 50). She further testified that the “hiring manager who was over the front end at the time was Heather Nicely” (id.). When asked whether Walmart knew of any information Ms. Nicely may have reported as to the reasons why the plaintiff was not offered a cashier position, the designee answered, “No” (id. at 57). When the designee was asked what attorney Bill Foster told her that Ms. Nicely reported, the designee was instructed not to answer (id.).[3] Walmart notes that, later in the deposition, upon questioning by Walmart's counsel, the designee testified in reviewing a spreadsheet produced by Walmart that the cashier position for which the plaintiff applied was filled by an internal candidate, and the hiring manager for that position was Ms. Nicely (id. at 123-25). Walmart further notes that the plaintiff could depose Ms. Nicely if she so chooses (doc. 45 at 12). As noted by the plaintiff, however, Walmart in its discovery responses has contended that Ms. Nicely “does not have any first-hand knowledge of Plaintiff's application for employment” (doc. 45-7 at 4).

*4 The plaintiff further contends that the designee was unprepared or unable to testify regarding three topics (Topics 9, 10, 12) about the fitting room associate position that Walmart offered the plaintiff and then later withdrew (doc. 44 at 11-14). The specific topics were as follows:

(Doc. 44-1 at 2).

Walmart emailed the plaintiff telling her that it “received [her] application” for the fitting room associate position, but it “decided not to move forward as ... [it had] other candidates who are more qualified for the position” (doc. 44-8). When asked whether she did anything to determine whether the “better candidates” reason was true when the email was sent to the plaintiff, the designee testified that she did not (doc. 45-4 at 49-50). When asked whether she made any effort to determine the identity of each person involved in the decision that the plaintiff should be rejected for employment (Topic 9), the designee testified that she did not (id. at 37-40).

The plaintiff further contends that the designee was unprepared or unable to testify regarding three topics (Topics 14, 15, 16) about the “different reason” that Walmart's internal system (Career Preference System) showed for the plaintiff not being hired for the position: “candidate not interested”[4] (doc. 44 at 15-19; doc. 44-7 at 8). The specific topics were as follows:

(Doc. 44-1 at 3).

The designee could not identify who provided the “candidate not interested” information on the internal system and further testified that she did not do anything to inform herself as to who provided that information under the reason description on the internal system (doc. 45-4 at 39-42). When asked if the plaintiff told anyone at Walmart that she was not interested in the fitting room associate position, the designee responded that she did not know, and when asked if she made any effort to find out what the plaintiff told anyone, the designee responded that she did not (id. at 43). When asked if she spoke to Eboni Smith, a coach at the relevant store, about the information that was put into the internal system, the designee testified that she did not (doc. 45-4 at 41).[5]

*5 Walmart states in response:

(Doc. 45 at 13). However, as noted by the plaintiff, the designee did not testify that Walmart does not know the reason why the offer was withdrawn. Rather, the designee testified that it was possible the job was no longer available because fitting rooms were closed during COVID-19 protocols (doc. 45-4 at 45-46) and further testified regarding the possibility that the plaintiff failed to click and accept the offer and provide the further information needed to process her employment with Walmart (id. at 25, 27, 121-22).

The plaintiff further argues that the designee was unprepared or unable to testify regarding Topic 20, which sought testimony on the pay scale for the positions for which the plaintiff applied, the amount and date of any increases, and the date and amounts of any bonuses (doc. 44 at 19-20; see doc. 44-1 at 3). The designee testified that she was not aware if the rate of pay for the fitting room associate position had increased and further that she had not done anything to inform herself as to any changes in the pay scale for the positions (doc. 45-4 at 116-17). In response, Walmart does not address its designee's preparedness for this topic. However, Walmart states that it has already provided this information via its discovery responses and document production (doc. 45 at 14). For example, Walmart states that it has disclosed that the range of pay for money center cashiers at the relevant store is: minimum: $11.50 / midpoint: $15.16 / maximum: $18.81 (id.). Walmart states that it also provided a spreadsheet detailing nearly eighty associates working as cashiers and fitting room associates at the relevant store since January 1, 2020, with dates of employment and rate of pay for each, including pay increases (id.). Walmart further states that it provided in its written discovery responses the names and current rate of pay for three associates who have worked as fitting room associates at the relevant store during the time period of January 1, 2020, to present (id. at 14-15), and, upon questioning by Walmart's counsel, the designee confirmed this information in the deposition (doc. 45-4 at 135-36). Accordingly, it appears from Walmart's response that the damages information sought by the plaintiff in Topic 20 has been provided in its discovery responses.

The plaintiff further argues (doc. 44 at 20-23) that the designee was unable or unprepared to testify regarding Topic 17, which sought testimony regarding “the facts upon which defendants rely in asserting their affirmative defenses” (doc. 44-1 at 3). Walmart does not address this topic in its response to the motion for sanctions. While Walmart did not raise any objection to this topic or seek protection from the court, when the designee was asked upon what facts Walmart was relying in asserting the defense that the plaintiff failed to reasonably mitigate her claimed damages (third defense), defense counsel made “a general objection” “to the extent it calls for a legal conclusion” (doc. 45-4 at 112). The designee then answered that “our attorneys prepared the defense, but it was based on the information we gave, so I don't know exactly what it would be” (id. at 113). As to the eighth defense that the plaintiff's claims are barred because she is not disabled under the ADA, the designee testified she was not aware of the facts upon which Walmart relied in asserting that defense (id.). As to the sixteenth defense that the plaintiff's claims fail because she was not qualified for the positions to which she applied, the designee testified that Walmart did not have any information that the plaintiff was not qualified for the positions (id. at 114). As to the seventeenth defense that any accommodation allegedly required by the plaintiff created an undue hardship for Walmart, the designee testified that she was unaware of any facts supporting such defense (id.). As for the nineteenth defense that the plaintiff's claims and/or recovery may be barred in whole or part because of after-acquired evidence of wrongful conduct, the designee testified that Walmart did not have any information that the plaintiff engaged in any wrongful conduct (id. at 114-15). Lastly, in the twenty-second defense, Walmart stated in its answer that it had “not had an opportunity to conduct a full and sufficient investigation or to engage in adequate discovery touching on the circumstances of Plaintiff's allegations” and gave notice of “intent to assert any affirmative defenses or allegations of fact that this information-gathering process may indicate are supported by law” (doc. 9 ¶ 64). When asked what Walmart did not have the opportunity to investigate at the time of the filing of the answer on February 4, 2022, the designee responded that she was “not aware,” and she further testified that she was not aware if Walmart ever asked the plaintiff for any information that she failed to provide (doc. 45-4 at 115-16). The designee should have been prepared to answer the questions regarding Walmart's affirmative defenses, and she was clearly unprepared to answer many of those questions. See U.S. v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C. 1996) (“If a corporation has knowledge or a position as to a set of alleged facts or an area of inquiry, it is its officers, employees, agents or others who must present the position, give reasons for the position, and, more importantly, stand subject to cross-examination.”).

*6 The plaintiff further notes that defense counsel objected “to the form” some ninety-nine times during the deposition (doc. 44 at 4). The plaintiff contends the objections were “incessant and rote” and were uttered “every time it became apparent that the witness was unprepared” (doc. 44 at 4). Walmart also does not address this issue in its response to the motion for sanctions. A review of the transcript shows defense counsel adopted the unfortunate practice of interposing an “object to form” to questions without specifying the specific defect so as to allow the questioner to cure the objection – as is contemplated by the Rules (see generally doc. 45-4). See Henderson v. B & B Precast & Pipe, LLC, C.A. No. 4:13-CV-528CDL, 2014 WL 4063673, at *1 (M.D. Ga. Aug. 14, 2014) (“Generally, only an objection that would alert the questioner of a ground for objection that could be corrected during the deposition must be made at the time of the deposition. Fed. R. Civ. P. 32(d)(3)(B). Thus, if a question is propounded in an improper form, the objection should be stated concisely on the record during the deposition in a manner that provides the questioner with a reasonable opportunity to correct the form of the question.... When ‘objection to form’ does not indicate what is wrong with the form so that the questioner can correct the problem, it becomes nothing more than a statement that the objector finds the question ‘objectionable.’ ”).

The undersigned finds that Walmart's Rule 30(b)(6) designee was unprepared to testify knowledgeably on numerous noticed deposition topics, and, accordingly, Rule 37(d) applies permitting the court to impose sanctions. See Power Home Solar, 339 F.R.D. at 73 (citations omitted). Here, the plaintiff requests that Walmart be prohibited from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence related to the subjects for which it failed to present a prepared designee, and further requests that Walmart's third, eighth, sixteenth, seventeenth, nineteenth, and twenty-second affirmative defenses be stricken (doc. 44 at 34).[6] See Fed. R. Civ. P. 37(b)(2)(A)(i)–(vi); see also Fed. R. Civ. P. 37(d)(3). Alternatively, the plaintiff seeks attorney's fees and costs for the deposition, associated transcript costs, and attorney's fees and costs for the motion for sanctions (doc. 44 at 34).

Robinson v. Quicken Loans, Inc., C.A. No. 3:12-CV-00981, 2013 WL 1776100, at *4 (S.D.W. Va. Apr. 25, 2013). The court has considered the degree of culpability of Walmart and the extent of prejudice to the plaintiff and finds that the less severe sanctions of attorney's fees and costs incurred in the taking of the Rule 30(b)(6) deposition and in the making of the instant motion for sanctions are appropriate in this case.

Wherefore, based upon the foregoing, the plaintiff's motion for sanctions (doc. 44) is granted in part and denied in part, as set forth above. On or before February 17, 2023, the plaintiff's counsel is directed to file an affidavit of attorney's fees and costs for the Rule 30(b)(6) deposition, transcript, and motion for sanctions. Thereafter, Walmart will have until March 3, 2023, to file any objections to the requested fees and costs. After the court's review of the plaintiff's counsel's affidavit and any objections thereto, a timetable for Walmart's payment to the plaintiff will be provided by the court.

*7 IT IS SO ORDERED.