Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Allred v. Home Depot USA, Inc.

United States District Court, D. Idaho

June 28, 2019

RANDI ALLRED, Plaintiff,
v.
HOME DEPOT USA, INC., dba THE HOME DEPOT, and JOSH HAZLETT, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL JUDGE

         INTRODUCTION

         Seven ripe motions are presently before the Court: (1) Home Depot's and Josh Hazlett's (collectively, “Home Depot”) Motion for Summary Judgment, Dkt. 83; (2) Plaintiff's (hereinafter, “Allred”) Motion for Leave to Amend to Add a Claim for Punitive Damages, Dkt. 85; (3) Allred's Motion to Exclude Exhibit 25 of Home Depot's Statement of Undisputed Facts in Support of Home Depot's Motion for Summary Judgment, Dkt. 94; (4) Home Depot's Motion to Partially Strike Allred's Motion for Leave to Amend to Add a Claim for Punitive Damages and for Discovery Sanctions under Federal Rules of Civil Procedure 26, 30, and 37, Dkt. 98; (5) Allred's Second Motion to Exclude Evidence, Dkt. 99; (6) Home Depot's Motion for Leave to File Late Declarations in Support of Home Depot's Motion for Summary Judgment, Dkt. 106; and (7) Allred's Motion to Strike Portions of Home Depot's Response in Opposition to Allred's Motion for Leave to Amend to Add Claim for Punitive Damages, Dkt. 113). The Court heard oral argument on all the motions on May 21, 2019.

         ANALYSIS

         1. Motions to Exclude and to Strike

         The Court has been required to referee numerous discovery disputes in this case. The Court's general policy regarding discovery disputes is to encourage the parties to not only meet and confer, but to permit the Court to mediate the dispute, before any motions to compel are filed. That policy almost always leads to a resolution of the dispute without the need for expensive and time-consuming motions, briefing, and judicial intervention. But, not in this case. As a result of the parties' unwillingness or inability to reach agreement, the Court was forced to take several actions which delayed discovery unnecessarily and increased the cost of litigation - all in conflict with the command of Rule 1 of the Federal Rules of Civil Procedure.

         First, the Court sanctioned Home Depot for failing to appear at a noticed deposition. Dkt. 51. Second, the Court quashed Allred's Rule 30(b)(6) subpoena because, among other reasons, the subpoena was overbroad and improperly noticed. Dkt. 66. Third, the Court granted Allred's motion to compel discovery-which was filed after the discovery deadline of December 21, 2018 had passed-and required select Home Depot store managers to fill out a questionnaire crafted by the Court (with input from the Parties) under oath. Dkt. 79.

         A. Legal Standard

         Both Home Depot and Allred allege that the other side failed to disclose materials pursuant to Rule 26(a) and failed to supplement their disclosures pursuant to Rule 26(e). As a remedy, Home Depot and Allred seek Rule 37 sanctions. Rule 37(c) states:

[i]f a party fails to provide information ... as required by Rule 26(a) or (e), the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court on motion or after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions including any of the orders listed in Rule 37(b)(2)(A) (i)-(vi).

         B. Analysis

         a. Allred's Motion to Exclude Home Depot Exhibit 25 (Dkt. 94)

         The first motion to exclude comes from Allred. She asks to Court to exclude Exhibit 25 to Defendant's Statement of Undisputed Facts. Dkt. 86-25. Exhibit 25 contains scanned copies of the questionnaire crafted by the Court and counsel in response to Allred's Second Motion to Compel Discovery. Dkt. 71. This is the third time that the Court has been asked to address this dispute. Dkt. 65; Dkt. 71; Dkt. 94-1. To provide some context, Allred has repeatedly argued that Home Depot failed to sufficiently respond to Allred's First Interrogatory Request Number 4, Second Interrogatory Request Numbers 19 and 22, and Request for Production 38. Dkt. 65; Dkt. 71; Dkt. 94-1. This dispute led Allred to notice, without Court approval, a third Rule 30(b)(6) deposition. In the context of evaluating Home Depot's motion to quash, the Court reviewed the interrogatories and request for production listed above. The Court determined that each of the interrogatories and the request for production were overbroad either temporally or geographically. The Court's decision on the motion to quash was partially driven by this conclusion. See Dkt. 66.

         After the Court quashed Allred's subpoena, Allred filed a second motion to compel Home Depot's response to the listed interrogatories and request for production. Dkt. 71. After hearing oral argument from the Parties, the Court determined that it would take the extraordinary step of requiring select Home Depot managers to fill out a questionnaire under oath. Implicit in the Court's decision were the following premises: (1) discovery was closed, (2) Allred's interrogatories and request for production had been overbroad, but (3) Home Depot had also failed to be forthcoming in answering discovery requests which were clearly appropriate. Thus, the questionnaire had the dual benefit of bringing discovery to a close and at the same time giving Allred the information she needed. See 8 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2008.1 (3d ed. 2015) (concluding that Rule 26 was amended to vest trial courts with the duty to “limit[] … the amount of discovery on a case-by-case basis to avoid abuse or overuse of discovery through the concept of proportionality”). Both Parties accepted this approach during the hearing. Dkt. 79.

         Despite accepting the Court's solution during the hearing, Allred now argues that the questionnaire should be excluded. This result would be inequitable and is not supported or required by Rule 26. Home Depot correctly objected to the overbreadth of Allred's interrogatories and request for production. The Court, in crafting the questionnaire, struck a balance between bringing discovery to a close and providing Allred with sufficient, but not unduly burdensome, discovery.

         b. Home Depot's Motion to Partially Strike Allred's Motion for Leave to Amend to Add a Claim for Punitive Damages (Dkt. 98)

         Home Depot also argues that Allred should be sanctioned under Rule 37. Specifically, Home Depot argues that the following factual allegations in Allred's Declaration in Support of Her Motion to Amend to Add a Claim for Punitive Damages (Dkt. 85-2) are being revealed for the first time in violation of Rule 26:

1. Declaration Paragraph 9: “Hazlett treated me differently in several ways after I told him about the pregnancy and complications. For example, he excluded me from the bi-monthly business walks - an important management session where Hazlett and all ASM's would walk around the perimeter of the store and review things that needed done and discuss store management strategy. I had always been included on the business walks prior to my pregnancy. Hazlett also stopped inviting me to district team meetings for all of management and said I did not need to worry about coming to the meetings; yet other ASM's were invited. I had been putting together and running ‘pro events' which were special store events for professionals who purchased supplies in larger quantities at the store. Despite the fact I had planned a Pro-Event during my pregnancy, Hazlett told me he would handle it and would not allow me to attend my own event.”
2. Declaration Paragraph 10: “I had also been regularly appearing as a Home Depot representative on television episodes on Channel 6 where we were special guests for home improvement segments. I had attended with an employee from the Meridian Store. But after I was pregnant Hazlett told me I could no longer appear on Channel 6 for these segments. However, the Meridian store employee still appeared on the TV segments.”
3. Declaration Paragraph 11: “The complications got worse and I was increasingly stressed at work because of the way Mr. Hazlett was treating me. It felt like he was ostracizing me.”

         Dkt. 85-2 at 3. Home Depot argues that these allegations were responsive to Home Depot Interrogatories 5 and 18 which read:

1. Interrogatory 5: “List each element of damages that You are claiming and include in Your response the following (a) the category into which item of damages falls . . . (b) the factual basis for each item of damages; (c) the amount claimed for each; and (d) an explanation of how each amount was calculated, including any mathematical formula.”
2. Interrogatory 18: “Describe each and every fact, Communication, or Document upon which You base Your contention, in paragraph 84 of the Complaint, that Home Depot ‘cultivates a work environment and culture that discriminates against female employees in general, as well as pregnant employees and female employees who have child-rearing responsibilities.'”
Dkt. 98 at 4.

         In response, Allred argues that neither Interrogatory 5 nor Interrogatory 18 request the information contained in Paragraphs 9, 10, and 11. Specifically, Allred argues that Interrogatory 5 only sought information related to “damages” and Interrogatory 18 only sought information related to Home Depot's failure to cultivate an environment that “allow[ed] women like Randi an opportunity to regularly breast pump.” Dkt. 114 at 3-5. With respect to Interrogatory 18, Allred's implicit argument is that the Interrogatory did not require her to describe any harassment Allred experienced during pregnancy.

         Neither of Allred's arguments are persuasive. The plain language of the Interrogatories, rather than Allred's summaries thereof, encompass the specific facts that Allred alleges in Paragraphs 9, 10, and 11. Allred discloses in Paragraph 9 that she was excluded from management walks and the Pro-Day event she organized. In Paragraph 10, Allred discloses that she was prevented from continuing to serve as Home Depot's television representative. In Paragraph 11, Allred discloses that the effect of her exclusion was to make her feel “ostracized.” Dkt. 85-2 at 3. Each factual allegation supports both Allred's calculation of damages and her “contention, in paragraph 84 of the Complaint, that Home Depot ‘cultivates a work environment and culture that discriminates against … pregnant employees and female employees who have child-rearing responsibilities.'” Dkt. 98 at 4 (emphasis added). Because Allred's arguments regarding the limited scope of Interrogatories 5 and 18 are unpersuasive and she fails to argue that these facts were disclosed elsewhere or that her failure to do so was non-prejudicial, the Court will strike those allegations from Allred's Declaration and will not consider them in the context of the Parties' summary judgment or leave to amend motions. See Rule 37(c)(1)(C). The Court will not impose attorney's fees pursuant to Rule 37(c)(1)(A).

         c. Allred's Second Motion to Exclude Evidence (Dkt. 99) and Home Depot's Motion for Leave to File Late Declarations (Dkt. 106)

         For expediency's sake, the Court will combine its discussion of the motions at dockets entries 99 and 106 In docket entry 99, Allred seeks to exclude exhibits 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 20, 21, 27, 29, 30, 31 and 32, all of which are attached to Home Depot's Statement of Undisputed Facts in Support of Its Motion for Summary Judgment. Dkt. 86. With respect to Exhibits 27 and 29, Allred argues that exclusion is proper because Home Depot failed to include the reporter's signed certification in the exhibits. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 774 (9th Cir. 2002) (“A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter's certification that the deposition is a true record of the testimony of the deponent.”). With respect to the rest of the Exhibits, Allred argues that exclusion is required because Home Depot failed to authenticate them. Id. at 777-778.

         In response to Allred's motion, the Home Depot took two curative steps. First, it filed an errata to which it attached corrected versions of Exhibits 27 and 29 that include the reporter's certification. Dkt. 104. Second, Home Depot filed its Motion for Leave to File Late Declarations. Dkt. 106.

         Federal Rule of Civil Procedure 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may … (4) issue any other appropriate order.” The Committee Notes for the 2010 Amendment to Rule 56 state that Rule 59(e) was amended with understanding that summary judgment “should [not] … be denied by default even if the movant completely fails to reply to a nonmovant's response.” Thus, the Rules contemplate that technical shortcomings should not prevent the kind of searching inquiry called for by Rule 56. See also McCreery v. United States, No. 4:08-CR-00091-BLW, 2012 WL 4052356, at *2 (D. Idaho Sept. 13, 2012) (denying a petitioner's request for summary judgment on the basis that the government failed to respond within the appropriate deadline).

         Denying Home Depot the opportunity to submit its late declarations and errata would result in Home Depot's summary judgment motion being resolve by default, rather than after conducting the kind of review envisioned by Rule 56. Accordingly, the Court will grant Home Depot's motion for leave to file late declarations and will consider the deposition excerpts filed as errata.[1]

         d. Allred's Motion to Strike Portions of Home Depot's Response in Opposition to Allred's Motion for Leave to Add Claim for Punitive Damages (Dkt. 113)

         Allred has also moved to strike Exhibits 4, 5, and 7 to Home Depot's Response in Opposition to Allred's Motion for Leave to Amend to Add Claim for Punitive Damages. Dkt. 113. Specifically, Allred argues that Exhibits 4 and 5 should be excluded because Home Depot has failed to authenticate them and because they are hearsay. Dkt. 113-1 at 2-3. Allred asks the Court to exclude Exhibit 7, which is a declaration executed by Home Depot employee Jamie Frederick, because (1) Home Depot failed to timely and adequately disclose Frederick as a witness and (2) paragraph 11 of the declaration contains double hearsay.

         The Court will evaluate each exhibit in turn, beginning with Exhibit 4. According to Home Depot, “Exhibit 4 is a business record of Home Depot that is easily authenticated and was produced as part of Defendant's initial disclosures.” Dkt. 120 at 2. To authenticate Exhibit 4, Home Depot filed a late declaration from Josh Hazlett. Dkt. 120-2. The Court will exclude this Exhibit. Home Depot should have filed the Hazlett Declaration contemporaneously with its response to Allred's Motion for Leave to Amend. Because Exhibit 4 was not filed in support or opposition to a summary judgment motion, Rule 56 does not provide a reason for adopting a policy of leniency in considering Home Depot's technical failure. Accordingly, the Court will not consider this exhibit in the context of Allred's Motion for Leave to Amend.

         The Court will, however, consider Exhibit 5. Although the tardily filed Hazlett Declaration is not a sufficient basis to establish authenticity of the document, as Home Depot correctly points out, Exhibit 5 was produced by Allred and her deposition testimony confirms that the phone number in the Exhibit is her phone number. See Dkt. 106-2 ¶ 4; Dkt. 106-3 at 5. This is enough to establish the Exhibit's authenticity. Orr, 285 F.3d at 776 (“When a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties.”).

         Finally, the Court turns to the Frederick Declaration. Dkt. 100-7. Frederick worked in the Nampa store during the same time that Allred was employed there, and, during that time, took breaks to express breast milk without difficulty. Id. In paragraph 11 of her Declaration, Frederick makes the following statement:

When she worked with me at the Nampa store, I had multiple conversations with Ms. Allred about breastfeeding. Ms. Allred stated that her husband wanted her to be at home rather than working and he complained about having to heat up stored breast milk for the baby while she was at work. We also discussed sometimes forgetting to pump because we were busy. Ms. Allred never complained about Home Depot or Mr. Hazlett or ever indicated that she felt the working conditions were intolerable.

Id. at 2. Allred asks the Court to exclude the Declaration because (1) Home Depot failed to adequately disclose Frederick's information in response to Plaintiff's Interrogatories 1, 5, 9, and 14 and (2) paragraph 11 of the Declaration contains hearsay. Interrogatories 1, 5, 9, and 14 request the following information:

1. Interrogatory 1: “Please identify each and every person who may have knowledge of facts relating to this litigation and each and every person likely to have discoverable information relevant to matters alleged in the pleadings, identifying the subject about which the individual is likely to have discoverable information. This interrogatory seeks the identification of all potential witnesses who have, or claim to have, any knowledge whatsoever of any fact pertinent to the claims and defenses in this case.” Dkt. 113-1 at 4.
2. Interrogatory 5: “Please provide a complete listing and description of all accommodations and/or modifications of job duties, work schedules, and/or break schedules provided by any of the Idaho Home Depot stores for any pregnant and/or lactating employee(s) between January 1, 2013 and present.” Id.
3. Interrogatory 9: “With respect to each meeting, conversation, or discussion, however informal, at which time the events which make up the subject matter of the Complaint were discussed by officers and/or managers and/or supervisors and/or employees of Home Depot, set forth: (a) the date of the meeting, conversation or discussion; (b) the name and phone number of each participant of the meeting, conversation, or discussion; and (c) a description in detail of what was said by whom ….” Id.
4. Interrogatory 14: “If you or anyone representing your interest has obtained any statement or admission, oral or written, signed or unsigned, or any shorthand or recorded statement, or any recorded . . . form anyone with knowledge of the facts or allegations in this case, please state the following for each: (a) the date when and the place where the oral, recorded and/or written statement or admission was made; (b) the name and address of each person or party preset . . . (f) the context of the oral, recorded, and/or written statement or admission in full detail ….” Id.

         The Court concludes certain statements contained in Frederick's Declaration were adequately disclosed. To begin with, Home Depot's Third Supplement to Initial Disclosures identifies Frederick as a witness and states that she has information regarding “[h]er own experiences as a nursing and pumping mother who took breaks to express breast milk while working at Home Depot” and “[l]actation break policies at the Nampa Home Depot.” Dkt. 120-3 at 3-4. Allred also acknowledges that Frederick was disclosed in response to Plaintiff's Interrogatory 23. Dkt. 113-1 at 3. To the extent that Allred complains that Frederick was ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.