Sanchez-Medina et al v. Unicco Service Company et al, No. 3:2007cv01880 - Document 66 (D.P.R. 2009)

Court Description: OPINION AND ORDER Signed by Chief Mag. Judge Justo Arenas on 11/30/2009.(nydi)

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 5 6 AGAPITO SÃ NCHEZ-MEDINA, HIS WIFE LIZEL MARITZA LÃ PEZMESTRE and the CONJUGAL PARTNERSHIP SÃ NCHEZ-LÃ PEZ, 7 8 9 10 11 Plaintiffs CIVIL 07-1880 (DRD) v. UNICCO SERVICE COMPANY; UNILEVER DE PUERTO RICO, INC., et al., 12 13 14 Defendants OPINION AND ORDER 15 16 This matter is before the court on plaintiffs request that defendants be 17 18 ordered to immediately produce information which had been previously requested 19 by them. For the reasons set forth below plaintiffs request is hereby GRANTED. 20 I. BACKGROUND 21 Plaintiffs causes of action were brought under the Age Discrimination and 22 23 Employment Act ( ADEA ) and Title VII of the of the Civil Rights Act 42 U.S.C. § 24 2000e et seq., as well as under various Puerto Rico statutes, seeking redress from 25 the defendants, UNICCO Service Company, ( UNICCO ), Unilever de Puerto Rico, 26 Inc., ( Unilever ), William Ocasio, and Juan C. RodrÃguez, for conduct in the 27 28 workplace constituting of sexual harassment, employment discrimination by 1 CIVIL 07-1880 (DRD) 2 2 3 4 5 reason of age, sex and gender, retaliation for engaging in a protected activity, and for slandering Agapito SÃ¡nchez-Medina ( Mr. SÃ¡nchez ) and torts. (Docket No. 6 7 16, at 1, ¶ 1.) 8 On December 21, 2007, pursuant to the provisions of Rules 26, 33, 34 and 9 36 of the Federal Rules of Civil Procedure, the plaintiffs sent their First Set of 10 Interrogatories to the defendants. (See Plaintiffs First Set of Interrogatories.) 11 12 On May 6, 2009, the defendants received notice of Plaintiffs Supplemental Set 13 of Interrogatories . 14 defendants were notified of Plaintiffs First Request to Admit Facts . (See Exhibit 15 No. 2.) The defendants then notified their Answer to Plaintiffs Supplemental Set 16 (See Exhibit No. 1.) Thereafter, on July 21, 2009, the of Interrogatories on August 4, 2009. (See Exhibit No. 4.) 17 18 On August 6, 2009, the plaintiffs made objections to some of the 19 defendants answers to the supplemental set of interrogatories stating that they 20 were unresponsive and frivolous. The plaintiffs interrogatories required, among 21 other things, that the defendants produce information regarding the name, age, 22 23 position and seniority of the UNICCO employees working at Puerto Rico, and/or 24 supervisory positions, as well as those employees that worked at UNICCO, both 25 before and after Mr. SÃ¡nchez termination. 26 27 28 (See Plaintiffs First Set of Interrogatories Nos. 24 & 25; and Request for Production of Documents No. 22; 1 CIVIL 07-1880 (DRD) 3 2 3 4 5 and Plaintiffs Supplemental Set of Interrogatories.) However, according to the plaintiffs the defendants failed to: 6 7 (1) Identify the managerial and supervisory positions that were available at Puerto Rico, before and after plaintiff s termination, and the name, age, and seniority of the persons occupying the same. (2) Provide a list with the names, position, age and seniority of UNICCO s employees at Puerto Rico, before and after plaintiff s termination. (3) Provide a list with the names, age, seniority, and position of its employees that worked at UNILEVER, and were reassigned to another facility as an alternative to their termination, after plaintiff s termination. (4) Provide a list with the name, age, position and seniority of defendant s employees occupying a supervisory or managerial position, at UNICCO s operations in the United States. 8 9 10 11 12 13 14 15 16 17 18 On August 19, 2009, the plaintiffs were informed by the defendants that 19 they did not have a list of all available positions, and that there were no 20 supervisory positions available at the time Mr. SÃ¡nchez was terminated from his 21 employment and at the time the contractual relationship between UNICCO and 22 23 Unilever had ceased. The defendants only provided a list of new hires from 24 January 1, 2006, to December 31, 2008. 25 defendants 26 answer was not The plaintiffs thus argue that the responsive. (See Answers to Objected Interrogatories Nos. 1, 2, and 9 of the letter dated August 19, 2009.) According 27 28 to the plaintiffs the information they requested is extremely relevant. The 1 CIVIL 07-1880 (DRD) 4 2 3 4 5 plaintiffs claim that after Mr. SÃ¡nchez was terminated from his employment he informed UNICCO that he was willing to accept any other position at any other 6 7 facility in Puerto Rico, or in the United States but was informed that no positions 8 were available for him. The plaintiffs claim that despite of this, after Mr. SÃ¡nchez 9 was discharged, UNICCO made various relocation offers to other younger 10 employees who had less experience and seniority. According to the plaintiffs, 11 12 Mr. RadamÃ©s Rivera ( Mr. Rivera ) received an e-mail from a human resources 13 representative of UNICCO asking him for resumes from UNICCO employees. The 14 plaintiffs believe that the information it requests is neither overly broad nor 15 burdensome, since they claim it is information that the defendants must have 16 available in order to be able to run their day to day operations. Furthermore, 17 18 plaintiffs contend that UNICCO had a practice and policy for relocating employees 19 that were going to be affected due to termination of a contract and/or due to a 20 reduction in force, to any other position occupied by an employee with lesser 21 seniority. It is because of this that the plaintiffs requested the information and 22 23 documents described. 24 The defendants in turn argue that in their Answer to Plaintiff s First Request 25 to Admit Facts , which was notified to the plaintiffs on August 21, 2009, they 26 denied having a relocation policy applicable to all employees affected in a 27 28 reduction in force and/or a cancellation of a contract. (See Exhibit No. 7.) The 1 CIVIL 07-1880 (DRD) 5 2 3 4 5 defendants further claim that plaintiffs request was overly broad and burdensome. (See Exhibit No. 8, Letter from attorney Escanellas dated 6 7 September 1, 2009 & Exhibit No. 9, Letter from attorney RamÃrez dated 8 September 3, 2009.) Also, the defendants informed plaintiffs that they did not 9 understand the relevance of their request for information related to supervisory 10 positions UNICCO may have had outside of Puerto Rico, since UNICCO did not 11 12 have a transfer policy for employees that are laid off as a result of the termination 13 of the contractual relations between UNICCO and their clients. (See Exhibit 10, 14 Letter from attorney RamÃrez dated October 1, 2009.) As to the e-mail that 15 plaintiffs claim was sent to Mr. Rivera, the defendants claim that despite their 16 requests it was never produced. (See Exhibit No. 5, E-mail from attorney RamÃrez 17 18 19 20 21 dated August 11, 2009 & Exhibit No. 11, E-mail from attorney RamÃrez dated October 13, 2009.) According to the defendants, the only e-mail that related to resumes of UNICCO employees being sent was an e-mail sent by Mr. Rivera to Mr. Adalberto 22 23 Charnichart and Mr Guido Herrera, both employees of Johnson Control. (See 24 Exhibit 5, E-mail from attorney RamÃrez dated August 11, 2009.) The defendants 25 claim that the information requested by the plaintiffs cannot be produced because 26 all available management positions are reported to UNICCO s Human Resources 27 28 ( HR ) headquarters. According to the defendants, all positions, including 1 CIVIL 07-1880 (DRD) 6 2 3 4 5 Mr. SÃ¡nchez , which are not management positions, are not reported to UNICCO s HR headquarters. The defendants thus claim that no report can be generated by 6 7 UNICCO that would illustrate available supervisory positions UNICCO may have 8 had outside of Puerto Rico. In sum, the defendants argue that the information 9 sought by plaintiffs is overly broad, burdensome and completely irrelevant. 10 II. ANALYSIS 11 Rule 33 (b)(3) of the Federal Rules of Civil Procedure states: Each 12 13 interrogatory must, to the extent it is not objected to, be answered separately and 14 fully in writing under oath. Fed. R. Civ. P. 33 (b)(3). Rule 33(b)(4) reads in 15 part: 16 The grounds for objecting to an interrogatory must be stated with specificity. . . . Fed. R. Civ. P. 33(b)(4). Nevertheless, 17 18 19 20 21 22 23 24 25 26 [a] defendant is not . . . obligated to perfect a plaintiff s litigating strategy by pointing out potential causes of action that the plaintiff has neglected to bring. Nor is a party required to make heroic exertions to divine the intent of an opaque, ambiguous, or clumsily worded discovery request. But the spirit of the Civil Rules requires that a party be responsive, complete, and forthcoming in its answer . . . . Cf. Fusco v. General Motors Corp., 11 F.3d 259, 265 (1st Cir. 1993). Steir v. Girl Scouts of the USA, 383 F.3d 7, 14 (1st Cir. 2004). Many cases suggest that when the answers as a whole disclose a conscientious endeavor to understand the questions and to answer fully those 27 28 questions as are proper, the rule has been satisfied. See 8A Charles Allan 1 CIVIL 07-1880 (DRD) 7 2 3 4 5 Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2177 (2d ed.1994). Accordingly, and consistent with the goal that discovery 6 7 8 9 10 11 12 13 provide the parties with all relevant information, [t]he party resisting production bears the burden of establishing lack of relevancy or undue burden. . . . [T]he mere statement by a party that the interrogatory [or request for production] was overly broad, burdensome, oppressive and irrelevant is not adequate to voice a successful objection. . . . On the contrary, the party resisting discovery must show specifically how . . . each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive. 14 15 St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 511-12 (N.D. 16 Ia. 2000) (citations omitted); see GuzmÃ¡n v. Irmadan, Inc., 249 F.R.D. 399, 400- 17 01 (S.D. Fla. 2008). 18 In this case the plaintiffs are seeking information about general company 19 20 practices in order to demonstrate a pattern of discriminatory conduct on the part 21 of UNICCO. In this type of case, it has been found that, [p]laintiff[s] should be 22 permitted to show that defendants' past practices manifest a pattern of . . . 23 discrimination. Briddell v. Saint Gobain Abrasives Inc., 233 F.R.D. 57, 59 (D. 24 Mass. 2005) (quoting Jackson v. Harvard, 111 F.R.D. 472, 475 (D. Mass. 1986). 25 26 Here, plaintiffs are requesting information of all supervisory positions 27 available at all UNICCO accounts in Puerto Rico and in the United States which 28 1 CIVIL 07-1880 (DRD) 8 2 3 4 5 Mr. SÃ¡nchez may have occupied. The defendants have objected plaintiffs request because to their understanding it is overly broad, burdensome and irrelevant. 6 7 8 9 10 11 12 13 14 15 16 Interrogatory number 8 from Plaintiffs Supplemental Set of Interrogatories reads as follow: State and describe any and all positions within defendants organization, which the plaintiff could have occupied as an alternative to his termination. State and describe in detail, which of these positions were offered to the plaintiffs. If the defendants did not offered any of these positions to the plaintiff, state each and every reason as to why it was not offered to the plaintiff. Provide copies of any and all documents that sustain your answers. In their Answer to Plaintiff s Supplemental Set of Interrogatories , the defendants objected plaintiffs request arguing that it was overly broad and that 17 18 they could not account for other positions at other UNICCO accounts. (See Exhibit 19 No. 3, Answer to Interrogatory No. 8.) Plaintiffs responded by stating that the 20 defendants answer was not responsive and was frivolous. The defendants then 21 informed plaintiffs that there were no supervisory positions available in any other 22 23 UNICCO account in Puerto Rico at the time of the end of the contractual 24 relationship between UNICCO and Unilever. Also, and even though the defendants 25 informed plaintiffs that they did not have a list of all available positions, they gave 26 plaintiffs a table containing information on the new hires to the positions that were 27 28 available from January 1, 2006 until December 31, 2008. (See Exhibit No. 7.) 1 CIVIL 07-1880 (DRD) 9 2 3 4 5 The plaintiffs, unpleased with the defendants answer, objected by stating that the defendants only provided information regarding the supervisory positions 6 7 available at the UNICCO s accounts in Puerto Rico and that they failed to produce 8 information regarding any and all supervisory positions available at the UNICCO s 9 accounts, not only in Puerto Rico, but also in the United States. (See Exhibit No. 10 8.) The defendants opposed plaintiffs request by stating that it was overly broad 11 12 and burdensome. (See Exhibit No. 9, Letter from attorney RamÃrez dated 13 September 3, 2009.) The defendants later communicated to plaintiffs that they 14 did not understand the relevance of their request for information related to 15 supervisory positions UNICCO may have had outside of Puerto Rico, since UNICCO 16 did not have a transfer policy for employees that were laid off as a result of the 17 18 termination of the contractual relationship between UNICCO and its clients. The 19 defendants argue that Act 80 did not provide bumping rights for employees that 20 cease in a position as a result of a cessation of operations, and that the 21 information requested was for positions outside Puerto Rico s jurisdictional limits. 22 23 The defendants answer to plaintiffs interrogatory is inadequate. The 24 defendants have not shown that plaintiffs interrogatory is neither irrelevant nor 25 overly broad. 26 Even though open-ended reviews of a company s corporate records is not viewed favorably, evidence concerning a pattern of behavior is 27 28 relevant to discrimination claims such as the ones asserted in this case. Plaintiffs 1 CIVIL 07-1880 (DRD) 10 2 3 4 5 requested information related to the supervisory positions UNICCO may have had outside of Puerto Rico, because according to them relocation offers were made by 6 7 UNICCO to other younger employees who had less experience and seniority than 8 Mr. SÃ¡nchez. Thus, since defendants have failed to show otherwise, the 9 information requested by the plaintiffs is relevant. Also, even though plaintiffs 10 may have not explicitly limited their request to a specific time frame, it can be 11 12 inferred that the information sought by them was limited to the time that 13 Mr. SÃ¡nchez was terminated from his employment. The fact that the defendants 14 may have indicated to the plaintiffs that they did not understand the relevancy of 15 the information requested does not mean that they were able to adequately voice 16 a successful objection. The defendants are the ones who bear the burden of 17 18 establishing the lack of relevancy of the information requested or undue burden 19 imposed on them as a result of plaintiffs request. Although the defendants in 20 essence argue that UNICCO does not have a transfer policy for employees that 21 were laid off as a result of the termination of the contractual relationship between 22 23 24 25 26 UNICCO and its clients, it does not mean that the information requested by the defendants is irrelevant. The defendants also contend that the evidence requested by the plaintiffs cannot be produced because all available management positions are reported to 27 28 UNICCO s HR headquarters. According to the defendants all other positions such 1 CIVIL 07-1880 (DRD) 11 2 3 4 5 as the one held by Mr. SÃ¡nchez are not reported. The defendants argument however does not show that plaintiffs request is either overly broad or 6 7 burdensome. In fact it is [UNICCO s] own record keeping policies which have 8 contributed significantly to the burden imposed on it. Briddell v. Saint Gobain 9 Abrasives Inc., 233 F.R.D. at 61. 10 Courts have been loathe to reward (and possibly encourage) poor record keeping by shielding companies with inefficient 11 12 recording methods from discovery. Id. Furthermore, the defendants have also 13 failed to show that all of the other information which was requested by the 14 plaintiffs but was not produced, was either irrelevant, overly broad or 15 burdensome. Therefore, the defendants may not resist discovery and are directed 16 to produce the information sought by the plaintiffs. 17 III. CONCLUSION 18 Therefore, in view of the of the above the defendants are hereby directed 19 20 21 to: (1) Identify the managerial and supervisory positions that were available at Puerto Rico, before and after plaintiff s termination, and the name, age, and seniority of the persons occupying the same before and after plaintiff s termination. (2) Provide a list with the names, age, seniority, and position of its employees that worked at UNILEVER, and were reassigned to another facility as an alternative to their termination, after plaintiff s termination. 22 23 24 25 26 27 28 1 CIVIL 07-1880 (DRD) 12 2 3 4 5 (3) Provide a list with the name, age, position and seniority of defendant s employees occupying a supervisory or managerial position, at UNICCO s operations in the United States. 6 7 As to plaintiffs they are ordered to produce to the defendants any e-mail or 8 communication, in their possession, from UNICCO s HR representatives which 9 might make reference to available positions in other UNICCO accounts in the 10 United States. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At San Juan, Puerto Rico, this 30th day of November, 2009. S/ JUSTO ARENAS Chief United States Magistrate Judge

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