United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION
TO COMPEL DEFENDANTS TO RESPOND TO AND PRODUCE DOCUMENTS
RESPONSIVE TO PLAINTIFF'S FIRST SETS OF DISCOVERY
REQUESTS (DKT. NO. 40)
KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE.
employment discrimination action brought pursuant to Title
VII of the Civil Rights Act of 1964 and Title I of the Civil
Rights Act of 1991, Plaintiff, the Equal Employment
Opportunity Commission ("EEOC"), asserts claims on
behalf of Stephanie Clarke. The complaint alleges that Ms.
Clarke's employment at Baystate Medical Center
("BMC") and Baystate Health Systems
("BHS") (collectively "Defendants") was
terminated after she declined Defendants' free influenza
vaccination on the grounds of her religious beliefs and
claimed she was unable to perform the duties of her job
adequately while wearing a mask.
the court is the EEOC's motion to compel answers to
Interrogatory Nos. 3, 4, and 5, which were served on
Defendants pursuant to Fed.R.Civ.P. 33(a). The EEOC further
seeks to compel defendants to produce documents in response
to its Rule 34 request numbers 13, 16, 17, 18, 19, 20, 21,
22, 38, 39, 40, 41, and 44 (Dkt. No. 40). See Fed.
R. Civ. P. 37(a)(3)(B). Defendants have objected to
EEOC's requests on various grounds.
hearing and for the following reasons, Plaintiff's motion
to compel is ALLOWED to the extent described herein.
Allegations in the Amended Complaint
following brief summary of the allegations in the case is
provided as background for the discussion of the parties'
discovery disputes. Defendants have maintained an influenza
immunization policy that requires "all of
Defendants' employees, active physicians, contracted
personnel, students, volunteers and vendors [hereinafter
collectively "employees" or "personnel"]
working at all of Defendants' facilities to receive a flu
vaccination annually" (Dkt. No. 10 at ¶ 12(a)).
Defendants' policy says that "any employee who
declines to be vaccinated, for any reason, is required to
wear a mask at all times while working at Defendants'
facilities" (id. at ¶ 12(b)). Employees
who fail to comply with Defendants' influenza policy are
placed on unpaid leave until the individual either complies
with the policy or flu season ends (id. at ¶
12(c)). The employee's job is not protected during the
unpaid leave (id.).
December 2014, Defendants hired Ms. Clarke as a talent
acquisition consultant in BMC's human resources
department (id. at ¶ 12(d)). Ms. Clarke did not
have patient contact nor did she work in areas of BMC where
patients were seen and treated (id. at ¶ 12(e),
(f)). Ms. Clarke "is an adherent of the Christian
faith" who, since 2007, has believed that "her body
is a temple" and, accordingly, has rejected
"injections of any kind, as well as drugs and
vaccines" (id. at ¶ 12(g)). In November
2015, Ms. Clarke completed a form notifying Defendants that
she was declining the influenza vaccine on religious grounds
(id. at ¶ 12(i)). Defendants provided her with
a mask and instructed her to wear it at all times while
working (id.). Ms. Clarke began wearing the mask at
work on or about November 2, 2015 (id. at ¶
12(j)). Because those to whom Ms. Clarke spoke, both in
person and over the telephone, complained that they were
unable to understand her while she wore the mask, she pulled
the mask down and away from her mouth "on several
occasions" while she spoke (id.). She wore her
mask when she was not speaking (id. at ¶ 12(k).
Ms. Clarke notified Defendants of the mask's interference
with her ability to communicate effectively (id. at
about November 19, 2015, Ms. Clarke was suspended without pay
and without job protection because her supervisor had
observed her not wearing the mask over her nose and mouth
(id. at ¶ 12(m)). Ms. Clarke complained about
religious discrimination and requested an accommodation to
the vaccine policy that would not interfere with her ability
to perform her job effectively (id. at ¶
12(n)). In response to the Senior Vice President of Human
Resources' notification that she could not return to work
unless she was vaccinated or agreed to wear the mask at all
times, Ms. Clarke indicated via e-mail that she declined
vaccination and was not able to perform her job adequately
while wearing a mask (id. at ¶ 12(o)). On
December 4, 2015, Defendants notified Ms. Clarke that they
interpreted her message as a resignation effective
immediately, and terminated her employment (id. at
¶ 12(p)). Defendants further indicated that she was not
eligible for re-hire (id. at ¶ 12(r)).
EEOC alleges that Defendants discriminated against Ms. Clarke
on the basis of her religion, retaliated against her because
of her complaints of religious discrimination, and seeks
damages on her behalf (id. at 7). In addition, it
seeks equitable relief based on the allegations of religious
discrimination and retaliation (id. at 7-8).
Legal Standards for Discovery
EEOC seeks to compel Defendants to produce discovery to
support its Title VII and Title I claims. Federal Rule of
Civil Procedure 26(b)(1) provides in pertinent part:
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.
party seeking information in discovery over an
adversary's objection has the burden of showing its
relevance." Caouette v. Officemax, Inc., 352
F.Supp.2d 134, 136 (D.N.H. 2005). "This burden is not
onerous." Aronstein v. Mass. Mut. Life Ins.
Co., Civil Case No. 15-12864-MGM, 2017 WL 2818993, at *2
(D. Mass. June 29, 2017). "Relevance under Rule 26(b) is
broadly defined, 'although it is not without
"ultimate and necessary boundaries."'"
Ogden v. Bumble Bee Foods, LLC, 292 F.R.D.
620, 622 (N.D. Cal. 2013) (quoting Gonzales v. Google,
Inc., 234 F.R.D. 674, 680 (N.D. Cal. 2006)); see
also Fed. R. Civ. P. 26(b)(2)(C). "Once the
possibility of relevance is shown, the burden shifts to the
party opposing disclosure to show that the discovery is
improper." Aronstein, 2017 WL 2818993, at *2
(citing Diaz-Padilla v. Bristol Myers Squibb Holding Ltd.
Liab. Co., Civil No. 04-1003(PG/GAG), 2005 WL 783076, at
*2 (D.P.R. Apr. 4, 2005)); see also BPP Retail Props.,
LLC v. N. Am. Roofing Servs., Inc., 300 F.R.D. 59, 61
(D.P.R. 2014) ("The party resisting discovery has the
burden of showing 'specifically how each interrogatory is
not relevant or how [the request at issue] is overly broad,
burdensome, or oppressive.'") (quoting
Vázquez-Fernández v. Cambridge Coll.,
Inc., 269 F.R.D. 150, 155-56 (D.P.R. 2010)).
order to determine what discovery is relevant to the
EEOC's claims, it is necessary to understand what it is
required to prove. "Title VII of the Civil Rights Act of
1964 prohibits an employer from discriminating against any
employee on the basis of religion." Robinson v.
Children's Hosp. Bos., Civil Action No.
14-10263-DJC, 2016 WL 1337255, at *5 (D. Mass. Apr. 5, 2016),
appeal dismissed sub nom. Robinson v. Children's
Hosp. of Bos., No. 16-1495 (1st Cir. Feb. 23, 2017)
(citing 42 U.S.C. § 2000e-2). For purposes of Title VII,
religion includes "all aspects of religious observance
and practice, as well as belief, unless an employer
demonstrates that he is unable to reasonably accommodate to
an employee's . . . religious observance or practice
without undue hardship on the conduct of the employer's
business." 42 U.S.C. § 2000e(j). "'Thus,
in general terms, Title VII requires employers . . . to
accommodate, within reasonable limits, the bona fide
religious beliefs and practices of employees.'"
Sánchez-Rodríguez v. A. T. & T.
Mobility P.R., Inc., 673 F.3d 1, 12 (1st Cir. 2012)
(quoting E.E.O.C. v. Unión Independiente de la
Autoridad de Acueductos y Alcantarillados de P.R., 279
F.3d 49, 55 (1st Cir. 2002)). The EEOC advances its
employment discrimination claims under three theories based
on Ms. Clarke's religious beliefs: (1) disparate
treatment; (2) failure to accommodate; and (3) retaliation
(Dkt. No. 10 at 7). Though each of these theories of
employment discrimination requires proof of different
elements, see, e.g., Sánchez-Rodríguez v.
AT & T Mobility Puerto Rico, Inc., 673 F.3d 1, 12-13
(1st Cir. 2012); Kosereis v. Rhode Island, 331 F.3d
207, 212-13 (1st Cir. 2003), the "'ultimate
touchstone'" of the analysis under all three
theories is "whether the employer's actions were
improperly motivated by discrimination."
Kosereis, 331 F.3d at 213-14 (quoting Fite v.
Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir. 2000)).
have declined to answer Plaintiff's interrogatories and
requests to produce documents that seek: (A) so-called
comparator information; (B) material concerning
Defendants' affirmative defenses; and (C) information
concerning Defendants' influenza immunization and
teleworking policies. These requests and Defendants'
objections thereto will be discussed in turn.
The EEOC's Requests Seeking Comparator Information
(Interrogatory Nos. 3, 4, and 5 and Document Request Nos. 38,
39, 40, and 41).
an employer's discriminatory motive or pretext may be
proved by evidence demonstrating that a plaintiff "was
treated differently from other similarly situated employees,
" Kosereis, 331 F.3d at 214,
"'[d]iscovery is frequently sought regarding
similarly situated employees.'" Moreno
Rivera, 272 F.R.D. at 54 (citation omitted).
"Courts have generally found such requests valid, so
long as the breadth and scope are reasonably related to the
party alleging discrimination." Id. at 54-55.
See Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20
(1st Cir. 1999) ("[R]easonableness is the
touchstone" in determining whether comparative evidence
shows that other employees are similarly situated to the
plaintiff. The comparison cases need not exactly mirror the
plaintiff's case, but the cases must be closely analogous
with regard to the relevant facts and circumstances.);
Perkins v. Brigham & Women's Hosp., 78 F.3d
747, 751 (1st Cir. 1996) (to offer comparative evidence at
trial, the plaintiff must show that "the individuals
with whom he seeks to be compared have 'engaged in the
same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the
employer's treatment of them for it'") (quoting
Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th
party seeks to discover information that implicates the
privacy concerns of non-parties, "[t]he court, in
deciding whether or not to allow discovery of certain
information, balances Fed.R.Civ.P. 26(b)(1), 'which
allows discovery relating to any relevant, non-privileged
information, ' and broader discovery upon a showing of
'good cause, ' against the privacy interests of
nonparties to the dispute." McEvoy v. Hillsborough
Cty., Civ. No. 09-cv-431-SM, 2011 WL 1813014, at *6
(D.N.H. May 5, 2011). See O'Neil v. Q.L.C.R.I.,
Inc.,750 F.Supp. 551, 556 (D.R.I. 1990). Compare
Whittingham v. Amherst Coll.,164 F.R.D. 124, 127-28 (D.
Mass. 1995) (denying plaintiff's motion to compel
production of personnel files based on plaintiff's