FOR THE UNITED STATES DISTRICT COURT FOR THE WESTERN ... · 3/22/2012 · Case 2:10-cv-01283-NBF...

FOR THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUDOLPH A. KARLO, MARK K. MCLURE, WILLIAM S. CUNNINGHAM, JEFFREY MARIETTI, DAVID MEIXELSBERGER, BENJAMIN D. THOMPSON and RICHARD CSUKAS, on behalf of themselves and all others similarly situated,

Plaintiffs, vs.

PITTSBURGH GLASS WORKS, LLC, Defendant.

))))))))))))))

Civil Action No. 10-1283 Honorable Nora Barry Fischer ELECTRONICALLY FILED

DEFENDANT PITTSBURGH GLASS WORKS’

RESPONSE BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL

Plaintiffs’ motion to compel can be distilled into a single question: does Plaintiffs’ case

regarding alleged discrimination in a reduction-in-force that took place in March 2009 entitle

them to also litigate an unrelated reduction-in-force occurring more than two years later in

October 2011? The answer is no. And the reasons are straightforward. First, discovery into the

October, 2011 reduction-in-force is not relevant to Plaintiffs’ claims because the October, 2011

reduction-in-force had no impact on the termination decisions affecting Plaintiffs. Second,

discovery into the October, 2011 reduction in force is unduly burdensome. Indeed, the parties

have spent over a year taking discovery related to the March 31, 2009 reduction-in-force. PGW

has produced thousands of documents, and dozens of employees for depositions. At this point in

the litigation, opening discovery into the termination decisions related to the October, 2011

reduction-in-force is tantamount to adding an entire equally-sized case to this matter. If

Plaintiffs are allowed to delve into such a completely separate and unrelated topic which has no

bearing on Plaintiffs’ claims, discovery can be expected to proceed for another year (or more)

Case 2:10-cv-01283-NBF Document 163 Filed 03/13/12 of 15

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just on matters related to the October, 2011 reduction-in-force; Plaintiffs are likely to inundate

this case with accusations and unwarranted alleged inferences that they claim can be drawn from

the 2011 reduction; and, as Plaintiffs have already suggested in their motion, they will seek to

expand this case to include parties and claims relating only to the 2011 reduction-in-force.

Discovery is not a fishing expedition where Plaintiffs’ attorney is permitted to troll for new

plaintiffs and claims. Thus, for these reasons, discussed more fully below, this Court should

deny Plaintiffs’ motion to compel.

BACKGROUND

Given that this case has been fully briefed on the merits of Plaintiffs’ disparate impact

and class certification claims, PGW will not burden the Court with yet another detailed

discussion of the Plaintiffs’ claims. Suffice it to say that this entire litigation stems from a

reduction-in-force that occurred at PGW on March 31, 2009 – a reduction-in-force that was

carried out to save the company as it battled an unprecedented downturn in the automotive

industry. Plaintiffs claim that they were terminated on the basis of the their age, and that the

termination decisions had a disparate impact on the protected class of employees under the Age

Discrimination in Employment Act (“ADEA”). Discovery to date, however, has revealed that

there is absolutely no basis for the claim of age discrimination. Plaintiffs, in fact, have not been

able to uncover any evidence of a statistically significant disparate impact on the protected class

or that any of them were actually replaced by another worker who was actionably younger than

them. Indeed, this request appears to be a last minute effort to gather evidence on a failing or

already failed claim

Plaintiffs filed their claim for age discrimination against PGW on September 9, 2010.

(See Dkt. 1.) After the Case Management Conference held by the Court on February 7, 2011,

fact discovery commenced and has been ongoing for over a year. (See Dkt. 47.) Since that time,


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PGW conducted an expansive and costly search and review for potentially responsive materials,

including reviewing thousands of documents gathered from dozens of custodians. To date, PGW

has produced over 11,000 pages of production documents and an additional four hundred native

computer files. Moreover, PGW has presented for deposition dozens of current and former PGW

employees and contractors. More depositions remain on the schedule and, as recent as last week,

Plaintiffs requested three additional depositions.

Despite the volumes of information provided to Plaintiffs, Plaintiffs served additional

interrogatories and document requests on PGW on February 2, 2012. (See 2/2/2012 E-mails

from Bruce Fox, attached as Group Exhibit A.) While Plaintiffs’ interrogatories clearly

exceeded the number limitation prescribed under the Federal Rules of Civil Procedure and the

Court’s case management order, PGW nevertheless, acting in good faith, consented to the service

of the extra interrogatories. Plaintiffs’ new discovery requests sought information not only

regarding the October 2011 reduction-in-force, but also: (1) information related to James

Wiggins ownership interests in other companies; (2) information about companies other than

PGW that were owned, in part, by one of the major shareholders in PGW and another unrelated

entity; (3) PGW’s financial information from November 1, 2008 to present; and, (4) e-mails

between James Wiggins and representatives of shareholders in PGW. As discussed below, the

parties amicably resolved the majority of the issues relating to these other requests.

From the start, PGW’s main objections to Plaintiffs’ interrogatories revolved around the

issue of the 2011 reduction-in-force. Plaintiffs requests are numerous and extensive and seek as

much information as Plaintiffs have sought (and obtained without objection) about the people

and documents involved in the 2009 reduction-in-force, which is the subject of this matter. The

breadth of their requests are completely over the top. Even when plaintiffs listed the discovery


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At the Court hearing on February 24, 2012, Plaintiffs claimed that they would initially

like to obtain any RIF guidelines that were used in the 2011 reduction-in-force, the

decisional-unit matrix utilized in that reduction-in-force, all RIF matrices utilized in the 2011

reduction-in-force, and any disparate impact analysis that may have been performed in the 2011

reduction-in-force. When asked if that information would end the issue, Plaintiffs candidly

informed the Court that it would not and that Plaintiffs would reserve their rights to conduct

further discovery into the decisions involved in the 2011 reduction-in-force. PGW explained that

Plaintiffs had asked questions at depositions about the 2011 reduction-in-force and that witnesses

had been forthcoming with answers. PGW, however, stood firm on its refusal to answer the

extensive discovery sought by Plaintiffs. In the end, Plaintiffs apparently determined that they

wish to seek the Court to compel production of all information regarding the 2011 reduction.

The information Plaintiffs have requested does not relate to any claim in this case, and

Plaintiffs at most resort to platitudes and exaggeration in an effort to suggest there is a relation.

In the end, however, Plaintiffs’ motion to compel spends a majority of its 15-pages complaining

that PGW’s objections are “boilerplate” and then citing inapposite legal authority. On the

contrary, as described above, PGW has articulated very specific objections and concerns

regarding the requested discovery to Plaintiffs during and after their meet-and-confer. Plaintiffs’

arguments do not bear scrutiny, and, as explained more fully below, their motion should be

denied.


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ARGUMENT

I. The October 2011 Reduction-In-Force Is Not Relevant To Plaintiffs’ Claims.

The party seeking to compel discovery has the initial burden of showing that the

information sought is “clearly relevant.”1 See Porter v. Beard, No. 09-549, 2009 WL 3805797, at

*1 (W.D. Pa. Nov. 12, 2009) (“The party seeking the order to compel must demonstrate the

relevance of the information sought”). In an age discrimination claim context, relevant

information is that which “sheds light on how, within the corporation, th[e] employment decision

was made.” Finch v. Hercules, 149 F.R.D. 60, 64 (D. Del. 1993).2 Furthermore, under either a

disparate treatment or disparate impact theory of liability, discovery requests “must be limited in

scope in accordance with Fed. R. Civ. P. 26(b)(1) and tied to the allegations of plaintiff’s

complaint.” Id. at 66.

Plaintiffs’ Motion to Compel is little more than a veiled attempt to fish for a future cause

of action against PGW based on a completely separate reduction-in-force. Plaintiffs seek vast

discovery of information related to the October, 2011 reduction-in-force. But, Plaintiffs’ Motion

admits that these requests are not related to claims in this matter, but instead are “targeted . . . at

identifying whether employees [in the 2011 reduction-in-force] have similarly been subjected to

. . . potentially discriminatory conduct and/or expressed or revealed age bias.” (Mot. at 9.) No

1 See also McLain v. Mack Trucks, Inc., 85 F.R.D. 53, 57 (E.D. Pa. 1979) (“the party seeking discovery has the burden of showing clearly that the information sought is relevant to the subject matter of the action and would lead to admissible evidence”); Miller v. Hygrade Food Products Corp., 89 F. Supp. 2d 643, 657 (E.D. Pa. 2000) (“The scope of discovery, however, is not without its limits and is committed to the sound discretion of the trial court. The party seeking the discovery has the burden of clearly showing the relevancy of the information sought”) (internal citations and quotations omitted); 2 PGW believes, and has argued in briefs and before the Court, that the Finch court (865 F. Supp. 1104 (D. Del. 1994)) took an unprecedented and overly broad approach to disparate impact and conflated the standards for disparate impact and disparate treatment claims. (See Dkt. 135 at 7-9; Dkt. 142 at 14.) Nevertheless, even the Finch court did not allow the type of overly expansive discovery that Plaintiffs seek here.


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one in this case was terminated in the 2011 reduction-in-force and Plaintiffs present nothing to

articulate why they seek this discovery relates to the present Plaintiffs claims. That is because

there is no reasonable link. Moreover, there has not been a single claim filed against PGW based

on the 2011 reduction-in-force. Accordingly, Plaintiffs’ motion should be denied.

This is consistent with Court’s determinations regarding cases involving reductions-in-

force that have held that “[a] vague possibility that loose and sweeping discovery might turn up

something suggesting that the structuring of the RIF was discriminatorily motivated does not

show particularized need and likely relevance that would require moving discovery beyond the

natural focus of the inquiry.” Kresefky v. Panasonic Comm. & Sys. Co., 169 F.R.D. 54, 64-65

(D.N.J. 1996), quoting Earley v. Champion Int’l Corp., 907 F.2d 1077, 1085 (11th Cir. 1990).

Discovery of relevant information in age discrimination claims is limited to issues regarding the

employment decision that affected the plaintiff(s) in the case. In Earley v. Champion Int’l Corp.,

907 F.2d 1077, 1084-1085 (11th Cir. 1990), a group of employees who were terminated in a

reduction-in-force brought an age discrimination claim against their former employer. The court

upheld a denial of nationwide company discovery, reasoning that discovery should be limited to

the “the employing unit.” The court found that discovery should be limited because, although

the reduction-in-force “was initiated at the national level, each plant was given considerable

autonomy in drawing up its own RIF master plan.” Id. at 1084. As a result, discovery into

reductions-in-force at other plants was not relevant to the plaintiffs’ claims. Similarly, the court

in Finch v. Hercules, 149 F.R.D. 60, 64 (D. Del. 1993)3, addressed a time limitation for

discovery of information in an age discrimination claim. There, the court limited discovery to “a

reasonable time period before the discrimination,” which the court ultimately determined to be

3 See note 2.


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two years prior to plaintiff’s termination. Id. Under the rationale of Earley and Finch, PGW has

been more than cooperative in providing discovery and Plaintiffs should not be permitted to

continue their attempts to extend it to a separate, later reduction-in-force that occurred years after

their terminations. Plaintiffs fail to explain in any way how a later-occurring decision could have

any effect on their claim that their termination decisions were based on discrimination.

Indeed, Plaintiffs have failed to demonstrate how discovery related to an employment

decision made by different management more than two and half years after the employment

decision which affected their employment is relevant to their claims. Plaintiffs argue that they

need discovery regarding PGW’s RIF procedure to support their “disparate impact” claims,

because such discovery is “centrally relevant to whether the pre-existing highly subjective

procedures (or lack thereof) utilized by PGW in the earlier RIFs were flawed and could have a

potentially discriminatory effect.” (Plaintiffs’ Motion, Dkt. 159-1 at 8.) Plaintiffs then quote

the inapposite Eleventh Circuit case, United States v. Pollock, 926 F.2d 1044 (11th Cir. 1991),

for the proposition that their discovery requests are not too remote because courts have found

five years of discovery to be appropriate. Pollock does not stand for this proposition.4 Instead,

the Eleventh Circuit (and courts within the Third Circuit) have held that Plaintiffs must show

more than “a vague possibility that loose and sweeping discovery might turn up something.”

Earley, 907 F.2d at 1085 (11th Cir. 1990), quoted by Kresefky, 169 F.R.D. at 64-65 (D.N.J.

1996). Furthermore, as PGW has already briefed extensively in opposition to Plaintiffs’ motion

for class certification and in support of summary judgment, any alleged shortcomings by the

human resources department during the March 2009 reduction-in-force have no bearing on

4 Rather, the court in Pollock was addressing the issue of remoteness with regard to the admissibility of past criminal conduct at trial, which is governed by Federal Rule of Evidence 404(b). Pollock has nothing to do with the proper scope of discovery in a civil matter.


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Plaintiffs’ claims. (See Dkt. 106, at 22-23; Dkt. 126, at 10-13; Dkt. 142, at 16-17.) To the

extent Plaintiffs will attempt to use the October 2011 reduction-in-force to advance an argument

that PGW harbors a corporate culture of discrimination, that argument has been rejected by the

Court in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011). (See id.) Therefore, any such discovery is

irrelevant to Plaintiffs’ claims.

Taking Plaintiffs’ argument at face value (and ignoring its circular reasoning), Plaintiffs’

concerns should have been alleviated when PGW voluntarily agreed to produce the reduction-in-

force guidelines that were in place during the October 2011 reduction-in-force. The fact that

Plaintiffs insist that PGW produce the names and last known addresses and telephones numbers

of every individual terminated in the October 2011 reduction-in-force reveals Plaintiffs’

counsel’s true motive – to contact terminated employees and attempt to institute another lawsuit

against PGW. (See Plaintiffs’ Motion, Dkt. 159-1 at 10.)

Furthermore, to the extent Plaintiffs seek to discover any purported “reformation” steps

taken by PGW, such information is inadmissible (and thus, not relevant or likely to lead to the

discovery of admissible information) as a subsequent remedial measure. The court in

McLaughlin v. Diamond State Port Corp., No. 03-617, 2004 WL 3059543 (D. Del. Dec. 30,

2004) addressed this very issue. There, the court held that plaintiff’s disparate treatment and

pattern-and-practice gender discrimination claims were insufficient as a matter of law. In an

attempt to avoid summary judgment, the plaintiff attempted offered “evidence” of remedial

actions taken by her employer after she filed an EEOC charge to support her pattern-or-practice

claim of discrimination. Rejecting this argument, the court reasoned that:

Just as subsequent remedial measures are generally inadmissible under Fed.R.Evid. 407, a defendant’s attempt to reverse allegedly discriminatory practices should also be inadmissible. It would be perverse indeed if attempts to


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reverse discrimination could be used to condemn a defendant. Such use of evidence would only serve to discourage reform, and the court will not permit it.

McLaughlin, 2004 WL 3059543, at *3. The same is true here. Even if the Court were to accept

Plaintiffs’ argument that PGW engaged in a drastic “reformation” of its reduction-in-force

policies and procedures, such information would be inadmissible as a subsequent remedial

measure, and, as a result, is completely irrelevant.

Plaintiffs’ other argument, that discovery related to the October, 2011 reduction-in-force

is relevant to its pattern-and-practice of age discrimination claim, is similarly unpersuasive. On

the one hand, Plaintiffs’ claim they need evidence of PGW’s “reform efforts” to contrast them

against PGW’s allegedly “pre-existing highly subjective procedures (or lack thereof) utilized by

PGW in the earlier RIFs” to demonstrate how the former RIF procedures were “flawed and could

have potentially discriminatory effect.” (See Plaintiffs’ Motion, Dkt. 159-1 at 8-10.) On the

other hand, Plaintiffs claim that the October, 2011 reduction-in-force may reveal evidence of

“continuing potentially discriminatory conduct.” These positions are clearly contradictory, and

reveal that Plaintiffs have no idea if or why this information is relevant. Indeed, Plaintiffs have

advanced a ‘damned if you do, damned if you don’t’ theory of relevance. Plaintiffs specifically

state that if the 2011 reduction-in-force was done right, it their view, it proves that the March

2009 reduction-in-force was done incorrectly. Plaintiffs further state that if the 2011

reduction-in-force was done wrong, it proves that there is discrimination on an ongoing basis.

Literally, then, as Plaintiffs’ have themselves presented the issue, it doesn’t matter what they will

uncover, as, in their minds at least, it will always prove discrimination. This is precisely the

danger of allowing such far-flung discovery and illustrates precisely why courts regularly refuse

to permit fishing expeditions like Plaintiffs’ seek here. As such, through their own argument,

Plaintiffs have demonstrated that their discovery requests contain the exact type of “loose and


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sweeping discovery” which are not likely to yield relevant evidence. See Kresefky, 169 F.R.D. at

64-65, quoting Earley, 907 F.2d at 1085. This is not enough to require PGW to engage in costly

and time-consuming discovery on matters beyond the “natural focus of the inquiry,” i.e., the

March 31, 2009 reduction-in-force. See id.

At this point in time, the Court has under advisement whether the various nurses,

maintenance men, sales people, and engineers laid-off in March 2009 are sufficiently connected

to this case to justify notice. Plaintiffs’ proposed discovery would extend this claim even further,

to a point never before set out in case law. The Court should keep this case focused on issues

actually in dispute.

II. Discovery Related To October 2011 Reduction-In-Force Is Unduly Burdensome.

Even if the Court was persuaded that information related to the October 2011

reduction-in-force could potentially lead to the discovery of relevant information, any such

relevance is “outweighed by the burdens it would impose upon defendant[].” See Kresefky, 169

F.R.D. at 64. The parties have been conducting discovery solely on matters related to the March

31, 2009 reduction-in-force for over a year. If the Court were to allow Plaintiffs to begin, at this

late stage in these proceedings, discovery on a completely separate reduction-in-force, which

occurred two and half years after Plaintiffs were terminated, the parties will undoubtedly spend

another year (or more) taking discovery on the October, 2011 reduction-in-force. Moreover,

Plaintiffs motion for class certification is still pending, and the parties have not yet begun class

discovery on the March 2009 reduction-in-force, but Plaintiffs are asking the court to commence

class discovery on the October 2011 reduction-in-force. PGW’s counsel would be required to

collect evidence regarding the economic and business circumstances surrounding that

reduction-in-force, interview key witnesses, and employ expert analysis. In addition, Plaintiffs’

requests are so broad that they seek information about the October 2011 reduction-in-force that is


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subject to attorney-client and work product privileges. PGW’s counsel estimates that the costs

for these activities will exceed hundreds of thousands of dollars. (See Declaration of David

Becker, attached as Exhibit C.).

Because the possibility for revealing relevant information related to the October, 2011

reduction-in-force is so remote, and the burden of having to restart the discovery proceedings in

this matter is so great, the Court should deny Plaintiffs’ motion to compel.

III. PGW’s Objections Are Properly Stated and Complete.

Plaintiffs’ spend a majority of their 15-page brief addressing their argument that PGW

failed to state objections properly. Plaintiffs’ argument is without merit. First, PGW’s

discovery responses included specific objections to each of Plaintiffs’ discovery requests.

Second, PGW’s specific objections include and incorporate a reference to the objections raised at

the parties’ meet-and-confer session regarding Plaintiffs’ discovery requests. Indeed, at that

meet-and-confer, which was followed up by an e-mail from counsel for PGW (David Becker) to

counsel for Plaintiffs (Bruce Fox), PGW asserted the following objections with regard to the

October 2011 reduction-in-force discovery requests:

We will not, however, agree to provide the other requested information relating to the 2011 RIF. The 2011 RIF, that took place more than two years after the RIF at issue in this case, is irrelevant to the issues in this matter and we believe providing information regarding that RIF is more aimed at fishing for a future cause of action against PGW by obtaining information about the individuals who were the subject of that RIF than it is aimed at seeking relevant information for this case.

(Exhibit B.) The parties had a detailed discussion, followed up by an e-mail reiterating PGW’s

objections to Plaintiffs’ discovery requests and then a status conference at which PGW told the

court the basis of its objections. Plaintiffs argument that PGW’s objections were insufficient

because they were “boilerplate” are inapposite and disingenuous.


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CONCLUSION

The Court should deny Plaintiffs’ Motion. Allowing Plaintiffs’ to take discovery into the

issues surrounding the October, 2011 reduction-in-force will essentially create an entire new

case, and will ultimately confuse the issues of this litigation. Plaintiffs will attempt to make

improper inferences from the October, 2011 reduction-in-force (regardless of whether or not

Plaintiffs agree that the October, 2011 reduction was conducted properly) and both PGW and the

Court will spend an exorbitant amount of time and resources dealing with issues related to a

completely separate reduction-in-force conducted two and half years after Plaintiffs’

terminations which has no bearing on Plaintiffs’ claims.

Respectfully submitted,

PITTSBURGH GLASS WORKS, LLC

By: /s/Tina C. Mazzulla One of its Attorneys

Jeffrey J. Mayer [email protected] Jennifer L. Fitzgerald [email protected] IL6229243 David S. Becker IL6271932 [email protected] Freeborn & Peters LLP 311 S. Wacker Drive, Suite 3000 Chicago, IL 60606 (312) 360-6000 Robert B. Cottington PA51164 [email protected] COHEN & GRIGSBY, P.C. 625 Liberty Avenue Pittsburgh, PA 15222-3152 (412) 297-4677 (Telephone)


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(412) 209-1906 (Direct Fax) Counsel for Defendant Pittsburgh Glass Works, LLC Dated: March 13, 2012


CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing has been

served upon counsel of record by the Court’s ECF system, this 13th day of March, 2012,

addressed as follows:

Bruce C. Fox, Esq. [email protected]

Beth Fischman, Esq.

[email protected]

Yuanyou Yang, Esq. [email protected]

/s/ Tina C. Mazzulla


FOR THE UNITED STATES DISTRICT COURT FOR THE WESTERN ... · 3/22/2012 · Case 2:10-cv-01283-NBF...

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Transcript of FOR THE UNITED STATES DISTRICT COURT FOR THE WESTERN ... · 3/22/2012 · Case 2:10-cv-01283-NBF...