The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before the court on two motions. The first, filed by Plaintiffs Tami Remien and Debra Fletcher, seeks to compel production of supplemental documents under Rule 26(e) and a 28-day period to conduct any necessary follow-up discovery stemming from any newly produced materials. The second, filed by Defendant EMC Corporation, requests summary judgment on the disparate impact claims set out in the Plaintiffs' Second Amended Complaint. For the reasons set forth below, Plaintiffs' motion is granted in part and denied in part; EMC's motion is granted.
According to the allegations of the Second Amended Complaint, Remien and Fletcher are former employees of EMC. Remien's tenure spanned from February 2001 to December 2003; during that time, she worked as a salesperson for various clients of EMC such as Motorola. Fletcher worked for EMC from October 1999 to July 2003; she was an account representative, a district manager, and a global account manager.
Remien and Fletcher each allege that they were subjected to individualized mistreatment in connection with their jobs. In addition, Plaintiffs describe how EMC sales personnel would frequent strip clubs, use what Plaintiffs perceive to be male-oriented language or behavior in meetings or office events, and use sexually hostile or derogatory comments.
Plaintiffs also contend that EMC engaged in systemic discrimination against women in its sales force by assigning them sales quotas, accounts, and territories that were less favorable than those given to male salespeople as well as excluding them from the company's management pipeline. Plaintiffs advance anecdotes and statistics to support the notion that these practices took place throughout the company and were particularly rampant within the sales force.
Each plaintiff filed a charge with the EEOC on August 13, 2003, alleging sex discrimination and retaliation. Remien's charge contended that EMC had discriminated against her on the basis of her sex in a variety of ways, including preventing her from working on any sales accounts and failing to provide the same support to her career development that it provided to male employees within its Chicago office. She also alleged that EMC engaged in discriminatory behavior toward women throughout its nationwide sales business by failing to promote women and taking sex, pregnancy, or marital and parental status into account when making employment decisions. Fletcher's charge included the same allegations of systemic discrimination as well as assertions that she individually experienced denials of compensation, demotion, and constructive discharge.
After proceedings before the EEOC were completed, Plaintiffs filed the instant suit. In addition to reiterating the allegations pertaining to their individual experience, the complaint contains putative class allegations that EMC violated federal law by discriminating against female employees in their sales offices with respect to compensation, promotion, attrition, and quota assignment. Because of the potential for a class action, the parties have thus far confined their discovery efforts to addressing class issues; under the supervision of the assigned magistrate, they have engaged in extensive fact and expert discovery pertaining to class certification. Of significance to Plaintiffs' current motion to compel, Remien and Fletcher requested EMC to provide all complaints and all documents related to complaints (whether oral, written, formal, or informal) made by or on behalf of any EMC employee relating to any alleged incident of sex discrimination..., sexual harassment, or retaliation for complaining about or otherwise opposing sex discrimination or harassment. Request 10, Plaintiffs' Second Set of Class Discovery Requests (Ex. 7 to Pls.' Motion to Compel). In connection with their individual claims, Plaintiffs requested the same types of documents as those sought in Request 10, for employees working in the same division as the Plaintiffs between July 1995 and early 2005. Request 30, Plaintiffs' First Set of Individual Discovery (Ex. 8 to Pls.' Motion to Compel). EMC provided documentation responsive to both of these requests through April 2005.
Ultimately, a cut-off date for all matters pertaining to the class certification issue, including expert discovery, was set for January 6, 2006. Four days later, EMC filed three motions for summary judgment, each attacking a different aspect of the case. For various reasons, decisions on these three motions were delayed. In November 2006, Plaintiffs moved to certify "a class of current and former female EMC sales employees subjected to EMC's discriminatory pay and management selection policies and practices." Pls.' Mem. in Supp. of Mtn. for Class Certification, at 1 [Doc. 174]. In light of the pending certification motion, we denied the three summary judgment motions without prejudice. On the issue of pay practices, Plaintiffs supported their call for class treatment with the opinions of Dr. Jerry Goldman. EMC challenged the admissibility of Goldman's opinions and testimony, in part through the criticisms of Dr. Joan Haworth, whose testimony and opinions Plaintiffs in turn moved to strike. To resolve those issues, the matter of the admissibility of the respective experts was set for an in-court hearing in September 2007.
In their motion for class certification, Plaintiffs supported their arguments on the issue of commonality with declarations of several women who claimed they were subjected to the objectionable practices similar to those described in the complaint. In responding to the motion for class certification, EMC described these declarations as "stale" and centered "in the distant past." Def.'s Opp. to Pls.' Mtn for Class Certification, at 24-25 [Doc. 196]. Since filing the complaint, Plaintiffs had received information that the identified practices had continued after the time period directly at issue in the case. Exs. 1, 2 to Pls.' Mtn. to Compel [Doc. 223]. Thus, to counter the characterizations in the response and the implicit argument that the problems Plaintiffs alleged had been rectified, Plaintiffs requested that EMC supplement the documents it had previously supplied in response to Requests 10 and 30 by producing complaints filed in the two years since the production was initially made. While acknowledging that additional complaints had been filed, EMC refused to provide any additional discovery. Plaintiffs then filed the current motion to compel production of these documents as well as requesting leave to conduct additional discovery depending on the contents of the materials produced.
Meanwhile, EMC renewed its motions for summary judgment. One of the motions sought summary judgment of Remien and Fletcher's disparate impact claims by arguing that such claims were not included in their EEOC charges and so were not administratively exhausted, a necessary prerequisite to a federal suit to pursue the same claims.
In September 2007, we held four days of hearings to test Goldman's opinions and ultimately concluded that they were not admissible. Because of the impact of this ruling on the viability of the claims based upon discrimination in compensation, we permitted Plaintiffs an opportunity to submit an amended motion for class certification. Other pending motions that the class certification decision would potentially impact were denied without prejudice. The two motions we consider herein are independent of the class issues and thus are ripe for decision.
A. Motion to Compel Supplemental ...