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Equal Employment Opportunity Commission v. Dhl Express (Usa)

October 31, 2012


The opinion of the court was delivered by: Magistrate Judge Arlander Keys

Judge John Z. Lee


Currently before the Court is DHL Express' (USA), Inc. ("DHL" or "Defendant") Motion to Compel depositions. DHL argues that Plaintiff, EEOC and Plaintiff-Intervenors ("EEOC" or Plaintiff), refuse to make claimants available for deposition. For the reasons set forth below, DHL's Motion is granted.

Background Facts

DHL is an international shipping company. During the time period at issue, 2005 to the present, all of DHL's Chicago area driver/dockworkers, including all 94 of the claimants*fn1 , have been represented by Teamsters Local Union No. 705. On September 24, 2010, the EEOC filed the case at bar on behalf of 94 claimants, alleging that DHL discriminated against its African-American driver/dockworkers based on their race by giving them less desirable, more difficult, and more dangerous route and dock assignments than their Caucasian counterparts and by assigning African-American drivers to routes in predominately African-American areas. However, the EEOC has not alleged nor identified what it is that constitutes a "less desirable," "more difficult," or a "more dangerous assignment." Instead, the EEOC provided interrogatory responses, including a vignette for each claimant (who is not a Plaintiff-Intervenor or Charging Party), with the claimants' general allegations of discrimination. These vignettes are not sworn, verified, nor made under oath.

DHL requests that the Court order the EEOC to produce all of the claimants to be deposed, arguing that the vignettes provided by Plaintiff are vague, filled with generalities, and in several instances inaccurate. Moreover, DHL argues that, because there is no standard as to what a "more dangerous assignment" is, what defines a "Black area," and no objective criteria for what constitutes "less desirable," each claimant's individual testimony is pivotal to establishing the facts necessary for DHL to defend itself against the allegations EEOC has put forward. Alternatively, the EEOC characterizes the instant case as one involving only the distribution of work assignments, downplaying the personal opinions of the claimants' assignments along with the need for any further depositions, and opining that the route assignment claims can be proven through its expert's analysis.

To date, DHL has deposed 34 of the 94 claimants, including 11 of the 13 Plaintiff-Intervenors. Thus far, the testimony has varied widely amongst each claimant regarding different subjective standards for what constitutes a predominantly African-American area, inconsistent definitions of what makes an area or route unsafe, and different standards as to what makes a route or dock assignment desirable.


The EEOC's complaint alleges both discrimination and segregation in route and dock assignments. Under either theory, the EEOC must prove not only the allegation, but also the result and effect of the alleged segregation and discrimination on each claimant. Moreover, because this is not a Rule 23 class action, each claimant must prove liability and damages, the parties cannot rely on testimony or the experience of someone else. Conversely, DHL must be able to assess claimants' allegations in order to defend against them. The Court finds the sworn depositions of the individual claimants necessary, as the EEOC's claims are based on allegedly adverse actions that are subjective in nature and an analysis of each individual claimant's testimony is of necessity. Thus, for the reasons explained further below, the Court grants Defendant's Motion to Compel.

I. Necessity for Each Claimants' Individual Experience

The EEOC has brought this lawsuit under §706(f)(1) and §706(f)(3) of title VII, as amended, 42 U.S.C. §2000e-5(f)(1) and §20000e-5(f)(3), and §102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a. (Dkt. #26 at par.2.) The claimants are not non-party witnesses, they are persons on whose behalf the EEOC is seeking relief for compensatory and punitive damages in their individual capacity.

A. Not Unduly Expensive

The EEOC first asserts that, in most cases, there are more people with knowledge regarding the claims at issue than are necessarily deposed (Pl.'s Resp. p.3.), and that deposing each claimant is unduly expensive. Plaintiff relies on EEOC v. YRC, Inc., Case No. 09 cv 7693 (N.D. Ill.), suggesting that the facts of that case are similar to those herein, and that there the parties agreed to a lower percentage of claimant depositions compared to the actual size of the case.

Plaintiff's reliance upon YRC is as unavailing as is its argument of expense. The EEOC's assertion that an agreement in YRC between the parties to limit the number of depositions per side somehow dictates that DHL is not entitled to take all of the claimant depositions is misplaced. The agreement in YRC only demonstrates what the parties there were able to agree to, not what the Court decided as it relates to the allowed number of depositions. Here, the EEOC acknowledges that DHL has also made some cooperative agreements, including splitting the cost of a joint database of staffing information, as well as limiting the time of the fact ...

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