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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. TRINITY HEALTH CORPORATION, Defendant. ) ) ) ) ) ) ) ) ) ) ORDER On June 7, 2012, the Plaintiff, Equal Employment Opportunity Commission (EEOC), filed a motion for a protective order to prevent the Defendant from making overbroad and irrelevant discovery requests. On June 20, 2012, the Defendant, Trinity Health Corporation (Trinity) filed a response. On June 28, 2012, the EEOC filed a reply. On August 2, 2012, the Court held a hearing on the motion that resulted in a continuance to allow the parties to pursue settlement. On September 6, 2012, the Court then held an unsuccessful settlement conference with the parties. Therefore, EEOCs motion for protective order is now ripe. For the following reasons, this Court GRANTS the EEOCs Motion for a Protective Order. I. Relevant Background This case arises from a charge filed by Becky Thompson (Thompson) against St. Josephs Regional Medical Center, Inc. (SJRMC), informing the EEOC of an alleged retaliatory practice by Trinity to withhold severance payments to employees that had filed an EEOC charge. This was the third charge filed by Thompson with the EEOC against Trinity. In June 2008, Thompson filed her first charge with the EEOC alleging discrimination. She claimed that she had received a written warning from a supervisor because of her age. This

CAUSE NO:3:11-cv-00309-RLM-CAN

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charge was settled in January 2009 and provided that the complained of discipline would remain in Thompsons file while all future discipline would be reviewed by the human resources department prior to being issued. This charge was resolved without any written response on the part of the SJRMC and without notifying Thompsons supervisor that a charge had been filed. On February 5, 2009, Thompson filed a second complaint against SJRMC alleging retaliation to the EEOC. This charge complained that her position had been eliminated as part of a company wide reduction in force as retaliation for her previous charge filed with the EEOC. In conjunction with the elimination of her position, Thompson was offered a severance under the terms of the Employee Retirement Income Security Act (ERISA) severance program. The receipt of severance pay was contingent upon Thompson signing a general waiver of all employment related claims. On February 17, 2009, Thompson elected to sign a general waiver and receive seven weeks of salary and benefit continuation as well as career assistance for a period of time not to exceed one year. The general waiver provision of the contract provided that, in consideration of the severance agreement, Thompson would release, waive, and fully discharge SJRMC from any and all legal claims or demands, known or unknown, based on employment with and separation from Trinity. [Doc. No. 26-1 at 3-4]. On March 10, 2009, Trinity provided a copy of Thompsons signed waiver to the EEOC and noted that it would preclude her from seeking damages arising out of her job elimination. Trinity next made several attempts to contact the EEOC investigator handling Ms. Thompsons charge to ascertain whether Thompson intended to comply with the general waiver provision in her severance agreement or if Thompson intended to reject the waiver she signed and pursue the

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charges against Trinity. Trinity received no response from either the EEOC or Thompson. In April, 2009, Thompson filed a third charge of discrimination against Trinity alleging that she was denied severance pay in retaliation for filing a charge of discrimination following her job elimination. In response to this charge, the SJRMC requested that Thompson affirm the voluntary and knowing nature of the general waiver she signed and that she agree that she could not pursue damages arising out of her termination. Trinity continued to request information regarding Thompsons position in this matter to no avail. In response, the EEOC issued a finding of probable cause and unsuccessfully attempted to reach an agreement with Trinity in regards to Thompsons reinstatement, severance, back wages, or damages. On August 14, 2011, the EEOC filed this lawsuit alleging that Trinity engaged in unlawful employment practices in violation of Section 704(a) of Title VII, 42 U.S.C. 2000e(3)(a) and Section 4(d) of the Age Discrimination Employment Act (ADEA), 29 U.S.C. 623(d)1. The unlawful employment practices included the refusal to provide severance payments or the discontinuance of severance payments to employees or former employees, like Thompson, who file EEOC charges. Thompsons second charge was closed prior to this action. On November 9, 2011, Trinity served its first set of requests for production of documents. On March 26, 2012, the EEOC responded to Trinitys requests. The EEOC provided Trinity with its investigative file for the EEOC charge underlying this lawsuit and all of Thompsons personal documents relating to the severance issue. However, the EEOC objected to the following discovery requests on the grounds of relevance and overbreadth:

Secion 4(d) of the ADEA and Section 704(a) of Title VII 42 U.S.C. 2000e-3(a) both provide that it is unlawful for an employer to discriminate against any of its employees because such an individual has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or litigation under the specified chapter

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(1)

Document requests 1, 2, 3, 5, 6, 7, 11, and 31 related to the previous EEOC charges that Thompson filed against Trinity.

(2)

Document request 11, 25, 31, and 33 related to Thompsons employment and communications with Trinity.

On April 13, 2012, Trinity served a subpoena duces tecum on Thompson seeking the same documents that had been requested previously and refused from the EEOC. Despite the EEOCs objections, Trinity has declined to narrow its document requests and has indicated its intent to depose Thompson concerning the circumstances of her previous EEOC charges involving Trinity. The EEOC now asks this Court to enter a protective order to prevent Trinity from conducting the above mentioned discovery based on its overbreadth and lack of relevance to this lawsuit. II. Analysis A. Legal Standard

Federal Rule of Civil Procedure 26 provides that parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defense. Fed. R. Civ. P. 26(b)(1). District courts are granted broad discretion in supervening discovery. Spiegla v. Hull, 371 F.3d 928, 944 (7th Cir. 2004). The information sought in discovery need not be admissible at trial because relevance is broadly construed at the discovery stage of litigation and information sought need only appear reasonably calculated to lead to the discovery of admissible evidence. Id.; Oppenheimer Fund v. Sanders, 437 U.S. 340, 351 (1978). If relevance is not obvious on its face, it is the burden of the requesting party to demonstrate relevance. In Re Urethane Antitrust Litigation, 2010 WL 5287675 (D. Kan. 2010).

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While it is true that relevance is broadly construed in discovery, the discovery sought must relate to the issues that are being litigated or it will be denied. Balderstein v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 320 (7th Cir. 2003). The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, undue burden, or undue expense. Fed. R. Civ. P. 26(c)(1). If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that a party or person provide or permit discovery. Fed. R. Civ. P. 26(c)(2). In its motion for a protective order, the EEOC contends that Trinitys discovery requests are overbroad, irrelevant, and based upon a misunderstanding of the law. Trinity argues that the discovery sought is relevant and reasonably calculated to lead to admissible evidence because it is necessary for the preparation of affirmative defenses, depositions, and negating the EEOCs request for damages. Although this is a discovery matter, the Court must also address the strength of Trinitys defenses to reach a conclusion about the relevance of the discovery sought. B. Affirmative Defenses

Trinity argues that the discovery sought is relevant to its affirmative defenses and needed for the preparation of probative depositions. Specifically, Trinity asserts two affirmative defenses: (1) waiver and (2) double recovery. 1. Waiver

Trinity argues that individuals are legally required to choose between seeking damages through the EEOC or accepting the terms of a waiver in a separation agreement. In support of this argument, Trinity cites EEOC v. Waffle House Inc., 534 U.S. 279, 296-97 (2002). The issue presented in EEOC v. Waffle House Inc., was whether an agreement between an employer and an

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employee to arbitrate employment-related disputes bars the EEOC from pursuing victim specific judicial relief, such as back-pay, reinstatement, or damages, in an enforcement act by the EEOC alleging that the defendant has violated Title I of the Americans Disabilities Act of 1990 (ADA). Id. at 279. The court held that the EEOC may obtain victim-specific remedies in court on behalf of an employee who had agreed to arbitrate discrimination claims against his employer. Id. at 295-96. The court reasoned that whenever the EEOC chooses from among the many charges filed each year to bring an enforcement action in a particular case, the agency may be seeking to vindicate a public interest, not simply provide make-whole relief for the employee, even when it pursues entirely victim specific relief. Id. The court further reasoned that to hold otherwise would undermine the detailed enforcement scheme created by Congress simply to give greater effect to agreements between private parties that do not contemplate the EEOCs statutory function. Id. This case demonstrates that the EEOC is not in privity with the victims for whom it seeks relief and therefore the EEOC may seek victim-specific relief on behalf on an employee that has agreed to arbitrate all employment claims when discrimination claims arise because it serves public policy. Likewise, the EEOC may pursue the present lawsuit even if Thompsons waiver were valid. Thus, this Court finds that Trinity has failed to provide a legal premise for its argument that individuals are legally required to choose between seeking damages through the EEOC or accepting the terms of a waiver in a separation agreement. Next, Trinity argues that the claim made in the EEOCs complaint does not reasonably fall within the scope of any allegations made in Thompsons charge. Trinity argues that without access to the EEOCs entire investigative file it will not be able to develop a factual support for

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this defense. However, this lawsuit alleges only that Trinity has a practice of withholding severance payments to individuals that file or maintain EEOC charges, which Trinity has admitted to doing. The EEOC maintains a right to file a charge independent of a charging party and the agency may seek to vindicate a public interest, not simply provide make-whole relief for an employee. Therefore, this Court finds that Trinitys document requests regarding the scope of Thompsons charge are not relevant. 2. Double Recovery

Trinity also argues that any individual who releases her claims in the context of a separation agreement cannot then benefit monetarily from any litigation pursued by the EEOC on behalf of that individual, thereby receiving double recovery. In support of its argument, Trinity again cites EEOC v. Waffle House. See id. (explaining that an employees conduct may have the effect of limiting the relief that the EEOC may obtain in court and stating that if an employee fails to mitigate damages or accepts a settlement agreement, recovery by the EEOC may be limited accordingly). The EEOC argues that this argument cannot support the objected discovery requests as relevant to Trinitys defenses and probative deposition preparation because it is an invalid argument that has been based upon Trinitys misunderstanding of the law. This Court agrees for the following reasons. While it is true that courts caution against double recovery, the courts also recognize the ability of an employee to receive damages through the EEOC even if a severance agreement has been signed. EEOC v. Contl Airlines Inc., 2006 WL 3505485 *1-2 (N.D. Ill. 2006) (explaining Waffle House and holding that the EEOC can still pursue a monetary award even if a settlement agreement has been made between an employer and employee and reasoning that courts can

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work post-judgment to avoid double recovery). It is also a well settled principle of the law that the EEOC maintains a right of action independent of the charging party. Gen. Tel. Co., v. EEOC, 446 U.S. 318, 324-25 (1980). Furthermore, any provisions in a settlement agreement prohibiting Thompson from maintaining an EEOC charge would be invalid. EEOC v. Board of Governors, 957 F.2d 424 (7th Cir. 1992) (holding that statutory provisions against retaliation, such as those in the ADEA and Title VII, protect an employees rights to participate in protected activity and aid the work of the EEOC); EEOC v. Sundance Rehabilitation Corp., 466 F.3d 490, 498 (6th Cir. 1987) (holding that any prohibition on filing a charge with the EEOC is void and unenforceable as against public policy); EEOC v. Cosmair Inc., L Oreal Hair Care Div., 821 F.2d 1085, 1087 (5th Cir. 1987) (explaining that an employee cannot waive the right to file an EEOC charge as part of a severance agreement because such a waiver is void as against public policy and discontinuation of severance payments because a charge has been filed with the EEOC is retaliation under the ADEA). Accordingly, because the EEOC can pursue damages on behalf of an employee who has released her claims in the context of a severance agreement, Trinitys double recovery defense is not a valid basis for discovery. As a result, Trinitys document requests are irrelevant. C. Damages.

Trinity argues that the discovery sought is relevant to its defense against the EEOCs claims for punitive and compensatory damages. 1. Punitive Damages

Trinity argues that the discovery sought is necessary to prepare a factual defense, proving that they acted in good faith, against the EEOCs claims for punitive damages. To prove a claim

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for punitive damages the EEOC must show that Trinity acted with malice or reckless indifference to the rights of Thompson and other class members similarly situated in violation of Section 4(d) of the ADEA, 29 U.S.C. 623(d) and Section 704(a) of Title VII, 42 U.S.C. 2000e-(3)(a). Kolstad v. American Dental Assoc., 527 U.S. 526 (1999). The focus is on Trinitys conduct, not Thompsons or the EEOCs. See Vandersteen v. Kelly, 2010 WL 659327 *4 (N.D. Ill., Feb. 23, 2010). To the extent Trinity asserts that the EEOC investigator committed errors, EEOC has already produced its investigation files. 2. Compensatory Damages

Trinity argues that the discovery sought is relevant to the EEOCs claims for compensatory damages because it is needed to explore the possibilities of alternate sources of emotional distress that Thompson may claim. The fact that an employee, or the EEOC, files a discrimination case does not mean that the employer can conduct unlimited discovery of matters which are irrelevant to the issues presented. See Woods v. Fresenius Med. Care Grp. of N. Am., WL 151836 (S.D. Ind. 2008) (explaining that an employment discrimination plaintiff does not open an entire work history up for discovery by the defendant as a matter of course; rather the defendant must demonstrate a specific reason why the information is relevant to the particular claims and defenses). Here, Trinity speculates that the discovery sought might lead to admissible evidence regarding emotional distress claims that Thompson may allege. While Trinity is free to explore other sources of Thompsons emotional distress, it may not obtain all of the EEOCs files related to previous charges and Thompsons work file because they are irrelevant to the issues presented in this matter. III. Conclusion

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Because the affirmative defenses that Trinity has asserted are invalid in the context of this lawsuit, Trinity has failed to show that the discovery sought is relevant or reasonably calculated to lead to relevant evidence. Accordingly, the EEOCs motion for a protective order is GRANTED. [Doc. No. 26]. SO ORDERED Dated this 12th day of September, 2012.

S/Christopher A. Nuechterlein Christopher A. Nuechterlein United States Magistrate Judge

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