Summary: Various and numerous motions were filed by both parties in this case. Of particular significance was plaintiff's motion to compel responses to interrogatories and document requests relating to the salaries of other management personnel of defendant. Plaintiff asserted that because she was a director she was "similarly situated" to all other directors for comparison purposes under the Equal Pay Act. In denying the plaintiff's motion to compel the court held that plaintiff must make a threshold showing of at least substantial similarity between her position and that of each of the other employees whose compensation information she seeks. The court further found that plaintiff's contention that all directors are per se similarly situated is not sufficient.

Case Name: Constance Nelson v. Paracelsus Healthcare Corp.
Case Number: A3-98-141
Docket Number: 57
Date Filed: 2/14/00
Nature of Suit: 710

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

ORDER

Plaintiff has filed a motion to compel responses to interrogatories and document requests relating to the salaries of other management personnel of defendant. That motion has spawned numerous other motions. In this order the court will attempt to rule on all pending motions except defendant's recent motion for summary judgment.

1. Plaintiff's Motion to Compel Discovery Responses

The disputed discovery requests seek the following information from defendant:

Interrogatory 17: Salary range for directors

Interrogatory 19: Bonuses to employees from 1993 to present

Document Request 3: Documents showing compensation paid to certain employees, including all other directors

Document Request 18: Directors' salary range documentation

Defendant has objected to the requests on the grounds that they seek irrelevant and confidential personnel information, are overbroad, vague and unduly burdensome. Plaintiff contends the information is very relevant and is necessary for her to demonstrate an Equal Pay Act violation and sex discrimination. Defendant vehemently contends the positions about which she inquires other than the position held by plaintiff and Paul Smith are not sufficiently similar to justify disclosing confidential personnel compensation information. Plaintiff has offered to sign a confidentiality agreement covering the requested information, but defendant has rejected the offer. The court also notes that plaintiff rejected defendant's offer to disclose the information to plaintiff's counsel but not to plaintiff herself.

In order to establish an Equal Pay Act violation and sex discrimination based on pay differential, plaintiff must show that she and the male employees she uses for comparison are "similarly situated." Defendant contends she must make a showing of similarity before gaining access to compensation data concerning other employees, particularly since she is still an employee herself. Plaintiff contends this is not a summary judgment motion and she is not required to show similarity at this stage. She contends the "similarly situated" issue is a fact question for the jury, which presents a sufficient basis for discovery of the information. Factually, her position can be summarized by the following statement she made in her deposition: "Everyone on this list is a director, so if I'm a director we are similarly situated." (Deposition of Constance L. Nelson, Vol. II, p. 232, attached to Affidavit of Catherine F. Haukedahl, Doc. #32).

The court rejects plaintiff's position. While the court agrees that plaintiff need not prove the "similarly situated" issue by a preponderance of the evidence at this stage, merely placing the issue in dispute by making a request for compensation information on other employees is not enough. The court finds that plaintiff must make a threshold showing of at least substantial similarity between her position and that of each of the other employees whose compensation information she seeks. Her contention that all directors are per se similarly situated is not sufficient. As her deposition testimony reflects, she admits she is unable to perform most of the other directors' jobs, and she has provided no basis for the court to determine that the remaining positions are sufficiently similar to permit her access to her co-employees' compensation details.

Aside from the issue of similarity of positions, plaintiff argues that evidence that defendant pays other female employees less than their male colleagues as a result of gender may be admissible. This general evidentiary proposition does not provide a basis for wholesale disclosure of compensation for apparently dissimilar positions, and with respect to bonuses, for every position in defendant's organization. Although the discovery rules are intended to provide broad access to useful information, they do not countenance a wide ranging search without foundational basis.

Defendant's objections on the basis of confidentiality and lack of relevance are sustained, although its other grounds for objection are overruled. Plaintiff's motion to compel discovery is denied.

2. Plaintiff's Motion for Fees and Expenses

Because the court has denied plaintiff's motion to compel, it likewise denies her request for attorney's fees and expenses incurred in bringing the motion.

3. Defendant's Request for Fees and Expenses

Defendant has requested an award of attorney's fees and expenses incurred in defending the motion to compel. Although defendant has prevailed on the motion to compel, it was at least partly responsible for the unnecessarily voluminous and redundant record that has developed with respect to the motion to compel. The parties have made at least fifteen additional requests or motions relating to the discovery dispute. That style of motion practice should not be encouraged through an award of attorney's fees and costs. Defendant's request is denied.

4. Defendant's Motion for Oral Argument on Motion to Compel

Defendant has requested oral argument on plaintiff's motion to compel. The record the parties have developed is already a case of overkill. The court does not need to hear further from counsel on the motion to compel. The motion for oral argument is denied.

5. Defendant's Motion to Strike Affidavit

Plaintiff submitted two affidavits in support of her motion to compel, one from her counsel and one from plaintiff herself. Connie Nelson's affidavit recounts the reasons for her belief that defendant pays female employees less than male employees for similar work and why she believes she needs the requested information concerning directors' salaries. Defendant has moved to strike this affidavit because it is allegedly based on "speculation, non-supported 'beliefs' and rank hearsay." (Defendant's Notice of Motion and Motion to Strike and Request for Oral Argument, Doc. # 29, at 1).

The affidavit of Connie Nelson has already been filed as part of the motion to compel. The court has read it in connection with that motion and also in its consideration of the motion to strike. Although much of the affidavit is based on Ms. Nelson's suspicions rather than firsthand knowledge, that is precisely the point of the motion to compel. Plaintiff says she needs the requested information to prove her suspicions. The court has agreed with defendant that plaintiff has failed to show that the positions and employees for which she requests information are not sufficiently similar to justify disclosure of compensation information, but the court declines to strike the affidavit from the record. Defendant's motion to strike is denied.

6. Plaintiff's Motion for Hearing on Motion to Strike

Plaintiff has moved for a hearing on defendant's motion to strike. Since the court has denied the motion to strike, it finds no need for a hearing on the motion. The motion for hearing is denied.

7. Plaintiff's Motion to File Expert Report

Plaintiff has moved for leave to file a report by her economic expert witness in support of the motion to compel. The report indicates the expert needs information on salaries of positions formerly held by men and later held by women or vice versa. Defendant resists the filing of this report in support of plaintiff's motion to compel, although the opposition was not filed until nine days after the court entered an order routinely granting the request. The court has reviewed the report and finds it unconvincing as justification for disclosure of the requested compensation information. Like plaintiff's affidavit, the report does not address the issue of whether the other employees are "similarly situated." The court finds no reason, however, to deny plaintiff the opportunity to have the court consider the report, since the court has already read it. Plaintiff's motion to file expert report is granted.

8. Plaintiff's Motion to File Corrected Page

Plaintiff has moved to file a corrected page 4 in her response to the motion to strike. The corrected page has been lodged with the clerk. The request to substitute the corrected page is granted.

9. Defendant's Motion to File Sur-reply

Defendant has moved for leave to file a sur-reply in response to plaintiff's motion to compel. The proposed sur-reply brief also includes defendant's brief in support of its motion to strike affidavit. Ordinarily the court would reject sur-replies, but the court has already reviewed the brief in connection with defendant's motion to strike affidavit. For that reason, the motion for leave to file sur-reply is granted.

10. Plaintiff's Motion to File Supplemental Affidavit

Plaintiff has moved for leave to submit a supplemental affidavit of Connie Nelson. The proposed affidavit has been lodged with the clerk. Defendant opposes the motion. The court has reviewed the affidavit and finds that it does not provide any further basis for the discovery plaintiff requests than her original affidavit did. However, since the affidavit is already here and the court has already read it, the affidavit will be filed. Plaintiff's motion for leave to file it is granted.

11. Plaintiff's Motion for Leave to File Sur-reply

Plaintiff has also moved for leave to file a sur-reply on her motion to compel. Since the court has accepted defendant's sur-reply, it will accept plaintiff's as well. The motion is granted.

12. Plaintiff's Motion for Order Allowing Filing of Additional Evidence

Plaintiff has moved to submit portions of deposition transcripts and deposition exhibits in support of her motion to compel discovery. The clerk has already filed the supplemental materials as attachments to the supplemental affidavit of plaintiff's counsel. The court has reviewed the materials in connection with plaintiff's motion to compel and approves their filing. The motion is granted.

13. Plaintiff's Motion for Order to Recall Witnesses

Plaintiff has deposed several of defendant's employees and seeks an order allowing her to recall them for further deposition pending the court's ruling on her motion to compel. Plaintiff intends to inquire into the witnesses' salaries as well as salaries of other employees, in line with her discovery requests that are the subject of the motion to compel. Since the court has denied the motion to compel because plaintiff has not shown the other employees and positions are similarly situated, there appears to be no need to recall the witnesses for further deposition. Plaintiff's motion to recall witnesses is denied.

14. Plaintiff's Motion for Fees and Costs for Recalling Witnesses

Plaintiff has moved for an award of fees and costs she will incur in recalling witnesses for further deposition, because defendant's counsel instructed the witnesses to refuse to answer questions about compensation pending the court's ruling on the motion to compel. Since the court has denied the motion to compel as well as the motion to recall witnesses, the request for an award of fees and costs is denied as well.

15. Plaintiff's Motion to Compel Response to Document Request 25

After the dispute arose over plaintiff's requests for compensation information for certain employees and positions, she served a document request seeking documents relating to salary surveys conducted by defendant, including one particular evaluation prepared for defendant by a consultant. Plaintiff contends defendant has relied heavily upon such information in establishing salaries for all directors. Defendant has objected to the request on the same grounds as the earlier requests for compensation information. It appears from the record that defendant is willing or already has produced general market survey information, but nothing relating to specific positions in the Dakota Heartland Hospital System. Based on the court's finding that plaintiff has failed to make any threshold showing that the other director positions are similarly situated to her position, the court denies plaintiff's motion to compel a response to Document Request 25.

16. Defendant's Request for Oral Argument

Defendant has requested oral argument on plaintiff's motion to compel a response to Document Request 25 and motion to recall witnesses. The court finds that oral argument would not assist the court, so the request is denied.

17. Plaintiff's Motion to Seal

When she filed her initial motion to compel, plaintiff indicated she was submitting salary information that should not be made public and consequently, the record relating to the motion to compel should be sealed. Defendant joined in the request, and the court entered an order sealing the motion to compel and all documents relating to it. At that time the court had no inkling of the massive record that would follow. The court now finds that very little of the record on the motion to compel should properly remain sealed. Therefore, the court orders that the record on the motion to compel and related filings be unsealed except the following:

    Affidavit of Connie L. Nelson with Attachments (part of Doc. #21)

    Expert Witness Report of Paul Estenson (part of Doc. # 25)

    Supplemental Affidavit of Connie L. Nelson (lodged with clerk)

    Supplemental Information for Plaintiff's Motion for Order Permitting Filing of Additional Evidence, etc., together will Second Supplemental Affidavit of Susan L. Ellison and Attachments (all at Doc. # 42)

Plaintiff separately requested an order sealing her motion to file expert witness report and accompanying documents. The court has above determined that the expert witness report should be maintained as a sealed record, but there is no need to seal the motion to file the expert witness report.

19. Defendant's Motion to File Exhibits to Summary Judgment Motion Under Seal

Defendant submitted documents relating to personnel matters in connection with its motion for summary judgment and requests that those documents be sealed. Upon review of the documents, the court agrees they should be sealed. The motion is granted.

20. Plaintiff's Motion to Seal Documents Regarding Summary Judgment Motion

Plaintiff has moved to seal documents she has submitted in response to defendant's motion for summary judgment. The documents serve as attachments to the affidavits of Susan L. Ellison and Connie L. Nelson submitted with plaintiff's summary judgment response. The motion is granted, and the court orders that the attachments (part of Doc. # 53) be sealed.

21. Defendant's Motion for Leave to File Reply Brief

Defendant seeks leave to file a reply brief on its motion for summary judgment. Plaintiff originally stipulated to allow defendant until January 11, 2000 to file a reply brief, but when defendant separately requested after January 11 leave to file a reply brief, plaintiff raised a concern about the reply brief delaying the court's decision on the summary judgment motion in light of the April 3 trial date. It does not appear that defendant submitted the reply brief with the motion for leave. The court will allow the filing of a reply brief, if defendant files and serves the brief on or before February 22, 2000.

Dated: February 14, 2000.

Karen K. Klein
United States Magistrate Judge