Wilkinson v. Greater Dayton Reg'l Transit Auth.

• Decision Date: 14 August 2012
• Docket Number: Case No. 3:11cv00247
• Parties: MICHELE WILKINSON, et al., Plaintiffs, v. GREATER DAYTON REGIONAL TRANSIT AUTHORITY, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

MICHELE WILKINSON, et al., Plaintiffs,

v.GREATER DAYTON REGIONAL TRANSIT AUTHORITY, et al., Defendants.

Case No. 3:11cv00247

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

Date: August 14, 2012

District Judge Walter Herbert Rice

Magistrate Judge Sharon L. Ovington

DECISION, ENTRY, AND ORDER

I. Introduction

Plaintiffs are current or former employees of Greater Dayton Regional Transit Authority. They bring this case asserting violations of their rights under the Family and Medical Leave Act of 1993 (FMLA), as amended, 29 U.S.C §2601, et seq. Defendants are Greater Dayton Regional Transit Authority and Jean McEntarfer, an employee of Defendant Greater Dayton Regional Transit Authority.¹

This case is before the Court upon Plaintiffs' Motion to Compel Discovery With the Imposition of Waiver and Memorandum in Support (Doc. #s 27, 28), Defendants' Response in Opposition (Doc. # 40), Plaintiffs' Reply (Doc. #s 43, 46), Defendants' Sur-Reply (Doc. #48), and the record as a whole.

II. Background

Plaintiffs assert in their First Amended Complaint that Defendants violated the FMLA and FMLA Regulations in numerous ways. They allege that Defendants:

a) Wrongfully and willfully charged the Plaintiffs and other similarly situated GDRTA [Defendant Greater Dayton Regional Transit Authority] employees with violations such as absenteeism and/or misuse of medical leave provided by the FMLA;

b) Wrongfully and willfully harassed the Plaintiffs and other similarly situated GDRTA employees while on intermittent FMLA leave by requiring them to uniformly recertify their FMLA protected intermittent leave when no recertification was justified under the statute;

c) Wrongfully and willfully required Plaintiffs and other similarly situated GDRTA employees to obtain second and third opinions without reason to doubt the validity of the medical certification, to be evaluated by doctors that were regularly used by defendants, and failed to provide a copy of such opinions within two business days as required under the FMLA, in order to prevent employees from receiving intermittent medical leave, as provided by the FMLA;

d) Wrongfully and willfully imposing higher certification and notification requirements than permitted under the FMLA by uniformly finding sufficient medical certifications to be insufficient and not accepting employees' notification of foreseeable need for medical leave as required under the FMLA in order to prevent employees from exercising their protected rights under the FMLA;

e) Wrongfully and willfully failed to inform Plaintiffs and other similarly situated GDRTA employees that their reasons for frequent absences should be considered for FMLA certified leave;

f) Wrongfully and willfully harassed Plaintiffs and other similarly situated GDRTA employees because of their absences from work while on FMLA protected medical leave;g) Wrongfully and willfully harassed Plaintiffs and other similarly situated GDRTA employees in order to discourage them from use of FMLA protected medical leave;

h) Wrongfully and willfully took intimidating actions against the Plaintiffs and other similarly situated GDRTA employees after they sought to take FMLA protected medical leave;

i) Wrongfully and willfully miscalculated the number of hours available under the FMLA for Plaintiffs and other similarly situated GDRTA employees;

j) Wrongfully and willfully retaliated against Plaintiffs and other similarly situated GDRTA employees by taking adverse employment actions as stated in the previous sections.

(Doc. #21, PageID at 201, ¶3). Defendants deny these allegations in their Amended Answer. (Doc. #22).

Plaintiffs have served Defendants with Interrogatories and Requests for Production of Documents, seeking, from Plaintiffs' viewpoint, "basic information related to Defendants' FMLA policies and processes involved in administering employee requests for FMLA leave." (Doc. #28, PageID at 548). Plaintiffs contend that their discovery requests "are limited and narrowly focused to the issues . . . ." (Doc. #28, PageID at 549).

Plaintiffs describe Defendants' responses as raising "a litany of objections . . . thus making it patently obvious that the objections are intended to deter and impede the truthseeking process contemplated under the federal discovery rules." Id. Plaintiffs seek an Order overruling Defendants' objections and compelling Defendants to provide full and complete responses to Plaintiffs' discovery requests.

Defendants point out that Plaintiffs "ignore Defendants' agreement to provideFMLA files for nearly all GDRTA's employees, as part of a document production totaling over 150,000 pages, not to mention their agreement to conduct an elaborate search of GDRTA's electronically stored information." (Doc. #40, PageID at 754). Defendants contend that their objections are proper and that Plaintiffs' Motion to Compel is meritless.

III. Discussion

A. Number of Interrogatories

Rule 33(a)(1) states:

Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2).

Although Plaintiffs agreed in the parties' Rule 26(f) report to limit the number of their "comprehensive interrogatories" to 15 (Doc. #14, PageID at 144; Doc. #15, PageID at 155), the Court did not specifically impose this limit upon Plaintiffs in the Amended Preliminary Pretrial Conference Order. See Doc. #17. For this reason, Rule 33(a)(1) allows Plaintiffs to serve "no more than 25 interrogatories" upon Defendants. As a result, Defendants' numerical objection - i.e., "Plaintiffs have exceeded fifteen (15) collective Interrogatories" - is overruled, and Plaintiffs are permitted to serve 25 interrogatories.

The more troublesome problem for Plaintiffs is Defendants' contention that Plaintiffs have served far more than 25 interrogatories when the many discrete interrogatory subparts are counted. By Defendants' count, counting each subpart separately, Plaintiffs have served 40 interrogatories.

To counter this problem, Plaintiffs argue that Defendants have waived their supernumerary objection by answering over it. The cases Plaintiffs cite in support of this contention are not controlling upon this Court and are unconvincing. For example, Meese v. Eaton Mfg., 35 F.R.D. 162, 166 (N.D. Ohio 1964) contains no analysis or caselaw supporting its conclusion that the responding party waived its numerical objection by answering over it. 35 F.R.D. at 166. This same is true of Allavherdi v. Regents of University of New Mexico, 228 F.R.D. 696, 698 (D.N.M. 2005). More significantly, neither Meese nor Allavherdi nor the other cases Plaintiffs cite recognize the following mandate in the current version of Rule 33: "Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." Fed. R. Civ. P. 33(b)(3). The plain meaning of this Rule permits a party to raise an objection, then answer the interrogatory without waiving the objection. See Schipper v. BNSF Ry.Co., 2008 WL 2358748 (D. Kan. June 6, 2008)("Meese . . . is no longer good law. . . . [A] party may assert an objection and still respond to the interrogatory."). Plaintiffs' waiver argument therefore lacks merit.

Plaintiffs argue that Defendants have failed to demonstrate that each subpart should be counted as a single interrogatory under the "related question" test. Yet applying the "related question" test does not rescue Plaintiffs from their numerical problem.

The task of counting a party's "interrogatories, including all discrete subparts," under Rule 33(a)(1), is guided by straightforward inquiry: "While the term 'discretesubparts' does not have a precise meaning, courts generally agree that interrogatory subparts are to be counted as one interrogatory . . . if they are logically or factually subsumed within and necessarily related to the primary question.'" State Farm Mut., Auto. Ins. Co. v. Pain & Injury Rehab. Clinic, Inc., 2008 WL 2605206 at *2 (E.D. Mich., June 30, 2008) (quoting Trevino v. ACB Am., Inc., 232 F.R.D. 612, 614 (N.D. Cal. 2006)). "Probably the best test of whether subsequent questions, within a single interrogatory, are subsumed and related, is to examine whether the first question is primary and subsequent questions are secondary to the primary question. Or, can the subsequent question stand alone? Is it independent of the first question? Genuine subparts should not be counted as separate interrogatories. However, discrete or separate questions should be counted as separate interrogatories, notwithstanding they are joined by a conjunctive word and may be related." Kendall v. GES Exposition Services, Inc., 174 F.R.D. 684, 685-86 (D. Nev. 1997). "[O]nce a subpart of an interrogatory introduces a line of inquiry that is separate and distinct from the inquiry made by the portion of the interrogatory that precedes it, the subpart must be considered a separate interrogatory no matter how it is designated." Waterbury v. Scribner, 2008 WL 2018432 at *2 (E.D. Cal. 2008) (quoting Willingham v. Ashcroft, 226 F.R.D. 57, 59 (D.D.C. 2005)).

Plaintiffs label their first interrogatory as 1(a) through Each of these interrogatories begins with a polite request: "Please provide the following information in detail, regarding the policies, procedures, or practices that GDRTA employees must follow in applying for leave under the FMLA." (Doc. #27, Page ID at 463-68). Thelettered components of Plaintiffs' interrogatory 1 ask for information about the following:

a. The manner in which employees are informed of GDRTA's FMLA policies;

b. How long these policies and procedures have been in effect;

c. Procedures used by you when you receive a request from a GDRTA employee for FMLA leave;

d. Length of time it takes for a GDRTA employee to receive an FMLA packet after they request it from

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