Schroeder v. Sager Elec. Supply CV-95-181-SD 10/08/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mary-Ann Schroeder
v. Civil No. 95-181-SD
Sager Electrical Supply Company, Inc.
O R D E R
Plaintiff Mary-Ann Schroeder brought this case by an initial
complaint alleging that defendant Sager Electrical Supply
Company, Inc., denied her promotions and then constructively
discharged her on the basis of sex in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seg. The
court granted defendant's motion for summary judgment on
plaintiff's discriminatory promotion claim and granted plaintiff
leave to amend her claim by adding an Egual Pay Act claim. See
Order of October 28, 1996. The court also granted defendant's
second motion for summary judgment on plaintiff's constructive
discharge claim, but denied summary judgment as to plaintiff's
Egual Pay Act claim.
Now before the court are the following motions: 1) Sager's
motion for summary judgment asking the court to rule that the
applicable statute of limitations bars Schroeder's claims for
damages under the Egual Pay Act, 29 U.S.C. § 255 (1994); 2) defendant's motion in limine to exclude evidence of certain
alleged improper gender references; 3) plaintiff's motion in
limine to exclude the testimony of defendant's expert; 4)
defendant's motion for a protective order pursuant to Rule
26(c)(1), Fed. R. Civ. P.; and 5) plaintiff's motion to compel
defendant's answers to her third and fourth sets of
interrogatories.
Background
Schroeder worked as a salesperson in Sager's Salem, New
Hampshire, branch from April 30, 1984 until she resigned on
August 22, 1994. Sager originally hired Schroeder as an inside
salesperson and promoted her to outside sales after she had been
with the company for six months. In 1988 Sager hired a man, who
Schroeder believed was less gualified than her, for the position
of outside sales manager. Mr. Murphy, one of Schroeder's
supervisors, told her that she did not get the job becauseshe
recently had married a man with children and "she would want to
spend more time at home." Complaint 5 11. Schroeder also claims
that Sager promoted less gualified men ahead of her in 1990 and
again in 1994.
Schroeder complains that the man whom Sager promoted ahead
of her in 1994 reassigned two of her largest accounts. When one
2 of Schroeder's former customers complained about Schroeder's
being removed from her account, Mr. Norton called the customer a
lesbian. Schroeder also alleges that in 1994 Mr. Gabriel, a
manager at Sager, criticized her appearance, while supervisors at
Sager did not criticize men similarly.
In addition, Schroeder alleges that Sager has paid her less
than men engaged in the same work. Specifically, Sager paid some
male salespersons in Sager's Massachusetts and Connecticut
branches more than it paid Schroeder. Schroeder alleges that
Sager should have paid her at the same rate as these employees
because she and they were performing substantially egual work in
the same establishment.
In addition to Schroeder's complaints about Sager, another
employee, Kelly Smith, has alleged that Sager discriminated
against her on the basis of sex. Kelly Smith worked in Sager's
Hingham, Massachusetts, office from 1989 until 1995, when she was
constructively discharged after Sager failed several times to
promote her and demoted her after discovering that she was
pregnant.
On October 7, 1994, Schroeder filed a Charge of
Discrimination with the New Hampshire Human Rights Commission and
the Egual Employment Opportunity Commission (EEOC). The EEOC
issued a Notice of Right to Sue on January 12, 1995. Schroeder
3 initiated this action by filing a complaint in this court
alleging violation of Title VII on April 6 , 1995. In a pretrial
order dated June 6 , 1995, the court stated that Schroeder would
file a motion for leave to amend adding a claim under the EPA.
Although Schroeder discussed the prospect of adding an EPA claim
in 1995, she did not reguest leave to amend until September 20,
1996. On October 28, 1996, this court granted Schroeder leave to
amend her original complaint to add an EPA claim.
Discussion
1. Defendant's Motion for Summary Judgment
Sager moves for summary judgment on Schroeder's one
remaining EPA claim based on the contention that the applicable
statute of limitations bars her from recovery. The statute of
limitations provides that a plaintiff can bring a claim within
two years of the alleged violation, or three years if the
violation was willful. See 29 U.S.C. § 255 (1994). Sager
contends that because Schroeder moved to amend her complaint on
September 20, 1996, more than two years after she had resigned
from Sager, she cannot collect damages. Sager asks the court to
enter summary judgment against the plaintiff on the issue of
willfulness and apply the two-year limitations period because
Schroeder has not produced evidence of willfulness sufficient to
4 create a genuine issue. Thus, according to Sager, the plaintiff
could only recover back pay for a period of two years, which
would bar her recovery completely because she was not working at
Sager two years before the date of her amended complaint.
On the other hand, Schroeder argues that, pursuant to Rule
15(c), Fed. R. Civ. P., her amended complaint relates back to the
date of her original complaint for the purposes of the statute of
limitations. Schroeder further argues that the court need not
limit recovery of back pay to two or three years. Specifically,
Schroeder argues that the doctrine of continuing violations
allows the award of back pay to reach beyond the limitations
period. Schroeder also objects to Sager's reguest for summary
judgment on the issue of willfulness because, she contends,
willfulness is an issue of fact and she has produced sufficient
evidence to avoid summary judgment.
a. Standard for Summary Judgment
The entry of summary judgment is appropriate when the
"pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Rule 56(c), Fed. R. Civ. P. Because the purpose of summary
5 judgment is issue finding, not issue determination, the court's
function at this stage "'is not . . . to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.'" Stone & Michaud Ins., Inc. v.
Bank Five for Sav., 785 F. Supp. 1065, 1068 (D.N.H. 1992)
(guoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986)). Although "motions for summary judgment must be decided
on the record as it stands, not on litigants' visions of what the
facts might some day reveal," Maldonado-Denis v.
CastilloRodriquez, 23 F.3d 576, 581 (1st Cir. 1994), the court
must scrutinize the entire record in the light most favorable to
the non-movant, with all reasonable inferences resolved in that
party's favor. See Smith v. Stratus Computer, Inc., 40 F.3d 11,
12 (1st Cir. 1994), cert, denied, 514 U.S. 1108 (1995); see also
Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.
1994) .
"In general, ... a party seeking summary judgment [must]
make a preliminary showing that no genuine issue of material fact
exists. Once the movant has made this showing, the non-movant
must contradict the showing by pointing to specific facts
demonstrating that there is, indeed, a trialworthy issue."
National Amusements, Inc. v. Town of Dedham, 43 F. 3d 731, 735
(1st Cir.) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324
6 (1986)), cert, denied, 515 U.S. 1103 (1995).
When a party "fails to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party bears the burden of proof at
trial," there can no longer be a genuine issue of material fact.
Celotex Corp., supra, 477 U.S. at 322-23. The failure of proof
as to an essential element necessarily renders all other facts
immaterial, and the moving party is entitled to judgment as a
matter of law. See id.
b . Rule 15(c)
To determine whether the statute of limitations bars
Schroeder's complaint, the court must first decide whether the
amended complaint relates back to the date of the original
complaint, which Schroeder filed within the two-year limitations
period. An amended complaint relates back to the date of the
original pleading when "the claim . . . asserted in the amended
pleading arose out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original pleading
. . . ." Rule 15(c)(2), Fed. R. Civ. P. Thus the guestion
presented is whether Schroeder's EPA claim arises from the same
conduct, transaction, or occurrence set forth in her original
pleading.
7 Courts applying Rule 1 5 (c) seek to strike a balance between
competing interests. On the one hand, the Federal Rules have
liberalized pleading, preferring that courts decide cases on the
merits. However, fairness to the other party also enters the
calculation. The reguirement that the new claim arise from the
"same conduct, transaction, or occurrence" ensures that the
opposing party is not prejudiced in its defense. The United
States Court of Appeals for the Seventh Circuit aptly identified
this tension.
"The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and affect the principle that the purpose of pleading is to facilitate a proper decision on the merits." But competing considerations enter the fray when a lawyer's mistake (either of fact or of law) can prejudice the other side's defense. It may then become difficult or impossible to avoid a result dictated by the skill of counsel rather than by the merits of the client's case.
Woods v. Indiana Univ.-Purdue Univ., 996 F.2d 880, 882 (7th Cir.
1993) (guoting Conley v. Gibson, 355 U.S. 41, 48 (1958)).
Some courts have developed narrow tests to determine whethe
the amended complaint relates back, such as whether the same
evidence is necessary to prove both the original and the amended
complaint. See Miller v. Werner, 431 S.W.2d 116, 118 (Mo. 1968)
Sager asks the court to apply such a narrow test and hold that
Schroeder's amended complaint does not arise from the same conduct, transaction, or occurrence because the amended complaint
states a different cause of action for a violation of a different
statute and substantially altersthe damage focus. See
Defendant's Memorandum of Law in Support of Motion for Summary
Judgment at 4. However, most courts have rejected narrow tests
in favor of the standard espoused in the rule itself. See 6A
C harles A. W r i g h t et a l ., Federal Practice and Procedure § 14 97 (1990) .
Specifically, courts haveallowed claims to relate back
regardless of whether they state a cause of action under a
different statute. See, e.g.. Tiller v. Atlantic Coast Line R.
C o ., 323 U.S. 574, 581 (1945) (allowing amendment alleging
violation of Boiler Inspection Act to relate back to original
complaint filed under Federal Employers Liability Act). See
McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850,
864 (5th Cir. 1993); Wright, supra.
This court believes it is preferable to eschew narrow tests
in favor of a broader inguiry into the facts underlying the
original complaint. Thus, to determine whether an amended
pleading arises from the same conduct, transaction, or
occurrence, the court will first look to see if the factual
claims raised in the original complaint support the new claim.
Notice to the other party serves as a guide in this inguiry.
One gloss courts universally have added to the same conduct. transaction, or occurrence test is the requirement that the
opposing party be put on notice by the original pleading. See
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3
(1984); O'Loughlin v. National R.R. Passenger Corp., 928 F.2d 24,
26 (1st Cir. 1991); Forzlev v. AVCO Corp., 826 F.2d 974, 981
(11th Cir. 1987). When the original pleading has given the
opposing party sufficient notice of the nature of the suit, the
purpose of the statute of limitations has been fulfilled and
there is no reason to bar the subsequent claim. See Tiller,
supra, 323 U.S. at 581; O'Louqhlin, supra, 928 F.2d at 26 (citing
Wright, supra) . Thus, the original complaint must be related
closely enough to the amended complaint to have afforded the
opposing party adequate opportunity to prepare its defense.
Whether the requisite notice can be obtained from sources
other than the original pleading is an interesting question upon
which courts have disagreed. See W r i g h t , supra. Although
Professors Wright and Miller advocate looking for notice outside
the pleadings "since it is unwise to place undue emphasis on the
particular way in which notice is received," the First Circuit
advocates caution when using extrinsic evidence of notice.
Wright, supra; see O'Louqhlin, supra, 928 F.2d at 27. In
O'Louqhlin, the court rejected the plaintiff's argument that
correspondences notified the defendant of the basis of the
10 plaintiff's claim. Id., 928 F.2d at 27. The court noted that
"Rule 15(c) confines inquiry to the fact situation 'set forth or
attempted to be set forth' in the original complaint." Id.
Allowing contradictory extrinsic evidence "involves too great a
potential for confusing and uncontrolled collateral fact
finding ." Id.
The court finds that Schroeder's allegation in the original
pleading that "Sager paid Ms. Schroeder less than her male co
workers," set forth the same conduct that now forms the basis of
her EPA claim. Complaint 5 21. Because wage discrimination was
one of the factors Schroeder alleged contributed to her
constructive discharge, Sager was on notice that it would have to
prepare a defense on this issue. See Benfield v. Mocatta Metals
Corp., 26 F.3d 19, 23 (2d Cir. 1994) (allowing relation back of
RICO claim when claim would require evidence of same wrongful
acts alleged in original complaint for fraud).
Schroeder also points to the court's June 6, 1995, pretrial
order as evidence that Sager had notice of her EPA claim. See
Plaintiff's Objection at 8.1 Although the early discussion of a
1Sager's argument that the plaintiff should be bound by the pretrial order is unavailing. Although the court's order did indicate that the plaintiff would file for leave to amend within thirty days, a plaintiff is free to request leave to amend at any time. Schroeder retained her right to petition the court for leave to amend, and exercised this right. The court granted her request, and in doing so determined that allowing the petition 11 potential EPA complaint may undermine Sager's claim that it would
be prejudiced by a lack of notice if the EPA claim relates back,
the court declines to rely on the pretrial order. Because the
original pleading gave Sager adeguate notice, the court need not
consider extrinsic evidence.
c. Damages
Because Schroeder's EPA complaint relates back to the date
of her original complaint, the statute of limitations does not
bar her EPA claim completely.2 However, Sager has reguested
partial summary judgment on the issue of damages. Sager contends
that Schroeder has not proffered sufficient evidence that Sager
willfully violated the EPA, therefore entitling Sager to judgment
on the issue of willfulness as a matter of law and limiting
Schroeder's potential recovery of back pay to two years. Thus,
was not unduly prejudicial to Sager.
2The applicable statute of limitations, 29 U.S.C. § 255, provides that:
Any action . . . to enforce any cause of action . . . under the Fair Labor Standards Act of 1938, as amended [29 U.S.C.A. § 201 et seg.], . . . (a) . . . may be commenced within two years after the cause of action accrued, . . . except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.
12 according to Sager, if she prevails, Schroeder can be entitled to
damages for only two years prior to the date of her original
complaint.
Schroeder argues that willfulness is not relevant because,
under the continuing violation theory, she is entitled to recover
back pay for the entire period she was underpaid. In the
alternative, Schroeder contends that willfulness is an issue of
fact that the court cannot decide on summary judgment. See
Plaintiff's Memorandum of Law in Support of Objection to Motion
for Summary Judgment at 11. Accordingly, the court must
determine whether, as a matter of law, plaintiff can recover back
wages for a period beyond the two or three years provided in the
statute of limitations and whether summary judgment on the issue
of willfulness is appropriate. See 29 U.S.C. § 255 (1994).
(1) Continuina Violations
Schroeder argues that the continuing violation theory, which
courts have applied to both Title VII and EPA claims, allows
plaintiffs to recover for violations that otherwise would be
barred by the statute of limitations. The continuing violation
theory, according to Schroeder, can allow her to recover back pay
for violations more than two or three years old if those
violations have a substantial relationship with another violation
13 that has occurred within the limitations period. However, for
the reasons discussed below, the court finds that Schroeder has
misconstrued the effect of the continuing violation theory.
Courts have applied the continuing violation theory to a
number of different situations that arise under both Title VII
and the EPA. See Thomas H. Brooks, et al.. Second Generation
Problems Facing Employers in Employment Discrimination Cases:
Continuing Violations, Pendent State Claims, and Double
Attorneys' Fees, 49 Law & Contemp. Probs. 25, 26 (1986). In the
Title VII context, plaintiffs use the continuing violation theory
to avoid Title VII's reguirement that a plaintiff file a charge
with the EEOC within 180 days of the violation.3 See id. Courts
allow plaintiffs in Title VII cases to recover back pay for
violations that occurred more than 180 days before their
complaint to the EEOC. However, a separate section of Title VII
limits recovery of back pay to two years before the date of the
complaint. See 42 U.S.C. § 200e-5(g); Sabree v. United Bhd. of
Carpenters & Joiners, 921 F.2d 396, 401 (1st Cir. 1990) . The
EPA, however, does not contain an administrative filing
reguirement. Therefore, in the EPA context, the continuing
3Unlike the EPA, Title VII reguires an employee to file a complaint with the EEOC within 180 or 300 days after the alleged discrimination took place. A separate section provides that a court can award back pay for a period of two years before the filing of a complaint. 14 violation theory is only relevant to the single applicable
statute of limitations provided in 29 U.S.C. § 255.
In the EPA context, plaintiffs usually apply the continuing
violation theory to overcome the defendant's argument that the
statute of limitations completely bars the action. See, e.g.,
Mitchell v. Jefferson County Bd. of Educ., 936 F.2d 539, 548
(11th Cir. 1991); Brewster v. Barnes, 788 F.2d 985, 993 (4th Cir.
1986). In these cases, the label "continuing violation" may be a
bit of a misnomer. Courts applying the theory do not treat the
alleged unegual pay as a single violation continuing over time.
Rather, courts use the theory to overcome a defendant's
contention that the cause of action accrued when the employer set
the salary or when the employee accepted the position. See id.
Instead of viewing the cause of action as one that accrued on one
date, courts applying the continuing violation theory look at
each paycheck as a separate violation of the statute. See, e.g.,
id. Thus, although a violation has been occurring for a period
of time, the statute of limitations will not prevent an employee
from bringing suit.
Although most courts accept the premise that each paycheck
represents a new violation, restarting the statute of
limitations, these courts do not allow plaintiffs to collect back
pay for a period in excess of two years or, for a willful
15 violation, three years. See Ashley v. Boyle's Famous Corned Beef
C o ., 66 F.3d 164, 168 (8th Cir. 1995) (en banc); Gandy v.
Sullivan County, Tenn., 24 F.3d 861, 865 (6th Cir. 1994);
Mitchell, supra, 936 F.2d at 548; Hamilton v. 1st Source Bank,
895 F.2d 159, 165 (4th Cir. 1990). Limiting plaintiff's recovery
to two or three years is consistent with Congress's intent to
"place a limit on employers' exposure to unanticipated contingent
liabilities." McLaughlin, supra, 486 U.S. at 132.
In this case, the court cannot allow the plaintiff to
recover back wages for a period of more than two or three years
prior to the filing of her complaint.
(2) Willfulness
Sager asks the court to enter summary judgment on the issue
of willfulness because, it contends, Schroeder has no evidence to
support her contention that Sager acted willfully. On the other
hand, Schroeder contends that she has met her burden. The
parties also appear to disagree over the appropriate standard for
determining willfulness. Sager states that Schroeder must show
that "Sager knew or had reckless disregard for whether its
conduct was prohibited by the EPA." Defendant's Memorandum of
Law in Support of its Motion for Summary Judgment at 18.
However, Schroeder believes that "the test for determining
16 whether there had been a willful violation of EPA is 'whether the
employer knew or had reason to know that the [Fair Labor
Standards Act] was applicable to its employment practices.
Neither bad faith nor knowledge that a particular practice
violates the Act is required.'" Plaintiff's Memorandum of Law in
Support of Objection to Motion for Summary Judgment at 9 (quoting
EEOC v. McCarthy, 768 F.2d 1, 5 (1st Cir. 1985)).
According to the Supreme Court, a defendant willfully
violates the Equal Pay Act when that defendant either knows it is
violating the statute or acts with reckless disregard for whether
its conduct is prohibited by law. See McLaughlin v. Richland
Shoe C o ., 486 U.S. 128, 132 (1987); Reich v. Newspapers of New
England, Inc., 44 F.3d 1060, 1079 (1st Cir. 1995) . The standard
cited by the plaintiff--whether the defendant knew the statute
was applicable to its conduct--is no longer good law. See
McLaughlin, supra, 486 U.S. at 132. Although the United States
Court of Appeals for the First Circuit previously employed the
more inclusive standard of willfulness, the more stringent
standard the Supreme Court announced in McLaughlin replaced that
standard. Compare EEOC v. McCarthy, 768 F.2d 1, 5 (1st Cir.
1985) (holding employer willful when it knew or had reason to
know that the statute was applicable to its employment
practices), with Reich, supra, 44 F.3d at 1069 (quoting
17 McLaughlin, supra, 486 U.S. at 133). In McLaughlin, the Supreme
Court resolved a split in the circuits over the proper standard
for determining willfulness. See 486 U.S. at 131. The Court
adopted the more stringent standard, noting that by adopting a
two-tiered structure in the statute of limitations. Congress had
intended to retain the general two year limit and to "draw a
significant distinction between ordinary violations and willful
violations." Id. at 132.
Although willfulness is a factual determination that
normally should be decided by a jury, to survive summary judgment
on the issue of willfulness the plaintiff must show more than a
potential violation of the statute. See Lopez v. Corporacion
Azucarera de Puerto Rico, 938 F.2d 1510, 1515 (1st Cir. 1991) .
To create a factual dispute about whether the defendant willfully
violated the statute, the plaintiff must proffer evidence
indicating that the defendant knew or recklessly disregarded the
possibility it was violating the law. See McLaughlin, supra, 486
U.S. at 132.
Although the court reguires some evidence of willfulness,
the court will not reguire direct evidence that the employer knew
it was violating the statute. A plaintiff can prove willfulness
by providing direct evidence, such as evidence that the defendant
previously has been cited for violating the statute and has
18 failed to alter its conduct. However, the plaintiff need not
show that the defendant knew its conduct was illegal. An
employer who recklessly disregards the law is also willful. See
McLaughlin, supra, 486 U.S. at 132. The finder of fact may infer
that the defendant was reckless when the employer was not relying
on a defensible interpretation of the law. See, e.g.. Miller v.
Maxwell's Int'l, Inc., 991 F.2d 583, 586 (9th Cir. 1993), cert.
denied 510 U.S. 1109 (1994); Glenn v. General Motors Corp., 841
F.2d 1567, 1573 (11th Cir.), cert. denied 488 U.S. 948 (1988);
Dean v. United Food Stores, Inc., 767 F. Supp. 236, 241 (D.N.M.
1991). For instance, in Glenn, the defendant sought to justify a
pay discrepancy between men and women by arguing that it paid as
much as was reguired to induce the individuals to accept the
position. See Glenn, supra, 841 F.2d at 1570. Thus, the
employer argued, the pay differential was based on a factor other
than sex. See id. The Eleventh Circuit, in upholding the
finding of willfulness, noted that "GM showed reckless disregard
because . . . GM sought to rely on the market force theory, a
theory long discredited by this Court and the Supreme Court."
Id. at 1573 .
In this case, Schroeder relies on three affidavits to meet
her burden. See Plaintiff's Memorandum in Support of Objection
to Motion for Summary Judgment at 10. Plaintiff points to her
19 own allegations relating to Sager's failure to promote her.
Specifically, Schroeder indicates that she confronted her
supervisor, Mr. Murphy, making him aware that she believed his
failure to promote her in 1988 was discriminatory. See Schroeder
Aff. 5 1. In addition, Schroeder offers the affidavit of Kelly
Smith, an employee in Sager's Hingham, Massachusetts, office, who
alleges that Sager discriminated against her by failing to
promote her and by demoting her after she announced that she was
pregnant. See Smith Aff. 55 2-12. These incidents, construed in
the light most favorable to the plaintiff, may demonstrate a
pattern of Title VII violations; however, they do not reflect
directly upon the EPA claim. Evidence that the defendant made
discriminatory promotion decisions does not show that the
defendant knew or recklessly disregarded the possibility that it
was violating the EPA.
The only evidence plaintiff offers that bears directly upon
her EPA claim is the affidavit of Gabrielle Jenkins, which shows
that Sager paid male salespeople in Massachusetts a higher wage
than Schroeder received. See Jenkins Second Aff. 55 4, 9. The
jury may or may not determine that this discrepancy amounts to a
violation of the EPA. However, this evidence does nothing to
establish the willfulness of the purported violation. Sager
contends that its Massachusetts and New Hampshire offices are not
20 the same "establishment," as required by the EPA. Although Sager
ultimately may prove to have misinterpreted the law, its position
cannot be said to amount to reckless disregard for the law. See
EEOC v. Madison Community School Dist. No. 12, 818 F.2d 577, 586
(7th Cir. 1987) ("maintaining a defensible view of what a
statute requires is not the same thing as willfully violatingthe
statute").
Without any evidence--direct or circumstantial--that Sager's
alleged violation of the EPA was willful, the court must enter
summary judgment in favor of the defendant on the issue of
willfulness. Because Schroeder has not provided evidence that
Sager willfully violated the EPA, if she is successful at trial,
she may recover back pay for the period from April 6, 1993 (two
years prior to her original complaint) until August 22, 1994 (the
day she resigned from Sager).
2. Defendant's Motion in Limine
Sager asks the court to exclude evidence of certain gender
references made by Sager personnel. Sager contends that Mr.
Murphy's comment that Schroeder was denied a promotion in 1988
because she needed to be home with her stepchildren, Mr.
Gabriel's comment about her appearance, and Mr. Norton's
reference to one of her former customers as a "lesbian" are
21 irrelevant and should be excluded under Rule 402, Fed. R. Evid.
In the alternative, Sager argues that the court should exclude
the evidence because its prejudicial tendency substantially
outweighs any probative value of this evidence. See Rule 403,
Fed. R. Evid.
The standard of relevancy under the Federal Rules of
Evidence is guite lenient. The court must consider evidence
relevant when it has "any tendency to make the existence of any
fact that is of conseguence to the determination of the action
more probable . . . than it would be without the evidence." Rule
401, Fed. R. Evid. Although evidence of minimal probative value
may meet this standard, the court may exclude such evidence "if
its probative value is substantially outweighed by the danger of
unfair prejudice . . . ." Rule 403, Fed. R. Evid.
The relevance of the evidence in guestion here will depend
upon the purpose for which the evidence is introduced. To prove
her prima facie claim, Schroeder only needs show that "the
employer paid different wages to an employee of the opposite sex
for substantially egual work." Byrd v. Ronayne, 61 F.3d 1026,
1033 (1st Cir. 1995). The evidence of improper gender references
is not relevant to Schroeder's prima facie case. However, this
evidence may yet have some probative value.
At trial, if Sager establishes one of the affirmative
22 defenses provided by the EPA, the evidence of improper statements
may be relevant in rebuttal to show pretext. However, the court
cannot rule on the relevancy, or the potential of unfair
prejudice until that time. The relevancy of this evidence will
depend upon the course of trial and may raise a problem of
conditional relevance. For instance, the relevance of
Schroeder's evidence may depend upon her establishing that the
people who made the comments were capable of influencing her
compensation. The court will determine the admissibility of this
evidence when the issue arises at trial.
3. Plaintiff's Motion in Limine to Exclude the Testimony of
Defendant's Expert
Schroeder has asked the court to exclude the testimony of
Sager's expert, William Alden, for failure to provide an adeguate
expert report pursuant to Rule 26(a)(2)(B), Fed. R. Civ. P.
Schroeder contends that Mr. Aider's one-page letter stating that
in his experience generally prevailing wages in New Hampshire are
significantly lower than in Massachusetts is insufficient. In
the alternative, Schroeder reguests that the court limit Mr.
Alden's testimony to the substance of his expert report or
exclude Mr. Alden from testifying as an expert. Sager counters
that Mr. Aider's statement satisfies the reguirements of Rule
23 2 6 (a) (2) (B)
Rule 26 requires an expert disclosure to contain
a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Rule 26(a)(2)(B), Fed. R. Civ. P. At issue here is whether Mr.
Alden's letter contains a complete statement of the basis and
reasons for his opinion and the data and information considered
by Mr. Alden in forming his opinion. See id.
The court finds that Mr. Alden's report is not sufficiently
detailed. An expert report must be detailed enough to allow the
opposing party to prepare its cross examination and should often
dispense with the need to depose the expert. See Ja m e s W. M o o r e ,
M o o r e 's F e d e r a l P r a c t i c e § 2 6.23 [2] [b]; Rule 2 6, Fed. R. Civ. P.,
advisory committee's note; Sierra Club, Lone Star Chapter v.
Cedar Point Oil, 73 F.3d 546, 571 (5th Cir. 1996) . However,
because Sager's expert disclosure was timely and complied with
the other requirements of Rule 26, the court will not exclude Mr.
Alden's testimony for failure to comply. The court grants Sager
24 until November 6, 1997, to provide a complete statement of the
basis of Mr. Alden's testimony.
The court will defer decision on Mr. Aider's qualification
as an expert witness until the time of trial. At that time,
Schroeder may examine the witness voir dire without the jury
present.
4. Defendant's Motion for a Protective Order Pursuant to Rule
26(c)(1), Fed. R. Civ. P.
On August 22, 1997, Sager asked the court to issue an order
suspending defendant's obligation to respond to Schroeder's
interrogatories and requests for production of documents until
the court had ruled upon the preceding pending motions. Because
the court has herein ruled on all pending motions, defendant's
request is moot, and is therefore denied.
5. Plaintiff's Motion to Compel
Schroeder asks the court to compel Sager to answer her third
and fourth sets of interrogatories. Sager contends that the
court should deny Schroeder's motion to compel because Schroeder
has exceeded the twenty-five interrogatories permitted by Rule
33(a), Fed. R. Civ. P., and her additional interrogatories are
excessive. Sager also argues that Schroeder's discovery requests
25 pertaining to its subsidiary Northstar are irrelevant.
Rule 3 3 (a) requires the court to grant leave to serve
additional interrogatories "to the extent consistent with the
principles of Rule 26(b)(2)." Rule 33(a), Fed. R. Civ. P. Rule
26(b) permits the court to limit discovery when 1) the discovery
is unreasonably cumulative; 2)the party seeking discovery has had
ample opportunity to obtain the information sought; or 3) the
burden or expense of the proposed discovery outweighs its
benefit.
In this case, the court finds that compelling Sager to
answer Schroeder's third set of interrogatories is appropriate.
The information sought through these interrogatories is not
unreasonably cumulative. Furthermore, although Schroeder has had
some opportunity to obtain the information sought, the court is
mindful that early discovery focused on Schroeder's Title VII
complaint. Because Schroeder did not add her EPA claim until
relatively late in this litigation, the court considers it
appropriate to allow these interrogatories. Finally, despite
Sager's contention to the contrary, the court is not convinced
that answering the three questions contained in Schroeder's third
set of interrogatories would be unduly burdensome.
The court, however, is not convinced that Schroeder's
requests for information relating to Northstar are relevant to
26 the pending action. Under the federal rules, while liberal
discovery is permitted, parties may only obtain discovery
regarding matters that are relevant to the subject matter
involved in the pending dispute. Rule 26(b)(1), Fed. R. Civ. P.
In this case, because Northstar was a separate entity at the
relevant times, and sold a completely different product line,
information about Northstar is not relevant to Schroeder's case
against Sager. Furthermore, even if information about Northstar
is of some relevance to Schroeder's case, its importance to the
case is so minimal that the burden to Sager of producing this
information clearly would outweigh its benefit.
Accordingly, the court orders Sager to answer Schroeder's
interrogatories only to the extent that they reguest information
pertaining to Sager.
Conclusion
For the aforementioned reasons, the court hereby 1) grants
in part and denies in part Defendant's Motion for Summary
Judgment (document 47); 2) denies Plaintiff's Motion in Limine to
Exclude the Testimony of Defendant's Expert (document 50), but
orders defendant to produce a complete statement of the basis for
Mr. Aider's testimony by November 6, 1997; 3) denies Defendant's
Motion in Limine (document 54); 4) denies Defendant's Motion for
27 a Protective Order Pursuant to Fed. R. Civ. P. 26(c) (1) (document
62); and 5) grants Plaintiff's Motion to Compel (document 65) to
the extent that plaintiff requests information pertaining to
Sager.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
October 8, 1997
cc: Thomas J. Pappas, Esq. Linda S. Johnson, Esq. James M. Hughes, Esq.