Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 1 of 27
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 08-60331-CIV-MOORE/SIMONTON
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`ISMAEL RICHARD SOTO,
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`Plaintiff,
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`v.
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`GENENTECH, INC.,
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`Defendant.
`________________________________/
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`ORDER GRANTING PLAINTIFF’S MOTION TO
`COMPEL RESPONSES TO ITS FIRST SET OF INTERROGATORIES AND
`ITS FIRST REQUEST FOR PRODUCTION OF DOCUMENTS, AND
`DENYING PLAINTIFF’S MOTION FOR SANCTIONS
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`Presently pending before the Court is Plaintiff’s Motion to Compel Discovery (DE
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`# 25), which is referred to the undersigned Magistrate Judge (D.E. 25). The Defendant
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`filed a Response to the Motion (D.E. 35) and Plaintiff filed a Reply (D.E. 36). A hearing on
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`the Motion to Compel was held on October 1, 2008, and this Order incorporates rulings
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`made at that hearing, as well as, rulings based upon the Parties’ submissions and the
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`Defendant’s post-hearing submissions.
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`For the reasons stated below, Plaintiff Ismael Richard Soto’s Motion to Compel is
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`granted, in part and his Motion for Sanctions is denied. All discovery required by this
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`Order shall be provided on or before October 31, 2008.
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`I.
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`Background
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`Ismael Richard Soto (“Soto”) proceeds on his two-count complaint, in which he
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`asserts a claim for national origin discrimination (Count I) and retaliation (Count II) both
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`in violation of the Florida Civil Rights Act, (“FRCA”)(Fla. Stat. §§ 760.01 et seq.) (D.E. 1).
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 2 of 27
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`The underlying facts of this case as set forth in the complaint are as follows. Beginning
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`on or about December 13, 2004, Mr. Soto, who is of Puerto Rican descent, was hired as
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`a clinical specialist by Defendant Genentech, a pharmaceutical company with its
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`principal address in San Francisco, California (DE # 1 at 10). In that capacity, Mr. Soto
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`was responsible for selling the growth hormone drug Nutropin, in the Southern Florida
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`territory. Plaintiff alleges that approximately four months after he began his employment
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`with Genentech, a co-worker, of Cuban descent, began making discriminatory comments
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`about Puerto Ricans (D.E. 1 at 10). Mr. Soto alleges that after he made a complaint to
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`human resources manager, Jill Genelza, regarding his co-worker’s comments, he
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`began to be treated differently by his manager, Kenneth Stevens, who was, at times,
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`present when the co-worker made the discriminatory comments (D.E . 1 at 11). Mr. Soto
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`alleges that Genentech’s human resources department failed to pursue his complaint
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`diligently and, a month after he made his complaint, Mr. Stevens gave him a negative
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`performance review and told Mr. Soto that he was angry at him for making the
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`discrimination complaint. Mr. Stevens also allegedly told Mr. Soto that Ms. Genelza
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`referred to Mr. Soto, among other things, as a “troublemaker” (D.E. 1 at 12). A few
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`months later, Mr. Soto was terminated by his Manager, Mr. Stevens, and his Regional
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`Manager, Craig Helms. Mr. Soto alleges that his managers told him that he was being
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`terminated for violating company policy, guidance policies created by the
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`Pharmaceutical Research and Manufacturers of America (PhRMA), regulations issued by
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`the Food and Drug Administration (FDA) and the Office of Inspector General’s
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`Compliance Program Guidance for Pharmaceutical Manufacturers (OIG), for providing to
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`one of the physicians in Mr. Soto’s sales territory, a list of insurers that may cover
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`Nutropin use for patients, and a letter explaining why Nutropin was a better choice for
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 3 of 27
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`growth hormone therapy. Soto alleges that he was actually fired in retaliation for his
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`discrimination complaint (D.E. 1 at 12).
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`In its Answer, Genentech admits that the Plaintiff made a complaint to Jill Genelza
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`concerning a co-worker but stated that Plaintiff was “informed” of his termination by
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`Kenneth Stevens and Craig Helms after he admitted that he had disseminated
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`promotional materials which had not been created or approved in accordance with
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`defendant’s “Healthcare Compliance Practices.”
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`Contemporaneously with its complaint, Plaintiff served its first set of
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`interrogatories and requests for production on Defendant which were responded to on
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`May 19, 2008 and June 2, 2008, wherein Defendant raised several objections to various
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`requests. On July 23, 2008, Plaintiff filed a Motion to Compel responses to six of
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`Genentech’s interrogatory responses and thirteen requests for production (D.E. 25). On
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`August 18, 2008, Defendant served its Amended Responses to Plaintiff’s Requests and
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`on August 25, 2008 filed a Response to Plaintiff’s Motion to Compel (D.E. 35). On August
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`29, 2008, Plaintiff filed a Reply to Defendant’s Response to the Motion to Compel (D.E.
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`36).
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`On October 1, 2008, the undersigned held a hearing on Plaintiff’s Motion to
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`Compel. At the hearing, after the Parties presented their respective arguments, the
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`undersigned inquired as to the number of clinical specialists employed by Genentech in
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`the North Carolina-Florida region and was informed that counsel did not have the exact
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`number but would be able to obtain the information. The undersigned also inquired
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`about the number of retaliation claims made nationwide as compared to those made in
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`this region. The undersigned also noted that the Defendant failed to produce evidence
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`regarding the burdensomeness of responding to Plaintiff’s discovery requests. The
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 4 of 27
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`undersigned therefore directed the Defendant to file supplemental declarations to
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`respond to the issues raised at the hearing.
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`On October 3 and 8, 2008, the Defendant filed supplemental declarations in
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`compliance with this Court’s Order. The undersigned has reviewed the supplemental
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`filings, and considered the other submissions from the Parties, as well as, the
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`arguments made at the hearing, and is now ready to rule upon the Plaintiff’s Motion to
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`Compel.
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`II.
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`Analysis
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`The central issue in dispute in this matter is the scope of discovery that Plaintiff
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`is entitled to under the facts of this case. In its Motion to Compel, Plaintiff argues that
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`pursuant to Fed.R.CIv.P. 26(b), he is entitled to any non-privileged discovery that is
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`relevant to his claims (D.E. 25 at 20).
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`A.
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`General Objections
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`In its Opposition to Plaintiff’s Motion to Compel, Genentech raises several
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`general arguments regarding the appropriate scope of discovery in employment
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`discrimination cases, such as the one at bar (D.E. 35). First, Genentech asserts that the
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`discovery in this matter should be limited geographically to Plaintiff’s employment unit.
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`Genentech next argues that the relevant time period for purposes of discovery is
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`between December 2004 through May 2006 when Plaintiff worked for Genentech and was
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`supervised by Craig Helms and Kenneth Stevens. Third, Genentech asserts that
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`discovery should be limited to Plaintiff’s similarly situated comparators which,
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`according to Genentech, are those persons within Plaintiff’s employment unit who
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`violated the same policy as Plaintiff. Finally, Genentech asserts that discovery should
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`be limited to previous complaints or charges against Genentech of the same type made
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 5 of 27
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`by Plaintiff; i.e., harassment on the basis of national origin and retaliation for claiming
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`harassment on the basis of national origin and maintains that discovery into other forms
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`of discrimination have no relevance to the issues presented in this case.
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`Initially, the undersigned notes that Federal Rule of Civil Procedure 26 provides
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`that the proper scope of discovery is not limited to information admissible at trial, but
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`can also include information “reasonably calculated to lead to the discovery of
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`admissible evidence.” Fed.R.Civ.P. 26(b)(1). The Rule authorizes a court to limit
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`discovery where such discovery is cumulative or duplicative, and the discovery is
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`“unduly burdensome or expensive, taking into account the needs of the case, the
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`amount in controversy, limitations on the parties' resources, and the importance of the
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`issues at stake in the litigation.” Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550,
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`1558-59 (11th Cir. 1985). Further, the party resisting discovery must show specifically
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`how each discovery request is not relevant or how each question is overly broad,
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`burdensome or oppressive. Id.
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`The court will now examine each of Genentech’s general objections to Plaintiff’s
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`discovery requests, in turn.
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`1)
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`Geographic Scope of Discovery
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`In its Motion to Compel and Reply, and again at the hearing on the Motion to
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`Compel, the Plaintiff argued, inter alia, that the geographic scope of discovery should
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`extend to decision makers at Genentech’s national office, as certain managers and
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`human resources employees in San Francisco were also involved in decisions regarding
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`Mr. Soto’s employment. In particular, Plaintiff asserts that Lisa Brock, Genentech’s
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`then-Director of Sales, and Jill Genelza, Senior Human Resources Manager, were both
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`involved in the decision to terminate Mr. Soto. See, (D.E. 25 at 5; D.E. 36 at 1-2). Plaintiff
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 6 of 27
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`points to an exchange of e-mails regarding Mr. Soto’s termination between Ms. Brock
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`and Ms. Genelza to support this claim. See, (D.E. 25-7, 25-8).
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`In response, Genentech argues that the geographic scope of discovery in
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`employment discrimination cases is limited to a plaintiff’s work unit (D.E. 35). Thus,
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`Genentech asserts that in this case, the proper geographical scope should be limited to
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`the group of clinical sales specialists that were supervised by Craig Helms and Kenneth
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`Stevens. In addition, Genentech argues that the decision to terminate Mr. Soto was
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`made only by Mr. Helms and Mr. Stevens and therefore, nationwide discovery of
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`Genentech is not appropriate, as the decision makers were located in the sales region
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`that extends from North Carolina to Miami, Florida. In support of this position,
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`Genentech has submitted the Affidavit of Jill Genelza, wherein she states that she did
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`not make the decision to terminate Richard Soto and did not have the authority to
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`terminate Mr. Soto or any other clinical sales specialists (D.E. 35-5), and the Affidavit of
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`Craig Helms, wherein he states that he made the final decision to terminate Richard Soto
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`(D.E. 35-4).
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`In addition, the Defendant cites to Earley v. Champion Int’l, Corp., 907 F.2d 1077
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`(11th Cir. 1990) for the holding that discovery in employment discrimination cases
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`should be limited to the plaintiff’s work unit, if the employment decisions, at issue were
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`made at the local level. In Earley, the Eleventh Circuit affirmed a district court’s denial of
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`a plaintiff’s request to compel nationwide discovery in an age discrimination case. Id. In
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`so doing, the Eleventh Circuit stated, in relevant part, “[w]here, as here, the employment
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`decisions were made locally, discovery on intent may be limited to the employing unit.”
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`Id. at 1084. Further, the reviewing court noted that the district court found the request
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`for nationwide discovery to be unduly burdensome on the defendant and further, stated
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 7 of 27
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`“[a] vague possibility that loose and sweeping discovery might turn up something
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`suggesting that the [actions were] discriminatorily motivated does not show
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`particularized need and likely relevance that would require moving discovery beyond the
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`natural focus of the inquiry”. Id. at 1084-85 (citing Joslin Goods Co., v. EEOC, 483 F. 2d
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`178, 183-84 (10th Cir. 1973)).
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`Plaintiff argues that Ms. Genelza’s Affidavit is insufficient to demonstrate that she
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`was not involved in the decision to terminate Mr. Soto. In this regard, Plaintiff asserts
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`that he has a right to discovery to develop a “cat’s paw” theory which does not allow an
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`employer to escape liability where the decision maker merely “rubber stamps” the
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`recommendation of the harasser. See, e.g. Harkins v. AirTran Airways, Inc., 237
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`Fed.Appx. 513, 521 n.5 (11th Cir. 2007)(explaining under cat’s paw theory, if a plaintiff
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`shows that colleague with racial animus lacked power to terminate employee, but
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`colleague made biased recommendation to superior that the employee be discharged
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`and that recommendation was followed, it may be inferred that it was the colleague's
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`racial animus was the cause in fact of the termination...the superior who carries out the
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`adverse employment action acts merely as the “cat's paw” for the person with the
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`discriminatory animus). However, this is not a cat’s paw case, as there is no implication
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`that the alleged harasser, who according to Plaintiff’s complaint was a co-worker of Mr.
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`Soto, made a recommendation to terminate Mr. Soto, that was “rubber stamped” by
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`Plaintiff’s managers. Thus, this is not a case where the decision makers acted as a
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`mere conduit for the harasser’s discriminatory animus. See, Llampallas v. Mini-Circuits,
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`Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998).
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`Similarly, to the extent that the Plaintiff asserts that his managers acted as the
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`“cat’s paw” in relation to Ms. Genelza, again the analysis is inapplicable as well, as the
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 8 of 27
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`only evidence is to the contrary that Ms. Genelza recommended that Mr. Soto be
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`terminated for an infraction, that Mr. Stevens and Mr. Helms failed to investigate the
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`alleged infraction, and merely “rubber stamped” Ms. Genelza’s biased recommendation.
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`Indeed, courts have held that where a decision maker terminates or disciplines an
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`employee after an independent investigation by that decision maker, a plaintiff is unable
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`to demonstrate that the termination was caused by the biased recommendation and thus
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`is unable to establish “cat’s paw” theory liability. See, Tucker v. Talladega City Schools,
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`171 Fed.Appx. 289 (11th Cir. 2006)(holding that “cat’s paw” theory not demonstrated
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`where board with power to terminate employee conducted hearing into recommendation
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`from allegedly biased superintendent) Accord, Stimpson v. City of Tuscaloosa, 186 F. 3d
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`1328, 1331 (11th Cir. 1999). In this case, notwithstanding any bias motives that Ms.
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`Genelza may have held, the Plaintiff has not shown that Plaintiff’s managers were not
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`the initial source of the allegation that Plaintiff violated Genentech procedures, and
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`failed to independently determine if a violation occurred. Thus, Plaintiff is not entitled to
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`national discovery based upon this theory.
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`Moreover, Plaintiff has not demonstrated that the decision to terminate Mr. Soto
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`extended beyond the decision makers in the North Carolina to Florida region, Mr. Helms
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`and Mr. Stevens. Rather, the materials submitted by the Plaintiff on this issue do not
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`demonstrate that Lisa Brock had any input as to Mr. Soto’s termination, but rather
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`merely “signed-off” on the termination form for Craig Helms, who was apparently not
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`available. Similarly, although Jill Genelza was involved in the initial investigation of Mr.
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`Soto’s discrimination claim and perhaps spoke to the Plaintiff’s Managers regarding his
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`termination, it does not appear that she had the authority nor initiated any action to
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`terminate Mr. Soto and thus, her involvement, if any, does not raise the inference that
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 9 of 27
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`Genentech’s national management was involved in the decision to terminate Mr. Soto.
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`Also, the e-mail between Craig Helms, Kenneth Stevens and Stacey Miller, which Plaintiff
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`introduced at the hearing which is bate-stamped DP9000068, confirms that Mr. Helms
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`and Mr. Stevens, rather than human resources, were familiar with the circumstances and
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`dates leading to Mr. Soto’s termination, and thus again it appears that Mr. Soto’s
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`termination was not made by the national office. Thus, as in Earley, the employment
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`decisions regarding Mr. Soto were made locally, and, absent an additional showing,
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`discovery shall be limited accordingly.
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`Further, in Jill Genelza’s supplemental declaration, she indicates that Genentech
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`employs in excess of 850 employees in the position of Clinical Specialists, and/or Senior
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`Clinical Specialists and Territory Managers, nationally (D.E. 41-2). Thus, absent
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`additional information demonstrating the involvement of Genentech national personnel
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`in Mr. Soto’s termination, discovery on a national level is likely irrelevant and unduly
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`burdensome.
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`Defendant also seeks to limit the geographic scope of Plaintiff’s requests
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`regarding Genentech employees who may have been disciplined or terminated.
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`Defendant asserts that the relevant context in which Plaintiff must demonstrate
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`disparate treatment is within his own employment unit and not within Genentech as a
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`whole. (D.E. 35 at 4). However, whether the Plaintiff should be allowed to inquire about
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`Genentech employees beyond his own unit, is determined, in certain circumstances, by
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`the number of employees in Plaintiff’s employment unit. In Adkins v. Christie, 488 F. 3d
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`1324 (11th Cir. 2007), for example, the Eleventh Circuit reversed a district court’s
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`decision to limit the scope of discovery sought by a plaintiff-physician in a civil rights
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`action to those physicians in the plaintiff’s department as opposed to all physicians at
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 10 of 27
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`the medical center where plaintiff worked. The reviewing court reasoned that while the
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`plaintiff’s unit was an autonomous unit within the hospital, some of infractions at issue
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`arose from hospital-wide rules and given the limited number of physicians in the
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`plaintiff’s department, plaintiff was unable to place his case in the context of the larger
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`disciplinary process at the hospital. Id. at 1330-31.
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`It is for this reason that at the hearing, the undersigned sought additional
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`information regarding the number of employees in Plaintiff’s employment unit. The
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`Defendant has now submitted a supplemental Declaration in response to this court’s
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`inquiry which indicates that between December 13, 2004 and the present, Craig Helms
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`had forty-nine employees reporting to him, not including division managers. See, [D.E.
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`45-3]. In addition, the Defendant has filed a supplemental Declaration of Jill Genelza
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`wherein she states, “...[a]t any given point in time, there are 20-30 Clinical Specialists or
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`Senior Clinical Specialists reporting to the four Division Managers who report to Mr.
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`Helms.” Thus, the undersigned finds that, unlike Adkins, there are a sufficient number
`1
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`of people in Plaintiff’s job unit in this region to allow the Plaintiff to have relevant
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`comparators for assessing the employment actions taken against him in comparison to
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`employment actions taken against other similarly situated employees for violating
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`certain rules.
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`Accordingly, the scope of Plaintiff’s discovery request shall be limited consistent
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`with this finding, and as more fully set forth below for each discovery request at issue.
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` The Court is aware that the Plaintiff views the two declarations as inconsistent,
`1
`as the Declaration of Ms. Genelza “inflates” the number of clinical specialists in the
`region. See (D.E. 48 at 2). However, the court does not read the declarations as
`inconsistent, and more importantly, reaches the same legal conclusion under either of
`the two declarations.
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`1100
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 11 of 27
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`The undersigned notes, however, that this ruling is issued upon the unequivocal
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`declarations of Ms. Genelza and Craig Helms regarding decision making and the lack of
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`any substantial contrary evidence in the record. As stated at the hearing, if evidence is
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`uncovered during the discovery process that impugns the reliability of these
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`declarations, Plaintiff may renew the motion to compel, and if granted, the Defendant will
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`bear the expense of providing additional discovery on an expedited basis.
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`In addition, the facts of this case are somewhat unique in that, by all accounts,
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`the Plaintiff lodged his initial discrimination complaint with Ms. Genelza, in the human
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`resources office in San Francisco. Plaintiff further alleges that Ms. Genelza did not
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`pursue his complaint diligently, asked him if he wanted to confront the offending co-
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`worker himself, and referred to the Plaintiff derogatorily when speaking to Mr. Stevens
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`about the Plaintiff’s discrimination complaint (D.E. 1 at 11-12). Thus, under these
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`allegations, Ms. Genelza’s involvement in the investigation or processing of
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`discrimination or retaliation complaints filed by other employees, whether in Plaintiff’s
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`employment unit or not, may indeed be relevant to Plaintiff’s claim that Ms. Genelza
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`improperly influenced the decision makers in this case in retaliation for Plaintiff making
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`a discrimination complaint. As stated in Ferrell v. Masland Carpets, Inc., 97 F.Supp. 2d
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`1114, 1125-26 (S.D. Ala. 2000), “The Eleventh Circuit has repeatedly recognized that an
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`employer may be held liable for employment discrimination if the actions of a neutral
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`decision maker are somehow influenced by the prejudice of a non-decision maker.”
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`Citing, Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th Cir.1999); Weaver v. Casa
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`Gallardo, Inc., 922 F.2d 1515, 1527 (11th Cir.1991); Jones v. Gerwens, 874 F.2d 1534, 1541
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`n.13 (11th Cir.1989). Thus, as to the complaints of retaliation identified in the Declaration
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`of Stacey Miller, the scope of discovery extends to all complaints of retaliation following
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`1111
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 12 of 27
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`a complaint of race or national origin discrimination (See, discussion of claims of race
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`discrimination and retaliation, infra, pp., 16-17), where Ms. Genelza was involved in
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`either the investigation or processing of that claim. There are a limited number of such
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`claims, and discovery therefore is not unduly burdensome.
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`2) Violation of Genentech Internal Policies
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`The Parties also disagree as to whether the Plaintiff should be allowed to obtain
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`discovery on persons who were disciplined for violations of any company rule or only
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`those rules which Plaintiff allegedly violated. First, the undersigned notes that the
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`Parties disagree as to the basis for the Plaintiff’s termination. The Plaintiff asserts that
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`when he was terminated, he was informed by Helms and Stevens that his termination
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`was due to violations of company policy, guidance policies created by the
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`Pharmaceutical Research and Manufacturers of America (PhRMA), regulations under the
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`Food and Drug Administration (FDA) and the Office of Inspector General’s Compliance
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`Program Guidance fo Pharmaceutical Manufacturers (OIG). See (D.E. 1 at 3). Defendant,
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`on the other hand, asserts that Mr. Soto was terminated only for violating Genentech
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`Healthcare Compliance Procedures; by failing to obtain permission and approval from
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`the Promotional Review Committee (“PRC”) to disseminate promotional materials
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`created by Plaintiff and not created by Genentech.
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`Genentech further maintains that in cases alleging discriminatory discipline, a
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`plaintiff must provide examples of similarly situated comparators who were involved or
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`accused of the same or similar conduct yet were disciplined in different ways.
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`Genentech argues that pursuant to the Eleventh Circuit’s ruling in Burke-Fowler v.
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`Orange County Florida, 447 F.3d 1319, 1323 (11th Cir. 2006), the quantity and quality of
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`the comparator’s misconduct must be nearly identical to that of the plaintiff’s
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 13 of 27
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`misconduct in order for a court to make a determination of whether the employees
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`received different discipline. Genentech therefore asserts that the scope of discovery
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`should be limited to persons who were employed as clinical sales specialists supervised
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`by Helms and Stevens, who violated the same policy that Plaintiff allegedly violated (D.E.
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`32 at 7-8).
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`However, although Defendant correctly states the holding in Burke-Fowler, the
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`instant matter is procedurally distinct from that case, as the Eleventh Circuit’s review
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`therein arose after the district court granted summary judgment in favor of the employer,
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`finding that the plaintiff failed to identify employees who were involved in or accused of
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`the same or similar conduct and were disciplined in different ways. See, Burke-Fowler,
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`447 F.3d at 1323. Thus, the court in that matter did not address the scope of discovery
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`that a plaintiff would be entitled to under the facts of that case. In fact, even though the
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`plaintiff in that case ultimately was unsuccessful in identifying appropriate comparators
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`to survive a motion for summary judgment, presumably the plaintiff was allowed to
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`obtain discovery on other employees who were disciplined for other infractions, in an
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`effort to meet his burden of showing discriminatory discipline.
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`Similarly, in McCann v. Tillman, 526 F.3d 1370 (11th Cir. 2008), a case cited by the
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`Defendant at the hearing on the Motion to Compel, the reviewing court examined
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`whether the plaintiff had established a prima facie case of discrimination, after the
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`district court granted summary judgment on behalf of the employer. Thus, again, the
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`issue was not the scope of discovery that the plaintiff was entitled to obtain in an effort
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`to establish her prima facie case, but whether plaintiff had presented similar
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 14 of 27
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`comparators for plaintiff to establish discriminatory discipline.2
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`In addition, as correctly argued by Plaintiff, how other Genentech employees were
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`disciplined after they committed the same or similar infraction as Plaintiff, may be
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`relevant for the Plaintiff to show that the reasons for his termination were pretextual. As
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`stated in Flanagan v. Travelers Ins. Co., 111 F.R.D. 42 (W.D.N.Y. 1986), a case cited by
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`Plaintiff in its Motion, “... [c]omparative information is necessary to afford plaintiff a fair
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`opportunity to develop her case and may be relevant to establish the pretextual nature of
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`defendant's conduct,” citing, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
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`1817, 36 L. Ed.2d 668 (1973); Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir.1975),
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`[and] “a plaintiff who must shoulder the burden of proving that the reasons given for his
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`discharge are pretextual should not normally be denied the information necessary to
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`establish that claim.” Id. citing, Marshall v. Westinghouse Electric Corp., 576 F.2d 588,
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`592 (5th Cir. 1978).
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`Further, as noted previously, the Parties disagree as to Genentech’s reasons for
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`Plaintiff’s termination. Mr. Soto maintains that he was told that he was terminated not
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`just for a violation of the procedures related to the PRC, but also for violating other rules
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`The Defendant has also cited to Gehring v. Case Corp., 43 F. 3d 340 (7th Cir.
`2
`1995) for support of this argument but the district court in that case, concluded, after
`examining the personnel files of other employees, that the privacy rights of other
`employees would be invaded if the personnel files were turned over, and more
`importantly, that the plaintiff wanted to use the evidence not for purposes of comparison
`but to put the defendant’s personnel practices on trial. Id. At 342. The reviewing court
`determined that the district court did not abuse its discretion is curtailing the plaintiff’s
`discovery on those grounds. In this case, there has been no suggestion that Mr. Soto
`seeks to obtain other personnel files for the purpose of putting Genentech’s personnel
`practices on trial, but rather that Plaintiff seeks to find other Genentech employees who
`disciplined differently than Plaintiff, in order to support Plaintiff’s pretext argument.
`Thus, Gehring is factually distinct and not dispositive of the appropriate scope of
`Plaintiff’s discovery herein.
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 15 of 27
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`and regulations that applied to pharmaceutical sales. As such, the Plaintiff is entitled to
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`discover information about employees who allegedly violated regulations and rules
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`related to the solicitations of physicians, whether such rules and regulations are found
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`in Genentech’s Internal Healthcare Compliance Practices, guidance policies created by
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`the Pharmaceutical Research and Manufacturers of America (PhRMA), regulations
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`issued by the Food and Drug Administration (FDA) and/or regulations or rules issued by
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`the Office of Inspector General’s Compliance Program Guidance fo Pharmaceutical
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`Manufacturers (OIG). Once the discovery is provided, Plaintiff will be able to argue that
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`certain violations are sufficiently similar to be considered; and, Defendant will be able to
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`argue that the evidence is irrelevant.
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`3) Temporal Scope
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`Defendant also argues that the Plaintiff’s requests should be limited to a time
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`frame reasonably related to the allegations in the Plaintiff’s Complaint. Defendant
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`asserts that the relevant time frame is when Plaintiff was employed by Genentech,
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`between December 2004 and May 2006.
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`The Plaintiff counters that in discrimination cases, courts have allowed broad
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`discovery. As noted by the district court in Mawulawde v. Board of Regents of
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`University System of Georgia, 2007 WL 2460774 *10 (S.D. Ga. 2007), “[a]lthough courts
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`have permitted discovery periods as long as eight to ten years, the norm in employment
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`discrimination cases seems to be anywhere between three and five years.”
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`In this case, the Plaintiff was hired by Defendant on December 13, 2004 and was
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`terminated on May 22, 2006. The Plaintiff has sought information and documents in its
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`discovery requests ranging from January 1, 2003 until the present time. The
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`undersigned finds that such requests, which seek information for less than six years, is
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`Case 0:08-cv-60331-KMM Document 49 Entered on FLSD Docket 10/17/2008 Page 16 of 27
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`not outside of the range of acceptable discovery scope in employment discrimination
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`claims. Thus, the temporal scope of Plaintiff’s discovery requests shall extend from
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`January 1, 2003 until the present time. The Defendant must supplement any of its
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`responses wherein it did not provide information or documents that covered this time
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`frame.
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`4)
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`Scope of Complaints Alleging Retaliation
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`Defendant also argues that the Plaintiff’s discovery should be limited to claims of
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`discrimination and retaliation related to national origin. However, as conceded by the
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`Defendant at the hearing, claims of national origin are often mislabeled or identified as
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`race discrimination claims, and thus, the Plaintiff’s request for discrimination related to
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`race, as well as national origin, should properly be permitted.
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`In addition, as noted in Meeks v. Computer Assoc. International, 15 F.3d 1013,
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`1021 (11th Cir. 1994), retaliation is a separate offense under Title VII. (citing, 42 U.S.C.A.
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`§ 2000e-3(a); Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491 (11th
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`Cir.1989)). To recover for retaliation, the plaintiff need not prove the underlying claim
`3
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`of discrimination, so long as she had a reasonable good faith belief that the
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`discrimination existed. Id. (quotations omitted). Rather, to establish a prima facie case of
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`retaliation under Title VII, a plaintiff must show that (1) he engaged in statutorily
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`protected expression; (2) he suffered an adverse employment action; and (3) there is
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`While Plaintiff’s Complaint only alleges violations of the Florida Civil Rights Act,
`3
`the Eleventh Circuit has stated, “... Florida courts have held that decisions construing
`Title VII are applicable when considering claims under the Florida Civil Rights Act,
`because the Florida act was patterned after Title VII.” Harper v. Blockbuster Entm't
`Corp., 139 F.3d 1385, 1387 (11th Cir.1998)(citations omitted). Consequently, the analysis
`of Title VII case law in this opinion applies to Plaintiff’s FCRA claims.
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