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Marshall v. District of Columbia Water and Sewage Authority

March 18, 2003


The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge.


This case has been referred to me by Judge Kennedy pursuant to LCvR 72.2(a) in order to resolve plaintiff's Motion to Compel Discovery Responses And For Sanctions. For the reasons set forth herein, plaintiff's motion to compel will be granted in part and denied in part.


Plaintiff, Ronald Marshall, brings this employment discrimination case against the District of Columbia Water & Sewage Authority ("WASA") alleging race discrimination. Specifically, plaintiff asserts that WASA engaged in a pattern and practice of discrimination against African Americans by failing to implement personnel policies which would allow supervisors to make the hiring decisions rather than "handpicking" the selectees. Complaint, ¶ 2-3a.

Plaintiff is an African American male who has been employed by WASA as a Civil Engineer since of October 1996, and was assigned to the Department of Engineering and Technical Services. Id., ¶ 9. In 1996, plaintiff was hired at the grade 12 level after applying for a grade 13 level position.

Leonard Benson, a personnel officer at WASA, allegedly decided to downgrade plaintiff's position and would only upgrade him after he completed a one year probationary period. At the end of the one year probationary period, plaintiff was not upgraded. Id., ¶ 11. In both 1997 and 1999, plaintiff applied for grade 13 positions in the Department of Engineering and Technical Services. In each instance, plaintiff was passed over and non-African Americans were selected for the positions. Id., ¶ 13.

On March 21, 2002, plaintiff served defendant WASA with written discovery requests. Defendant WASA responded to those requests on May 22, 2002, thirty days after the discovery due date. *fn1 On June 14, 2002, plaintiff informed defendant WASA that its responses were inadequate. As a result, the parties continued to correspond with one another in order to correct those deficiencies. Finally, on June 19, 2002, defendant WASA provided certain exhibits and a draft protective order, *fn2 supplementing their previous responses. D. Opp. at 2, Exhibit E. However, plaintiff still contends that defendant "WASA has improperly refused to provide responses to the following discovery requests: Interrogatory Nos.: 3, 5, 6 and 11. . . and Document Request Nos.: 1, 6, 7, 10, 11, 12, 14 and 16." Memorandum of Points and Authorities in Support of Plaintiff's Motion to Compel Discovery and for Sanctions ("P. Mot."), at 1, Exhibit A.


Plaintiff's motion to compel was filed on June 26, 2002, and in its opposition, filed on July 10, 2002, defendant WASA also makes many concessions with respect to plaintiff's discovery requests. However, defendant WASA maintains some of its previous objections. No reply was filed by plaintiff. Accordingly, I will rule on each separate discovery response that plaintiff takes issue with in its motion to compel.

1. Interrogatory #3: Plaintiff requested the identities, by name, race, sex, and age, of all WASA employees for fiscal years 1996-2000 in the Department of Engineering and Technical Services. Specifically, plaintiff requested the date of hire, hiring grade, current grade, all promotions, education and professional licences, hiring salary, and current salary of each employee. P. Mot. at 6. In it opposition papers, defendant WASA agreed to "provide the requested information, with the exception of age and sex." D. Opp. at 5. Because plaintiff has made neither a claim of sex discrimination nor age discrimination, the gender and age of the employees at WASA are irrelevant to the alleged race discrimination claim. Therefore, I will sustain WASA's objection. Hardrick v. Legal Services Corp., 96 F.R.D. 617, 618 (D.D.C. 1983).

2. Interrogatories #5 & #6: Plaintiff requested defendant WASA to identify all positions filled by the Department of Engineering and Technical Services from 1996-2000 and the identity of the person hired for the position. P. Mot. at 7. WASA has provided the information in a chart. D. Opp. at 6, Exhibit E. I will, therefore, deny plaintiff's motion to compel any additional information. However, defendant WASA, in response to Interrogatory #6, did not produce a "best qualified list" for each of the subject positions. If defendant WASA does not have a "best qualified list" for each position, then so be it. However, for the positions for which a "best qualified list" does exist, defendant WASA is ordered to produce it to plaintiff. Minority Employees at NASA (MEAN) v. Beggs, 723 F.2d 958, 962 (D.C. Cir. 1983)(finding that statistical and comparative information is relevant evidence in an individual discrimination claim); Glenn v. Williams, 209 F.R.D. 279, 281 (D.D.C. 2002)(comparative evidence may be used to construct a prima facie case of discrimination).

3. Interrogatory #11: Plaintiff requested that defendant WASA "identify by name, race, sex and age each applicant for a structural, civil, and [sic] or any other engineer position filled . . . between fiscal years[,] 1996 and 2000." P. Mot. at 7. In its opposition, defendant WASA, "in an effort to demonstrate good faith," agreed to produce the recruitment and selection files relating to all structural or civil engineer positions filed during 1996-2000. D. Opp. at 7. *fn3 Accordingly, I will deny plaintiff's motion to compel any additional information.

4. Document Request #1: Plaintiff seeks production of all documents used in defendant

WASA's Answers to Interrogatories. According to its June 19, 2002 letter to plaintiff's counsel, defendant WASA agreed to produce all responsive, non-privileged documents. D. Opp. at 8, Exhibit E. However, defendant WASA still maintains its objection based on work product doctrine and attorney-client privilege. In order to allow plaintiff to ascertain the validity of the claim of privilege, I will order defendant WASA to submit for my in camera inspection ...

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