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Banks v. Office of the Senate Sergeantat-Arms and Doorkeeper

May 5, 2005


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


This case has been referred to me for full case management. Currently pending and ready for resolution is plaintiff's Motion for Discovery and Sanctions Pursuant to the Court's February 16, 2005 Order. For the reasons stated herein, the motion is granted in part and denied in part.


On May 22, 2003, the Assistant Senate Sergeant at Arms, Rick Edwards ("Edwards"),*fn1 fired Roy Banks ("Banks" or "plaintiff") because he believed that Banks told the Director of Human Resources, Doug Fertig ("Fertig"),*fn2 that if a certain employee ("S.R.") "wants to have people who will be subservient, he better go back to restaurants and manage Hispanics." Defendant's Opposition to Plaintiff's Motion and Memorandum in Support for Discovery and Sanctions ("Def.'s Opp."), Ex. 4. In a memorandum to Banks, Edwards indicated that Banks' comment "was racist and reflects an improper bias that will not be tolerated, especially in a manager." Id. Banks has challenged his termination as being improperly based on his race, age, alleged disability, sex, or in retaliation for various complaints or claims he has made. See Banks v. Office of the Senate Sergeant at Arms, 222 F.R.D. 7, 9 (D.D.C. 2004). Discovery in this matter has been long, protracted, and litigious. Currently pending before me is the issue of whether the court should award sanctions to plaintiff because defendant produced, after the close of discovery, a group of documents pertaining to an SAA investigation of whether Capitol Facilities managers favor Hispanics or whether there were any rumors that Capitol Facilities managers discriminated in that manner. Plaintiff seeks severe sanctions, including entry of default judgment, because he claims that the late production of these documents ("Investigatory Notes" or "Notes") has "changed everything about this case." Plaintiff's Motion and Memorandum in Support of Motion for Discovery and Sanctions Pursuant to the Court's February 16, 2005 Order ("Pl.'s Mot.") at 1-2. Defendant concedes that the documents were late but insists that they were only responsive to plaintiff's Third Request for Production of Documents. Thus, according to defendant, the notes were only one month late, and any harm plaintiff suffered can be easily remedied by asking questions about the investigation during the 30(b)(6) deposition, which was the only outstanding discovery matter at the time the documents were produced and which still has not been completed.


A. Legal Standard

Under Federal Rule of Civil Procedure ("Rule") 37, a court may sanction a party that fails to comply with a discovery order. Fed. R. Civ. P. 37(b)(2). The Federal Rules authorize a wide array of sanctions, including the award of reasonable attorney's fees and expenses, caused by the failure to obey a court order"unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust." Id. Similarly, under Rule 37(c)(1), the court may impose sanctions on a party that, without substantial justification, fails to disclose information required by Rule 26(a) or 26(e)(1). Fed. R. Civ. P. 37(c)(1). As I have recently noted, "[a] party's actions are substantially justified if the issue presented is one that 'could engender a responsible difference of opinion among conscientious, diligent[,] but reasonable advocates.'" Peterson v. Hantman, 227 F.R.D. 13, 16 (D.D.C. 2005) (quoting Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 200, 205 (D.D.C. 1998) (citations omitted)).

District courts are entrusted with broad discretion regarding whether to impose sanctions and the nature of the sanctions to be imposed. Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996); Steffan v. Cheney, 920 F.2d 74, 75 (D.C. Cir. 1990). However, the court's discretion is not without limits, and this Circuit has emphasized that any sanction awarded must be proportional to the wrongs done. Bonds, 93 F.3d at 808 ("The central requirement of Rule 37 is that 'any sanction must be 'just,' which requires in cases involving severe sanctions that the district court consider whether lesser sanctions would be more appropriate for the particular violation. The choice of sanction should be guided by the 'concept of proportionality' between offense and sanction.") (internal citations omitted).

B. Analysis

1. Whether the Investigatory Notes and Supporting Documents Were Responsive to Plaintiff's Discovery Requests

a. First Interrogatory Number 8 and First Document Request Number 10

On November 18, 2003, Banks propounded First Interrogatory Number 8, demanding that SSA describe any investigation into whether S.R. made any statement comparing African-American workers with Hispanic workers. Pl.'s Mot. at 14. The interrogatory sought the identification of all documents that were "part of the investigation or viewed by any investigator." Id. The accompanying request for production of documents, First Document Request Number 10, sought the production of the documents that were identified. Id. In his motion, Banks focuses his argument almost entirely on these discovery requests.

Brenda J. Pence ("Pence") was the SAA attorney responsible for answering the interrogatories. She objected to Interrogatory Number 8 as vague and ambiguous but also responded that no responsive documents existed.

In June 2003, Jean McComish ("McComish"), Senior Human Resources Administrator for SAA, interviewed four employees as part of her investigation into: (1) whether they heard allegations that Capitol Facilities management favors Hispanics because "they are more subservient/easier to push around;" and (2) whether they had heard any Capitol Facilities supervisor or manager say that he or she favors hiring Hispanics because they are "more subservient/easier to push around." Pl.'s Mot., Ex. A.

A woman named K.C. told McComish that she had never heard a manager or supervisor say that Hispanics are easier to push around or that he or she preferred to hire Hispanics. According to McComish's notes, K.C. then said:

About three or four months ago, [M.K.] and I were conversing after a night Facilities Worker was hired. [M.K.] told me that she favored a candidate who was a black male whereas [S.R.] had favored hiring a Hispanic male. [M.K.] told me 'I don't understand. This other fellow is more qualified. I don't know whether he [S.R.] prefers to hire Hispanics because they are more subservient/he thinks that they are more subservient.' The conversation never went any further than that. [M.K.] was venting. She was speaking out of ...

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