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McFadden v. Ballard

June 29, 2007

VANESSA A. MCFADDEN, PLAINTIFF,
v.
BALLARD, SPAHR, ANDREWS, & INGERSOLL, LLP, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiff alleges that her employer (a) discriminated and retaliated against her on the basis of race in violation of Title VII, 42 U.S.C. § 2000e-16(a), the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the D.C. Human Rights Act, D.C. Code § 2-1402.11 et seq.; (b) discriminated and retaliated against her on the basis of disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the D.C. Human Rights Act, D.C. Code § 2-1402.11 et seq.; and (c) violated the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.

This case has been referred to me for resolution of all non-dispositive motions. Currently before me are Defendants' Motion to Test the Sufficiency of Plaintiff's Responses to Requests for Admission ("Defs. Mot. Test"); Defendants' Motion to Compel Plaintiff to Appear for Deposition, to Amend Motion Deadline, and for Sanctions ("Defs. Mot. Comp."); Defendants' Motion to Strike Objections and for Sanctions ("Defs. Mot. Strike"); and Plaintiff's Motion to Compel Defendant's Responses to Discovery Requests ("Pls. Mot."). For the reasons stated below, Defendants' motions will all be denied, and Plaintiff's motion will be granted in part and denied in part.

I. Background

Plaintiff Vanessa McFadden, an African-American female, began work as a fulltime legal secretary for Defendant, the law firm of Ballard Spahr Andrews & Ingersoll LLP ("Ballard Spahr"), in June 1989. Complaint ("Compl.") ¶¶ 12-13. In October 2002, her husband was diagnosed with cancer, and McFadden was initially excused from work to care for him. Compl. ¶¶ 17-18. Over the following months, McFadden requested additional leave and an adjusted part-time schedule to care for her ailing husband from her supervising partner, Mr. Charles Henck, and the Human Resources Manager, Ms. Riley-Jamison. She alleges Ballard Spahr and Ms. Riley-Jamison repeatedly violated the Family and Medical Leave Act ("FMLA") by denying her leave, misrepresenting the leave entitled to her under the FMLA, interfering with that entitlement, and failing to keep her husband's medical condition confidential. See generally Compl. ¶¶ 19-31. She also alleges she was subjected to harassing comments by Ms. Riley-Jamison and other Ballard Spahr employees that were designed to coerce her back into work and away from caring for her ill husband. Compl. ¶ 32.

In or around April 2003, McFadden began experiencing her own health problems that required additional absence from work, which Ballard Spahr approved. Compl. ¶¶ 36-38. Though she returned to work full time, she was diagnosed with a variety of ailments and her physical condition deteriorated. By October 2003, her physician declared her disabled and no longer able to continue working. Compl. ¶¶ 38-39. She eventually began receiving disability payments under Ballard Spahr's disability plans. Following the expiration of her leave period, McFadden alleges she requested returning to a position suitable for her disabling conditions but was instead terminated. Compl. ¶¶ 46-48. McFadden claims she was discriminated against on the basis of race and disability, treated differently than similarly situated white employees, and retaliated against for complaining of disparate treatment and taking FMLA and disability-related absences.

II. Defendant's Motion to Test the Sufficiency of Plaintiff's Responses to Requests for Admission

Defendants ask the Court to "test the sufficiency of Plaintiff Vanessa McFadden's Responses to Defendants' Requests for Admission." Defs. Mot. Test at 1. Defendants also ask the Court to deem specific requests to be admitted as true. Memorandum of Points and Authorities in Support of Defendants' Motion to Test the Sufficiency of Plaintiff's Responses to Requests for Admission ("Defs. Mem. Test") at 1.

McFadden alleges in her complaint that she was able to return to work as a receptionist and accommodate her disabilities following her own medical treatment, but Ballard Spahr refused to allow her to do so. See Compl. ¶ 48. According to Defendants, statements by McFadden's physicians and McFadden herself in seeking disability payments indicate that she is completely incapable of ever returning to work. Defs. Mem. Test at 2. In pursuing discovery, Ballard Spahr sought Plaintiff's medical records from McFadden, and she produced twenty-five pages of medical records from two physicians. Id. Believing this production inadequate in light of Plaintiff's medical condition, Defendants subpoenaed her health care providers and disability insurance carrier to obtain McFadden's medical records and insurance submissions, which generated over 200 pages of material. Id. at 2-3. Based on that production, Defendants propounded requests for admission upon McFadden regarding the contents of the medical records, many of which McFadden, according to Defendants, wrongfully denied. Id. at 3. Defendants thus ask the Court to intervene.

A. The Controversy

Defendants submitted requests for admission to McFadden on September 6, 2006. She responded on October 5, 2006, and Defendants were wholly unsatisfied with some of McFadden's denials without explanation. On October 12, Defendants forwarded a letter detailing their concerns and, before Plaintiff responded, filed the instant motion on October 25. Plaintiff forwarded a detailed letter on October 27, 2006, explaining her denials, and amended her responses accordingly. In Defendants' reply brief, Defendants claim that some responses, even as supplemented, remain inadequate.*fn1

The chart that follows indicates the Request for Admission, the objection McFadden initially made in her counsel's letter of October 26, 2006, McFadden's supplemental answers, and Defendants' current objection, despite the supplementation.

REQUEST, served 9/6/06OBJECTION VIA LETTER RESPONSE, 10/27/06SUPPLEMENTAL ANSWER, 11/6/06REMAINING OBJECTION, as of 11/13/06 5. Exhibit 5 (HCP 4-16) is a true and accurate copy of Plaintiff's medical records with Dr. Kristen Thomas.Ms. McFadden has never before seen many of these documents created and/or maintained by health care professionals, so she cannot verify under penalty of perjury their accuracy. She cannot verify records HCP 4-15 because she has not seen them before; she can admit HCP- 16, which she has seen. Will supplement accordingly.Admits HCP-16 but cannot verify truth and accuracy of remainder, so denies.Plaintiff required to make reasonable inquiry to answer request under FRCP 36 as records within Plaintiff's custody and control; she failed to do so, so request should be deemed admitted. 6. Exhibit 6 (HCP 19-949) is a true and accurate copy of Plaintiff's medical records with Dr. Brenda Berberian.Ms. McFadden has never before seen many of these documents created and/or maintained by health care professionals, so she cannot verify under penalty of perjury their accuracy. She admits to seeing HCP-23, 25, 26, 27, 28, 41, and 44; she has not seen and cannot verify the truth and accuracy of the remaining documents. Will supplement accordingly.Admits HCP-23, 25, 26, 27, 28, 41, 44 but cannot verify truth and accuracy of remainder, so denies.Plaintiff required to make reasonable inquiry to answer request under FRCP 36 as records within Plaintiff's custody and control; she failed to do so, so request should be deemed admitted. 10. Exhibit 10 (Unum 00107- 00122) is a true and accurate copy of Dr. Ajay Dashottar's medical records of Ms. McFadden.Ms. McFadden has never before seen many of these documents created and/or maintained by health care professionals, so she cannot verify under penalty of perjury their accuracy. She has never before seen Exhibit 10.[Defendants' counsel's 9/1/06 letter indicates Plaintiff's counsel had previously received Dr. Dashottar's documents; Plaintiff's counsel states that this is false.] Not included in supplemental answers.Plaintiff required to make reasonable inquiry to answer request under FRCP 36 as records within Plaintiff's custody and control; she failed to do so, so request should be deemed admitted. 11. Exhibit 11 (Unum 00171- 00218) is a true and accurate copy of Dr. Calvin Griffin's medical records of Ms. McFadden.Ms. McFadden has never before seen many of these documents created and/or maintained by health care professionals, so she cannot verify under penalty of perjury their accuracy. She has never before seen Exhibit 11.Not included in supplemental answers.Plaintiff required to make reasonable inquiry to answer request under FRCP 36 as records within Plaintiff's custody and control; she failed to do so, so request should be deemed admitted. 12. Exhibit 12 (Unum 00243- 00251) is a true and accurate copy of Dr. Mussenden's medical records of Ms. McFadden.Ms. McFadden is unaware of the documents identified in this request; she has admitted the truth and accuracy of the documents created by Dr. Mussenden of which she has been aware. Furthermore, some documents in this request (UNUM 243, 244, 249-51) appear to related to Dr. Armstrong.Not included in supplemental answers.Plaintiff required to make reasonable inquiry to answer request under FRCP 36 as records within Plaintiff's custody and control; she failed to do so, so request should be deemed admitted. 13. Exhibit 13 (Unum 00255-6) is a true and accurate copy of a letter from Dr. Clark to Unum Provident about Ms. McFadden.Ms. McFadden has never before seen many of these documents created and/or maintained by health care professionals, so she cannot verify under penalty of perjury their accuracy. She has never before seen Exhibit 13.Not included in supplemental answers.Plaintiff required to make reasonable inquiry to answer request under FRCP 36 as records within Plaintiff's custody and control; she failed to do so, so request should be deemed admitted. 32. In Exhibit 7, on bates-number HCP 53, Dr. Morgan states that Ms. McFadden feels that her memory is "not too good."Document speaks for itself. Statement referenced is only a fragment of a sentence. If Defendants insist on answer, "Ms. McFadden will supplement with an answer admitting to the entire statement."Acknowledges document contains full statement containing fragment, but cannot state under penalty of perjury this unsigned document was authored by Dr. Morgan.Qualified response that although document appears to be written by physician, she cannot attest to it, is inadequate. She failed to make reasonable inquiry so request should be deemed admitted. 34. In Exhibit 13, on bates-number Unum 00256, Dr. Clark wrote that "it is not to be expected that [Ms. McFadden] will ever be able to resume gainful employment" on March 27, 2004.Ms. McFadden has never before seen many of these documents created and/or maintained by health care professionals, so she cannot verify under penalty of perjury their accuracy. She has never before seen Exhibit 34.Acknowledges statement included on UNUM 00256, but cannot state under penalty of perjury that Dr. Clark "wrote" the statement.Qualified response that although document appears to be written by physician, she cannot attest to it, is inadequate. She failed to make reasonable inquiry so request should be deemed admitted. 37. In Exhibit 21, on bates-number Unum 00626 and 00628, Dr. Armstrong prescribed Ms. McFadden an oxygen canister for her lifetime.Response is valid. UNUM 626 is prescription issued by Dr. Armstrong for oxygen canister, but does not prescribe such an instrument "for her lifetime." UNUM 628 is document prepared by Lincare that states via "medical information . . . provided to our office during the patient intake process, . . . [t]he estimated length of need for oxygen therapy is 99 Mos. (Lifetime)." Thus, she cannot admit Dr. Armstrong prescribed an oxygen canister for her lifetime.Admits Dr. Armstrong prescribed oxygen canister but denies documents together indicate Dr. Armstrong prescribed it for her lifetime. Plaintiff is playing games with documents with phrasing of her response.Documents clearly demonstrate Dr. Armstrong prescribed home oxygen for life 40. Ms. McFadden received long-term disability benefits from Unum Provident retroactive to January, 2004.UNUM made onetime payment under reservation of rights clause covering January 14, 2004 through March 31, 2004, which still evaluating claim. Thus, McFadden has not received full LTD benefits from January 2004 to present. If this is not what Defendants intended to request for admission, "please clarify."Admits she received "payments" [as opposed to LRD benefits] from Unum Provident retroaction to January 2004.Claims now admitted, with change to qualifier that payments are for LTD benefits. Should admit payments are for LTD benefits or state why request is inaccurate. 43. The standard to be disabled for long-term disability insurance from social security is the inability to engage in any substantial gainful activity by reason of any medically determinate physical or mental impairments which can reasonably be expected to last for a continuous period of time of not less than 12 months.Calls for admission of legal test or standard.Calls for Plaintiff to admit or deny legal standard in contravention of FRCP 36, so denies. Confusing.Acknowledges standard comes from 20 CFR 404.1505 as standard for SSDI but argues Plaintiff denied without explanation. 44. Ms. McFadden was approved for benefits from Unum Provident in the amount of approximately $2,727.82 per month.Not addressed in letter.Deny.Plaintiff claims figures are inadequate; Defendants state exhibits and Plaintiff's own interrogatory responses indicate otherwise. 45. Ms. McFadden was approved for benefits from social security in the amount of approximately $1,497.00 per month.Not addressed in letter.Not included in supplemental answers.Not exactly addressed in reply; lumped in with above, #44.

As I have pointed out in other opinions, Requests for Admissions are not a discovery device but are designed to narrow the issues for trial. Nat'l Semiconductor Corp. v. Ramtron Int'l Corp., 265 F. Supp. 2d 71, 74 (D.D.C. 2003). Denial is an appropriate response to a Request for Admission under Rule 36, which provides that a respondent may either (1) object to a request on grounds that the matter is beyond the scope of discovery permitted by Rule 26(b)(1); (2) admit the request; (3) deny the request; (4) provide a detailed explanation as to why the request cannot be admitted or denied; or (5) provide some qualified admission as to parts of the request. Fed. R. Civ. P. 36(a). Moreover, Rule 37(c)(2) provides an automatic remedy. If the party requesting the admission later proves the genuineness of the document or the truth of the matter requested, the court may order the party that denied the request to pay the costs of her opponent in making that proof. Fed. R. Civ. P. 37(c)(2).

While Rule 37 unquestionably permits the court to determine "whether the answer complies with the requirement of [Rule 36 (a)]," the exercise of that power in this case is a waste of time.

First, I do not understand McFadden to be denying the authenticity of any of the documents to which Defendants refer in the Requests for Admission. Second, even if she did deny their authenticity, Defendants need only secure a certification by the custodian of the records as to their authenticity and that certification would overcome any objection that the records were not authentic and render them admissible under the business records exception to the hearsay rule. Fed R. Evid. 902(11) and 803(6). Once they are admitted, the documents themselves have whatever probative force they have, whether or not McFadden objected to their authenticity or their admissibility, or whether she interpreted them differently from Defendants. Rule 37(c)(2) would then permit Defendants to seek the cost of securing that certification, the sanction authorized by the Rule. There is therefore absolutely no reason to review the sufficiency of McFadden's responses, and Defendants' motion to test their sufficiency and for sanctions is denied.

III. Defendants' Motion to Compel Plaintiff to Appear for Deposition, to Amend Dispositive Motion ...


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