However, the Federal Rules only apply in the absence of an applicable regulatory provision. The implementing regulations for actions brought under Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793, are found at 41 C.F.R. Chapter 60. 41 C.F.R. §60-30.9 does not limit the number of interrogatories that a party may serve upon another party. American argues, however, that 41 C.F.R. §60-30.9 does not specifically provide a party with the right to an unlimited number of interrogatories. American contends that many of OFCCP's interrogatory requests are overbroad and burdensome, and suggests that OFCCP is engaging in a "fishing expedition." American also generally objects to discovery requests that impose an obligation upon American to investigate or discover information that is equally accessible to OFCCP. American contends that OFCCP is attempting to shift the cost of preparing its case onto American.
I note that OFCCP has served American with 221 interrogatories, many of which consist of compound questions and include subparts, as well as 44 requests for admissions and 133 document requests. American has responded with a 171 page response to interrogatories, which was later supplemented by a 33 page response, and has produced over 1,700 documents. Although OFCCP is not limited to 25 interrogatories under 41 C.F.R. §60-30.9, neither is it entitled to swamp American with endless discovery requests in its attempt to generate evidence. Accordingly, I will not compel responses to interrogatories that go beyond the reasonable scope of discovery.
D. Scope of Discovery
American contends that many of the discovery requests are impermissible because they concern events following the OFCCP compliance review that prompted this action. Thus, American argues that the scope of the "relevant discovery period" is January 1, 1988 through December 31, 1989, the period covered by the compliance review. American further argues that the discovery requests are overbroad to the extent that they require information regarding individuals other than the 96 applicants listed in Attachment A of the Complaint.
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OFCCP argues that the issue of American's screening practices and employment decisions from 1989 to the present is raised in the complaint, which states that "since at least January 1, 1988, American has failed or refused to comply with Section 503." Additionally, OFCCP states that there is no time limit specified in section 503 or the implementing regulations at 41 C.F.R, §60-741 regarding the appropriate discovery period. (Pursuant to 41 C.F.R. §60-741.27, OFCCP is authorized to "take appropriate action for noncompliance" in regard to the affirmative action requirement imposed upon Government contractors.) OFCCP also justifies its requests on the ground that they may reveal a "general pattern of discrimination."
Given the vast amount of discovery material already generated in response to OFCCP's discovery requests, I decline to further expand the issues in this case. Thus, I find that American's subsequent pre-employment medical evaluation practices are not relevant to the issue of American's decisions not to hire the 96 individuals listed in Attachment A during 1988 and 1989. Therefore, I deny OFCCP's motion to compel responses to discovery requests pertaining to events that occurred subsequent to the period covered by the 1988-1989 compliance review.
II. First Set of Interrogatories
A. Federal Contracts
Interrogatory no. 1 requests that American identify each Federal contract or subcontract in an amount greater than $2,500 in effect from January 1, 1988, until the present. In response, American provided information regarding its contracts with the U.S. Postal Service. OFCCP states that American has failed to provide information regarding certain other contracts with the General service Administration, and requests that American be compelled to produce information and documents regarding these GSA contracts, which were identified during OFCCP's compliance review. OFCCP additionally requests that American be compelled to produce all documents identified in response to this interrogatory. American contends that it cannot locate information regarding any government contracts beyond those it has already identified.
Since OFCCP has requested an order cancelling all of American's government contracts until American has complied with Section 503, the identity of all these contracts is relevant to this action. Accordingly, I grant OFCCP's motion to compel American to provide information regarding these contracts.
B. Medical Standards
OFCCP alleges that the 96 applicants listed in Attachment A of the complaint were rejected on the grounds of having one or more
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medical conditions involving hearing, vision, blood pressure, diabetes, acrophobia, migraines, osteoporosis, asthma, alcohol abuse, the use of perception altering medications and pancreatitis. Interrogatories numbers 2 through 88 concern the medical standards applied by American in the process of deciding whether to hire applicants with these conditions. OFCCP requests that American be compelled to provide complete responses to the following interrogatories:
Interrogatory no. 8 requires American to state whether it "contends that the inability to pass American's pre-employment hearing test renders an applicant incapable of performing the essential elements of a clerical position. If yes, state each and every fact, and identify each document relied upon for that contention, and state which elements of the job they are incapable of performing." OFCCP additionally requests that American be compelled to produce all documents identified in response to interrogatory no 8. (This request appears as no. 9 in OFCCP's first set of requests for production of documents.)
In response, American states that "there were many different clerical positions and some may have required good hearing and some may not have. The extent of hearing required could vary from position to position and the extent an individual could communicate in spite of a hearing loss would vary". In its opposition to OFCCP's motion to compel, American states that there is only one applicant at issue with hearing loss who applied for one clerical position.
I find that the request is overbroad and vague because it does not identify the particular clerical positions to which it refers. Therefore, I deny OFCCP's request to compel American to respond further to interrogatory no. 8.
Interrogatory Nos. 13 and 14 request that American identify all fleet service clerks who were retained in employment despite a hearing loss. In response, American refers to its response to interrogatory No. 2, which lists individuals who were hired despite a hearing deficit. American also refers to the medical files for 85 fleet service clerks retained in employment, without indicating which of these individuals were retained in employment despite a hearing loss. OFCCP requests that American be compelled to provide the names of individuals who, once hired, developed hearing loss and were retained in employment. OFCCP also requests that American be compelled to produce all documents identified in response to interrogatories nos. 13 and 14. (These requests appear as nos. 14 and no. 15 in the first set of requests for production of documents.)
I find that American has provided sufficient information regarding each employee's hearing tests to allow OFCCP to determine when a hearing loss occurred, and thus, to determine whether the
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employee was retained in employment despite a hearing loss. Therefore, I deny OFCCP's request to compel American to respond further to interrogatories 13 and 14.
Interrogatory No. 27 requires American to describe its policy on hiring individuals with significant joint or muscle problems. American contends that the term "significant joint or muscle problems" is vague and ambiguous, and states that it had no policy but had "general unwritten guidelines which the medical and personnel staff followed". In its supplemental response, American states that it did not hire "individuals who posed a reasonable probability of substantial harm" and that American "individually evaluated each applicant to determine if he or she could safely perform the essential functions of the job with or without reasonable accommodation." I find that American has adequately responded to the interrogatory. Therefore, I deny OFCCP's request to compel American to respond further to interrogatory no. 27.
Interrogatory No. 79 requires American to "state whether American contends that employing a person taking perception altering medications for a fleet service clerk position presents an unreasonable risk of future injury." In response, American states that the use of certain perception altering medications could result in an unreasonable risk of harm and directs attention to the Physician's Desk Reference. OFCCP argues that American should be compelled to "provide the specific facts it relied on the [sic] Physician's Desk Reference to conclude that employing a person using perception altering medication presented a [sic] unreasonable risk of future injury." OFCCP also requests that American be compelled to produce all documents identified in response to interrogatory no. 79. American argues that this request is overly broad and irrelevant because OFCCP did not limit the inquiry to perception altering medications at issue in this case. I agree, and thus I deny OFCCP's request to compel American to respond further to interrogatory no. 79.
C. Reasons for Rejections
Interrogatories numbers 95 through 99 involve American's reasons for rejecting the 96 named applicants, and the basis for American's belief that each of the applicants was not disabled, not qualified, and could not work safely without posing undue risk of injury.
Interrogatory No. 95 requires American to state whether each individual on Attachment A of the complaint was hired by American, and if not, American's reason for not hiring each individual; whether American contended that the individual was not disabled, was not qualified, and posed a risk of future injury, as well as facts and documents relied upon by American for each of the above contentions, and the individuals who participated in the decision to reject each individual. OFCCP argues that American should be
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required to "state specifically its actual reasons for rejecting each class member, or, if such reason has already been provided, to supplement its responses to that effect." OFCCP notes that American did not provide the names of any individuals other than medical personnel involved in clerical hires. OFCCP also requests that American be compelled to produce all documents identified in response to interrogatory no. 95(b).
American states that its applicant files were inadvertently discarded, leaving only the medical files of the 96 applicants, which have already been produced. Thus, American contends that it has provided all the information available to it regarding the 96 applicants. American also argues that it is not required to conduct outside investigations, such as deposing the 96 applicants, to respond to OFCCP's discovery requests. American also states that it has no information regarding persons responsible for hiring applicants for clerical positions, as requested in interrogatory no. 95(b) (vii).
On the basis of American's sworn statement that it has no further information regarding the reasons why each applicant was rejected, I deny OFCCP's request to compel further response.
Interrogatory No. 96 requires that American state, for each of approximately 100 job duties identified in response to previous interrogatories, whether it contends that performance of such duty by any of the 96 individuals at issue would present an unreasonable risk of future injury. American objects on the ground that a full response would require American to answer approximately 9,600 (96 x 100) questions. I find that the interrogatory is overbroad. Therefore, I deny OFCCP's request to compel American to respond further to interrogatory No. 96.
Interrogatory No. 98 requires American to describe any individual assessments made of the ability of each of the class members to perform the positions for which they applied. American argues that the medical files that have already been provided to OFCCP contain all the available information regarding individual assessments of the applicants at issue. OFCCP also requests that American be compelled to produce all documents identified in response to interrogatory no. 98. Based on American's statement that it has provided all the information currently available regarding individual assessments, I deny OFCCP's request to compel further response to interrogatory no. 98.
Interrogatory No. 99 requires American to describe its accommodation efforts as to each of the class members. American responded with a reference to Interrogatory Nos. 2-88. In its supplemental response, American stated that it had "determined that under the circumstances, no accommodation was reasonable." OFCCP requests that American "be compelled to answer with specificity as to the facts it relied on to conclude that no accommodation was
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reasonable or describe the efforts American made to accommodate the 96 class members." OFCCP also requests that American be compelled to produce all documents identified in response to interrogatory no. 99.
American argues that it has already provided OFCCP with full medical records of the 96 applicants, job descriptions, and explanations of the safety risks raised by each medical condition and position. American contends that the question of whether accommodation was possible is a question which must be resolved at the hearing in light of testimony by experts and other witnesses. In light of American's assertion that it has provided all the information available at this time, I deny OFCCP's request to compel a further response to interrogatory no. 99.
D. Addresses and Telephone Numbers of American Employees
Interrogatories nos. 101. 103. 105. 107. 109. 111. 113. 115 and 117 request home addresses and telephone numbers of current and former American employees, including management and non-management personnel who were involved in hiring decisions and individuals who performed medical evaluations or who participated in developing medical standards. American has provided OFCCP with the last known addresses, but not telephone numbers, of former American non- management employees. Contending that OFCCP can contact current employees at their work address, American refuses to disclose the home addresses and telephone numbers of current employees or the home telephone numbers of former employees on the basis of those individuals' right to privacy.
OFCCP argues that because American employees might be afraid to respond candidly to OFCCP's questions if contacted at work, it must be supplied with the home telephone numbers and addresses of current non-management employees. In a letter to American dated September 16, 1994, OFCCP agreed not to conduct ex parte interviews with former or current management employees with authority to "speak for" the company. OFCCP argues, however, that it needs the home addresses of former management employees in order to notice depositions.2
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In my judgment the interests of all concerned will be served by ordering American to supply the requested telephone numbers and addresses for all former and current employees except those with authority to speak for the company; and, further, to supply addresses, either work addresses or home addresses, of former and current management employees with authority to bind the company for the limited purpose of allowing OFCCP to notice depositions.
E. Computerized Personnel Records
Interrogatory Nos. 130-135 concern American's system of storing personnel information on computers. OFCCP argues that personnel information regarding wages and hours worked would allow OFCCP to "calculate and present evidence regarding back pay for the 96 rejected applicants." OFCCP also argues that the records of other employees with similar medical conditions may be relevant. American claims that the requests are not "reasonably calculated to lead the discovery of admissible evidence," and are "overbroad, burdensome and oppressive." I agree that the subject requests are overbroad and unduly burdensome and oppressive. Therefore, I deny OFCCP's request to compel responses to Interrogatories Nos. 130-135.
II. Second Set of Interrogatories and Requests for Production of Documents
This set of discovery requests seeks "facts and documents which American relies upon in support of each of the 24 affirmative defenses raised in its Answer, as well as the individuals with knowledge of such facts." American objects to each interrogatory on the ground that it exceeds the limit of 25 interrogatories established by Rule 33 of the Federal Rules of Civil Procedure. As noted, I have determined that the limit on interrogatories set forth in the Federal Rules of Civil Procedure is not applicable in this action. (Supra, pg. 3).
American further objects to each of the interrogatories in OFCCP's second set on the ground that it "seeks information already provided by American in its 171 pages of responses to Plaintiff's First Set of Interrogatories." OFCCP argues that American failed to fully respond to the first set of interrogatories. Additionally, OFCCP argues that many of the interrogatories in the second set are unrelated to the issues addressed by the first set of interrogatories.
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OFCCP specifically cites American's failure to adequately respond to inquiries regarding American's affirmative defense that the 96 applicants at issue were not "handicapped" as defined by Section 503. Interrogatory number 55 requests that American identify facts, regulations and statutes which support that contention; number 56 relates to documents containing facts relevant to this defense; and number 57 requests American to identify persons with knowledge of those facts. These interrogatories involve the question that was posed by interrogatory number 95(b)(iv) of the first set of interrogatories, which required American to state whether it contends that each of the 96 applicants was not disabled. In response, American stated that none of the 96 are substantially limited in a major life activity; OFCCP argues that this response is nothing more than a legal conclusion, OFCCP contends that since American did not adequately respond to inquiries in the first set regarding this issue, it cannot claim that it has provided the information requested in the second set. Similarly, OFCCP contends that American has failed to justify its contention that none of the applicants was "otherwise qualified."
By raising affirmative defenses, American has placed at issue the specific facts, documents, regulations and statutes upon which they are based. OFCCP is entitled to sufficient information regarding these affirmative defenses to enable it to prepare for trial. Therefore, I grant OFCCP's request to compel American to respond to the second set of interrogatories.
V. Requests for Admissions
OFCCP's requests for admissions required American to admit or deny the truth of such matters as American's policy on rejecting applicants for employment for non-flight positions on the basis of certain medical conditions, and American's failure to undertake individual assessments of the ability of applicants who did not meet the pre-employment medical standards. Although American answered the requests for admission within the time extension approved by the court, OFCCP moves for an order deeming admitted each of the matters asserted on the ground that American's response was not initially submitted as a sworn statement as required by 41 C.F.R. §60-30.9(b). It was not until November 14, 1994, that American filed a sworn verification.
American admits that it failed to timely file the verification, but points out that granting OFCCP's motion to deem these matters admitted would constitute a "terminating sanction." American cites Frankel v. International Scrap Iron and Metal Company, 157 F.Supp. 709 (1957), citing Conley v. Gibson, 78 S.Ct. 99, 103 (1957), in which the court stated "[t]he admissions cannot be taken as controlling. Decision should not be based on mere matters of pleadings or technical admission. As the United States
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Supreme Court has pointed out at the current term, the process of pleadings is to facilitate a proper decision on the merits." Id. at 713.
Considering that granting OFCCP's motion on the basis of American's failure to timely satisfy this technical requirement would foreclose a hearing on the merits of this case, and that OFCCP has failed to present factual evidence demonstrating that it has been prejudiced, I deny OFCCP's motion to deem admitted the requests for admissions.
VI. Expenses and Attorney's Fees
OFCCP cites Federal Rule of Civil Procedure 37(a)(4), which provides that if a motion to compel discovery is granted, "the court shall . . . require the party . . . whose conduct necessitated the motion . . . to pay the moving party the reasonable expenses incurred in obtaining the order, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust." OFCCP argues that since there is no specific provision in the OFCCP regulations regarding sanctions for violations of discovery rules, Rule 37(a)(4) applies.
American argues that 41 C.F.R. §60-30.15 provides for the imposition of sanctions only in the event that a party violates a court order. I find that to date, there has been no court order compelling responses to OFCCP's discovery requests. In addition, I find that American's opposition to the discovery requests is substantially justified. I therefore deny OFCCP's request to award expenses and attorney's fees incurred by OFCCP in seeking this order.
Order
It is therefore ordered that:
1. OFCCP's motion to compel American to supplement its response to interrogatory no. 1 of the first set of interrogatories is granted.
2. OFCCP's motion to compel American to provide home addresses and telephone numbers of current and former employees is granted to the extent that American is ordered to provide home addresses and home telephone numbers for the specified non-management employees, and to provide either home addresses or work addresses, but not telephone numbers, for the specified management employees.
3. OFCCP's motion to compel American to respond to the second set
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of interrogatories is granted
4. OFCCP's motion to compel responses to interrogatories nos. 8, 13, 14, 27, 79, 95, 96, 98, 99, and 130-135 is denied.
5. OFCCP's motion to have requests for admissions deemed admitted is denied.
6. OFCCP's motion for an order awarding it expenses and attorney's fees is denied.
ALFRED LINDEMAN
Administrative Law Judge
Dated: JAN 18 1995
San Francisco, CA
[ENDNOTES]
1 Rule 33 states that "without leave of court or written stipulation, any party may serve upon any other party written interrogatories not exceeding 25 in number including all discreet subparts."
2 OFCCP cites OFCCP v. USAir, 88-OFC-17 (1990), in which an administrative law judge granted OFCCP's motion to compel USAir to provide the home addresses and telephone numbers of former and current employees. The administrative law judge cited the ethical duty of OFCCP's attorneys not to communicate with a represented party on the other side without the permission of the party's lawyer or by authority of law, and stated that "ex parte contacts are barred with employees with authority to bind the organization or whose acts and omissions may be imputed to the organization." Accordingly, the administrative law judge ordered that USAir furnish the requested telephone numbers and addresses in question "except for those employees with speaking authority to bind the corporation." Id. at 3.
