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Bellinger v. Astrue

April 1, 2010

CELIA BELLINGER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gold, S., U.S. Magistrate Judge

MEMORANDUM AND ORDER

Introduction

Plaintiff brings this lawsuit pursuant to Title VII of the Civil Rights Act claiming she was discriminated against because of her gender. Plaintiff's complaint asserts two causes of action, one contending that plaintiff was denied a promotion and a second alleging she received unequal pay. Compl. ¶¶ 90-112; Tr. of Jan. 26, 2009, Docket Entry 73, at 11. The underlying facts alleged by plaintiff in support of her claims are set forth in a Memorandum and Order dated August 13, 2009, Docket Entry 103, and are not repeated here.

Plaintiff has moved to compel responses to her Second Request for Production of Documents dated December 4, 2008. Docket Entries 109 through 112. Plaintiff's demands were discussed at length during two previous discovery conferences. See Tr. of Jan. 30, 2009, Docket Entry 74 and Tr. of Apr. 20, 2009, Docket Entry 80. Defendant has filed its opposition to plaintiff's motion, Docket Entries 115 through 120, and plaintiff has replied, Docket Entries 121 through 122. In its opposition, defendant organized the demands in contention into categories, and plaintiff largely adopted defendant's categories in her reply. I address each group of demands in turn below.

Discussion

A. Requests for "Automated Personnel Information" (Document Requests 10, 13, 30, 35, 43, 45, 47, 49, 52)

The first set of document requests in dispute seeks electronically stored personnel data concerning several individuals. Pl. Mem. at 16. Defendant has produced its official personnel files, created and maintained in paper form, for each of these individuals. Tr. of Jan. 30, 2009 at 18. The dispute between the parties centers around defendant's assertion that the electronically stored data sought by plaintiff either does not exist or cannot be retrieved in the manner plaintiff seeks, and plaintiff's insistence that defendant is wrong.

1) HRMIS and HRODS

Plaintiff first demands that defendant retrieve information from its Human Resources Management Information System ("HRMIS"), a database that defendant acknowledges it uses. Def. Mem. at 15. During the conference held on January 30, 2009, I directed defendant to provide any data that could be retrieved from HRMIS by searching for plaintiff's name, social security number, or other identifying number. Tr. of Jan. 30, 2009 at 87-88. Subsequently, defendant reported that, although specific queries may be submitted to HRMIS, information can not be retrieved by employee name, social security number, or other identifier. Def. Mem. at 15.

At a further discovery conference held on April 20, 2009, defendant reiterated that data cannot be retrieved from HRMIS by employee name or social security number, and that, instead, specific queries must be made. Tr. of Apr. 20, 2009 at 11. Upon learning this information, I directed defendant to provide plaintiff with a list of fields that could be queried in HRMIS and to run any queries (with certain exceptions not relevant here) sought by plaintiff. Tr. of Apr. 20, 2009 at 17-18. Defendant asserts -- apparently without contradiction -- that, as I directed, plaintiff was "apprised of the specific categories of information that can be retrieved from HRMIS using appropriate query methods" but "never requested that any specific queries be done for anyone." Def. Mem. at 19. Instead, plaintiff brings this motion, demanding -- despite defendant's repeated representations that it cannot be done -- that HRMIS data be gathered by employee name or identification number and then produced. Having made this choise, and given the extensive discovery to date and the ample opportunity provided to plaintiff to query the database, plaintiff should not be permitted to propound new demands now, asking that queries be run, when the close of discovery is finally in sight.

Plaintiff also seeks to compel the disclosure of information from a database known as the Human Resources Operational Data Store, or HRODS. Pl. Reply ¶ 23. However, the very documentation plaintiff relies upon to demonstrate that HRODS data should be available states that HRODS was, as of October, 2009, "under evaluation and development as a potential successor to HRMIS." Pl. Ex. 33, Docket Entry 112-14, at 2. In addition, during one of the court conferences addressed to plaintiff's document demands, counsel for defendant represented that "HRODS is a platform for accessing the HRMIS" and not a separate database. Tr. of Apr. 20, 2009 at 10.

There is no indication in the extensive record before the Court that defendant has now implemented HRODS in lieu of HRMIS, or that HRODS in its current form permits retrieval of data other than pursuant to the field-based inquiries I permitted but which were never pressed. For all these reasons, to the extent plaintiff's motion seeks to compel disclosure of HRMIS or HRODS data, the motion is denied.

2) EHRI and CPDF

The second aspect of plaintiff's motion seeks Central Personnel Data Files ("CPDF") and Enterprise Human Resources Integration ("EHRI") data. Defendant asserts that "SSA has not yet implemented the EHRI" and does not have CPDF information. Def. Mem. at 14-15. Plaintiff, however, has submitted documents indicating that the United States Office of Personnel Management ("OPM") instituted a government-wide "Enterprise Human Resources Integration initiative" no later than 2006, Pl. Ex. 28, Docket Entry 112-5, at 2, and that CPDF reporting by government agencies is part of that initiative, Pl. Ex. 31, Docket Entry 112-10. The documents submitted by plaintiff further indicate that "CPDF is used to provide human resources and demographic information on each Federal civilian employee." Pl. Ex. 32, Docket Entry 112-11, at 1 (apparently issued some time in 2007).

The statements contained in the exhibits submitted by plaintiff appear to be inconsistent with defendant's assertion that it does not maintain CPDF information and has not yet implemented the EHRI initiative. It may be that defendant continues to use only paper files and the HRMIS database and that, as asserted, there is no EHRI of CPDF data. However, it is also possible that defendant viewed its obligation to gather responsive documents too narrowly and produced only those electronic or hard copy documents in its actual possession and not data stored or maintained on its behalf by other agencies. My concern that this may be the case stems from my review of the exhibits cited above, which appear to indicate that EHRI and CPDF are in place, as well as the statement in defendant's memorandum of law that "SSA did not use either the EHRI or the CPDF, which appear to be OPM systems." Def. Mem. at 17 (emphasis added). Of course, if the data plaintiff seeks about defendant's employees exists, but is maintained by OPM and not defendant, then -- assuming defendant has access to the data -- it constitutes electronically stored information in defendant's "possession, custody or control" and must be produced. FED. R. CIV. P. 34(a)(1).

For these reasons, I direct counsel for defendant to determine whether OPM has EHRI or CPDF data for defendant's employees. If OPM has EHRI or CPDF data with respect to the persons that are the subject of plaintiff's demands, that data must be produced within two weeks. If the data does not exist, defendant shall submit an affidavit from a person or persons with knowledge that explains the apparent inconsistency between the exhibits referenced above and the absence of the electronically stored information described in those exhibits.

B. Requests for Other Personnel Information (Document Requests 9, 12, 29, ...


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