Kuklock v. Nevada Department Of Transportation

Vas€ 39.19-CV-UUS09-LAM-ULCLB VOCUMeNnt FEA UsIUGicUu Frage 1 OlO 3 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA JENNIFER KUKLOCK, Case No.: 3:19-cv-00369-LRH-CLB 8 Plaintiff, Vv.

10 STATE OF NEVADA, ex tel. its PROPOSED] ORDER REGARDING DEPARTMENT OF TRANSPORTATION, DISCOVERY 1] Defendants.

14] | Before the Court is Plaintiff Jennifer Kuklock’s Notice of Discovery Dispute (ECF No. 25). The 15|| Court has considered the Response filed by Defendant Nevada Department of Transportation || (“NDOT”) (ECF No. 26) and oral argument presented at the telephonic discovery status conference on || February 19, 2020. For the following reasons, the Court grants in part and denies in part the Plaintiff's || request: 19 ORDER 20 According to the Amended Complaint (ECF No. 7), Plaintiff Jennifer Kuklock was formerly 2] || employed by NDOT in its Flight Operations division as a Public Service Intern II and was terminated || on January 15, 2016. Ms. Kuklock allegedly reapplied for a Public Service Intern II position in or || around February 2016, but she was not rehired. NDOT allegedly hired Kevin Cain as a Public Service || Intern I. Ms. Kuklock alleges two claims under Title VII: unlawful termination because of her sex, and || unlawful failure to hire because of her sex.

26 Through her Notice, Plaintiff seeks an order that NDOT has not properly responded to several of her discovery requests and should not be permitted to rely upon NAC 284.718 and 284.726 related || to information contained in State personnel files. (See ECF No. 25-1). NDOT responds that the WADE □□□□□□□□□□□□□□□□□□□□□□ VOCUTNEM Zo THEO VaIUe/cU Fage 2 Olo || documents requested are privileged and confidential, the persons whose files are requested (Scott || Hoffmeyer and Kevin Cain) are not named parties who have not authorized NDOT to disclose them, and the requests are overbroad, overly burdensome, undefined, vague, and ambiguous, seeking information that is neither relevant nor proportional to the needs of the case.

5 Discussion 6 As a preliminary matter, the Court denies Plaintiff's request that it enter a blanket general order || requiring NDOT to produce personnel records in response to otherwise legitimate discovery requests.

8 || The Court finds that it is necessary to balance on a request-by-request basis the Plaintiff's need for || information against the privacy and confidentiality interests in personnel records.

Interrogatory No. 1 11 State the name, date of hire and position/job title of all persons who were hired by NDOT during the period of January 1, 2016 to December 31, 2016 whose duties included flying State aircraft.

13 NDOT’s Response: | OBJECTION. NDOT objects to the term “whose duties included flying State aircraft” as undefined, vague, ambiguous, and overbroad. NDOT interprets this term to mean individuals employed as Public Service Intern I, Public Service Intern Il, Pilot 1, Pilot 2, Pilot 3, or Chief Pilot. NDOT also abjects to this request as overly broad and neither relevant nor proportional to the needs of the case.

18 || During the time period requested (January 1, 2016 to December 31, 2016), Plaintiff worked in, and || applied for, only one position, the Public Service Intern II position. Therefore NDOT responds as to || public service intern positions only.

21 Subject to and without waiving such objection, Kevin Cain was hired as a Public Service Intern || J on or about March 14, 2016. As discovery is ongoing, NDOT reserves the right to supplement this || response.

24 Plaintiff argues that this information is relevant because NDOT’s stated reason for terminating || Plaintiff was that it had no business need for her position. Plaintiff argues that NDOT’s staffing levels || for all pilots, not just interns, at the time and soon after Plaintiff was terminated, are relevant to whether || NDOT’s reason was legitimate or pretext.

28 || /// | WADE DLIOVUUODS-LARMR-LLD VOCUMeNE cy VoIUeizU rage o COLO 1 The Court sustains in part and denies in part NDOT’s objections. The information sought is || discoverable, but the length of time requested, January 1, 2016 through December 31, 2016, is overly || broad because Plaintiff was terminated on January 15, 2016. The Court will therefore limit the time period to January 1, 2016 through June 1, 2016.

5 || Request for Production of Documents No. 9 6 Produce a copy of all documents related to Kevin Cain’s application for, selection, and/or || hiring as Public Service Intern.

8 NDOT?’s Response: 9 OBJECTION. Defendant objects to the term “related to” as overbroad, overly burdensome, undefined, vague, and ambiguous, and seeking information that is neither relevant nor proportional to || the needs of the case. Defendant will not search for, identify, or describe information or documents || that are incidental, secondary, irrelevant, or trivial. See IBP, Inc. v. Mercantile Bank of Topeka, 179 FRD. 316, 321 (D. Kan. 1998). Defendant objects that any information contained in a person’s application materials, as well as ratings and remarks concerning an applicant, are confidential || pursuant to NAC 284.718 and protected by the individual’s right to privacy found in both the United States and the Nevada Constitutions. Accordingly, Defendant is not producing any documents in || response to this request.

18 Subject to and without waiving such objections, NDOT already produced the job posting and || redacted list, NDOT 00185-86, 189-90 and refers Plaintiff to NDOT’s disclosures and all supplements || thereto.

21 First, the Court overrules NDOT’s objections regarding the term “related to” and holds that || NDOT is to use common sense and apply ordinary definitions to this term. See Sanchez Y Martin SA || de CV v. Dos Amigos Inc., Case No. 17cv1943-LAB (LL), 2019 WL 581715 at *4 (S.D. Cal. Feb. 13, 24 2019).

25 Second, Plaintiff argues the documents are relevant as to why she was not rehired; her theory || is she was more qualified but she was rejected because of her sex. The Court rejects NDOT’s argument || that the documents are not relevant because Mr. Cain applied for a different position. The nature of || these records are directly related to this case.

VASE □□□□□□□□□□□□□□□□□□□□□ VOCUTHTCIN 22 PCO Vous Zy Faye & 1 Third, the Court weighs the privacy interests of Mr. Cain, a nonparty, with Plaintiff's need for the || information and concludes the privacy interest is outweighed in regard to this request.

3 Accordingly, NDOT’s objections are overruled. In NDOT’s response, NDOT may redact || irrelevant sensitive information, such as social security numbers, beneficiary or dependent names, and so |j forth, and responsive documents may be produced subject to the Protective Order (ECF No. 24) already in place.

Request for Production No. 10 8 Produce a copy of all documents related to Kevin Cain’s application for, selection and/or hiring || for any position with NDOT other than Public Service Intern.

10 NDOT?’s Response: ll | OBJECTION. Defendant objects to the term “related to” as overbroad, overly burdensome, || undefined, vague, and ambiguous, and seeking information that is neither relevant nor proportional to the needs of the case. Defendant will not search for, identify, or describe information or documents that are incidental, secondary, irrelevant, or trivial. See IBP, Inc. v. Mercantile Bank of Topeka, 179 FR.D. 316, 321 (D. Kan. 1998). Defendant objects that any information contained in a person’s || application materials, as well as ratings and remarks concerning an applicant, are confidential || pursuant to NAC 284.718 and protected by the individual's right to privacy found in both the United || States and the Nevada Constitutions. Defendant also objects that documents “related to” any position Mr. Cain applied for, was selected for, or hired for other than Public Service Intern seek irrelevant || information and is not proportional to the needs of the case. Plaintiff's allegation related to failure to || hire alleges only that she applied for and was not selected for a position as a public service intern. No || other position is at issue. Accordingly, Defendant is not producing any documents in response to this || request.

24 Plaintiff argues that these records are relevant because Mr. Cain was subsequently promoted to || Pilot 2, and Plaintiff believes the records will show that Mr. Cain was not qualified for that position.

26 || She argues that the records bear on Mr. Hoffmeyer’s credibility and his preference for males if the records show that Mr. Hoffmeyer promoted an unqualified male applicant. Plaintiff also argues that || / j / VASE V.49 UV UUOOS-LATTUELD YVUCUTICIN 2S CHCU VOUS ey Faye YuUlo || the records are relevant to her damages because they would bear on how much money she likely would || have made had she not been terminated by NDOT.

3 NDOT responds that Plaintiff seeks a fishing expedition to attack Mr. Cain’s current position, for which she never applied, and she seeks to harass and embarrass him. NDOT argues the reference || to damages is speculative as to how documents related to positions for which Plaintiff did not apply || would be relevant to what she could have made had she applied. NDOT also argues reference to Mr. Hoffmeyer’s credibility is speculative.

8 For the reasons stated above, the Court overrules NDOT’s objection to the term “related to.” The || Court finds that Mr. Cain’s privacy interests are not outweighed by Plaintiff's argument that the records are relevant to Mr. Hoffmeyer’s credibility. The requested information is also very speculative as it relates 1] tense because such damages would assume that Plaintiff's career would have gone the same direction as Mr. Cain’s. NDOT need not respond to this request.

13 || Request for Production No. 11 14 Produce a copy of all scoring sheets, interview questions, interview notes, ranking criteria, and all other documents recording or related to Defendant's decision as to which applicant to hire for all || Public Service Intern, either I or II, positions that NDOT filled or announced in 2016.

17 NDOT’s Response: 18 OBJECTION. Defendant objects to the term “related to” as overbroad, overly burdensome, undefined, vague, and ambiguous, and seeking information that is neither relevant nor proportional to || the needs of the case. Defendant will not search for, identify, or describe information or documents || that are incidental, secondary, irrelevant, or trivial. See IBP, Inc. v. Mercantile Bank of Topeka, 179 F.R.D. 316, 321 (D. Kan. 1998). Defendant objects that any information contained in a □□□□□□□□ || application materials, as well as ratings and remarks concerning an applicant, are confidential || pursuant to NAC 284.718 and protected by the individual's right to privacy found in both the United States and the Nevada Constitutions. Because Plaintiff may request documents related to her own || application, Defendant identifies NDOT 000192, which was already produced. Defendant is not || producing any other documents in response to this request. /// WADE □□□□□□□□□□□□□□□□□□□□□□ YVUCUTTICIUC Co Faye OUIO I NDOT argues that this request is overly broad and seeks confidential information of third 2|| persons who are not parties to this suit. Plaintiff argues that the records are necessary to show that she || was the most qualified candidate of all the applicants for all Public Service Intern positions, yet she || was passed over by NDOT, which she argues gives rise to an inference of discrimination. Plaintiff also || argues that the records are relevant to whether NDOT’s reason for terminating her, ie., that it had no || business need for her position, was pretext. Counsel for the Parties explained that there were several || eligible applicants, including Mr. Cain, for the Public Service Intern I position, and that there were only || two eligible applicants (Plaintiff and one other person) for the Public Service Intern II position.

9 For the reasons stated above, the Court overrules NDOT’s objection to the term “related to.”

The Court finds that the request is overly broad in that it seeks records related to all Public Service 1] inter positions for the entire year of 2016. The records of unsuccessful applicants for the Public Service Intern I position are not relevant to Plaintiff's claims. However, the Court will allow a narrowed request for records showing the qualifications of the other person who applied for, and was found eligible for, the Public Service Intern II position for which Plaintiff applied. NDOT may redact personal || information from those records.

16 || Request for Production No, 12 17 Produce a copy of all applications for employment, resumes, letters, certifications, or other dacuments submitted by Scott Hoffmeyer to NDOT in connection with Mr. Hoffmeyer becoming || employed by NDOT.

20 NDOT?’s Response: 21 OBJECTION. Defendant objects to the term “other documents” and “becoming employed” as || overbroad, overly burdensome, undefined, vague, and ambiguous, and seeking information that is || neither relevant nor proportional to the needs of the case. Defendant will not search for, identify, or || describe information or documents that are incidental, secondary, irrelevant, or trivial. See IBP, Inc. || v. Mercantile Bank of Topeka, 179 F.R.D. 316, 321 (D. Kan. 1998). Defendant objects that any || information contained in a person's application materials, as well as ratings and remarks concerning || an applicant, are confidential pursuant to NAC 284.718 and protected by the individual's right to || privacy found in both the United States and the Nevada Constitutions. Accordingly, Defendant is not | VAG V.497°UV UU LATTE YUCUITNCIN Co PUuCU VoImsicy Faye f VIO || producing any documents responsive to this request. Additionally, this request seeks irrelevant || information and is not proportional to the needs of the case. Mr. Hoffmeyer’s application materials || related to the chief pilot position are irrelevant to Plaintiff's allegations regarding the public service || intern position.

5 Plaintiff argues that the records are relevant because they will provide information regarding || Mr. Hoffmeyer’s former employers, and could lead to relevant and admissible evidence regarding the || reasons for Mr. Hoffmeyer leaving prior employers and related to his assertion that he has never had || any problems working with females. Plaintiff also argues that the information requested is narrow and || does not seek information that is particularly sensitive. | The Court overrules NDOT’s objections as to “other documents” and “becoming employed” 11 d instructs NDOT to use common sense and apply ordinary definitions to these terms. The Court || sustains NDOT’s objection as to relevance and privacy. The Court finds that the requested records are || not relevant at all to Plaintiff's claims and do not outweigh Mr. Hoffmeyer’s privacy interests. After 14]| the 2015 amendments to the Federal Rules of Civil Produce it is no longer sufficient that the || information may be likely to lead to admissible evidence. The information must be independently || relevant and proportional to the needs of the case. Finally, it does not appear that Plaintiff does not || have other means of obtaining the information she seeks, including other avenues of discovery. NDOT || need not respond to Plaintiff's Request for Production No. 12.

19 Accordingly, and for good cause shown, 20 IT IS HEREBY ORDERED that Plaintiff’s requested relief set forth in her Notice of Discovery || Dispute (ECF No. 25) is GRANTED IN PART and DENIED IN PART consistent with the discussion || above.

23 IT IS ORDERED that Plaintiff’s Interrogatory No. 1 shall be narrowed to the time period of || January 1, 2016 through June 1, 2016. NDOT shall provide a supplemental response within 14 days || of entry of this Order.

26 | FURTHER ORDERED that NDOT shall respond to Plaintiff's Request for Production No. 9, with appropriate redactions. NDOT shall provide a supplemental response within 14 days of || entry of this Order.

6 Mase □□□□□□□□□□□□□□□□□□□□□ VOCUMEM 29 THEO UaIUsi Frage Oo UlO 1 IT IS FURTHER ORDERED that Request for Production No. 11 shall be narrowed to properly || redacted records showing the qualifications of the other person who applied for, and was found eligible for, the Public Service Intern II position for which Plaintiff applied. NDOT shall provide a || supplemental response within 14 days of entry of this Order.

5 IT IS FURTHER ORDERED that NDOT need not respond to Request for Production Nos. 10 6|| and 12.

An 8 Dated this D~_ day of L4WteH___, 2020.

9 | Px Cl), y LAA A 10 fArren) TATES MAGISTRATE JUDGE Respectfully submitted by: 13]} DATED this_ 4th _ of March, 2020. DATED this Fo of March, 2020.

AARON D. FORD BENSON LAW, LLC Attorney General 16 oe | □ gO ee Kevin Benson, Esq. Carrie L. Parker 18 Nevada Bar No. 9970 Deputy Attorney General W. Nye Lane, Suite 487 Nevada Bar No. 10952 19 Carson City, NV 89706 Kevin A. Pick 20 (775) 884-0838 Senior Deputy Attorney General Attorneys for Plaintiff Nevada Bar No. 11683 21 5420 Kietzke Lane, Suite 202 Reno, Nevada 89511 22 (775) 687-2110 3 Attorneys for Defendant