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Equal Employment Opportunity Commission v. The Cheesecake Factory, Inc.

United States District Court, W.D. Washington, Seattle

September 6, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
THE CHEESECAKE FACTORY, INC., et al., Defendants.

          ORDER ON MOTIONS RELATED TO DISCOVERY DISPUTES

          JAMES L. ROBART, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the court are two motions: (1) Defendants The Cheesecake Factory, Inc. and The Cheesecake Factory Restaurants, Inc.'s (collectively, “Defendants”) motion to compel responses to their first set of interrogatories, requests for production of documents (“RFP”), and requests for admission (“RFA”) (Def. Mot. (Dkt. # 22)); and (2) Plaintiff Equal Employment Opportunity Commission's (“the EEOC”) motion to quash Defendants' third-party subpoenas to Charging Party Oleg Ivanov's prior employers (EEOC Mot. (Dkt. # 24)). The motions involve overlapping issues of privilege and relevance, among other issues. The court has considered the motions, the parties' submissions related to the motions, other relevant portions of the record, and the applicable law. Being fully advised, [1] the court grants in part and denies in part both motions as detailed below.

         II. BACKGROUND

         The EEOC brings claims against Defendants under Title I and Title V of the Americans with Disabilities Act of 1990 (“ADA”), as amended by the ADA Amendments Act of 2008 (“ADAAA”), 42 U.S.C. § 12101 et seq., for failure to provide reasonable accommodation for a physical disability, disparate treatment, and retaliation. (See generally FAC (Dkt. # 37).) Specifically, the EEOC alleges Defendants (1) failed to accommodate Mr. Ivanov, a hearing impaired individual, because they did not provide him with close-captioned orientation and training videos or an American Sign Language (“ASL”) interpreter (“reasonable accommodation”), (2) terminated his employment because of his physical disability (“disparate treatment”), and (3) retaliated against him for requesting an accommodation for his hearing impairment (“retaliation”). (See generally id.)

         The EEOC requests the following remedies for Mr. Ivanov: (1) four days of back pay, which the EEOC estimates at $480.00, excluding interest (7/20/17 Lee Decl. (Dkt. # 25) ¶ 2); (2) garden variety compensatory damages for emotional distress-the proof of which the EEOC has stipulated will consist only of Mr. Ivanov's testimony (id. ¶ 3 (at 7); see also FAC at 7-8 (Prayer for Relief ¶ D)); and (3) an award of punitive damages (7/20/17 Lee Decl. ¶ 2).

         A. Defendants' Interrogatories and RFPs

         On March 28, 2017, Defendants served interrogatories, RFPs, and RFAs on the EEOC. (7/20/17 Hoag Decl. (Dkt. # 23) ¶ 2.) The discovery requests asked for information and documents concerning Mr. Ivanov's employment and medical history. (See Id. ¶ 3, Exs. A, B.)

         1. RFPs and Interrogatories re: Medical Records and Information

         In Interrogatory No. 2, Defendants ask the EEOC to identify “all medical professionals or other persons who have diagnosed [Mr. Ivanov], or with whom [Mr. Ivanov] has consulted, been treated by, or met with, concerning any condition, physical or mental limitation, disease, ailment or impairment that you or [Mr. Ivanov] believe is or was a disability from January 1, 2010 to the present.”[2] (Id. ¶ 3, Ex. A at 4.) Interrogatory No. 11 requests that the EEOC “[i]dentify every professional-whether medical doctor, psychologist, psychiatrist, social worker, or counselor-from whom [Mr. Ivanov] has sought treatment from January 2007 to the present, for emotional upset, stress, depression, anxiety or any other mental or emotional condition.”[3] (Id. at 36.)

         Other than a single audiological record and a letter marked “confidential” from Mr. Ivanov's medical provider, the EEOC provided Defendants with no documents or information concerning Mr. Ivanov's medical history or hearing impairment. (Id. ¶ 4, Exs. A at 11-14, 36-42.) Instead, the EEOC objected to Defendants' requests for documents and information concerning Mr. Ivanov's medical histories as irrelevant, protected by the psychotherapist-patient privilege, and protected by privacy interests. (Id. ¶ 4, Ex. A at 4-11, 36-42.)

         2. RFA re: Other Disabilities

         In their discovery requests, Defendants also asked the EEOC to admit or deny whether it “claim[s] that [Mr. Ivanov] had any disability or impairment other than deafness or hearing impairment during his employment with Defendants.” (Id. ¶ 3, Ex. B at 9 (RFA No. 7).) The EEOC did not admit or deny the foregoing statement, but rather “admit[ted] that Paragraph 15 of its Complaint . . . states that [Mr. Ivanov] ‘is an individual with a disability and has a record of a disability, ' that ‘[h]e was born deaf, ' and ‘[t]his permanent impairment to his special sense organs substantially limits several of Mr. Ivanov's major life activities including “hearing” and “communicating.”'” (Id. (quoting Compl. (Dkt # 1) ¶ 15).)[4] The EEOC continues to refuse to affirmatively state that hearing impairment was Mr. Ivanov's only disability during his employment with Defendants. (Id. ¶ 10, Ex. H.)

         Defendants believe that Mr. Ivanov may have a disability or disabilities in addition to hearing impairment. Specifically, the EEOC produced partially redacted documents indicating that Mr. Ivanov informed the EEOC, in connection with his employment by Defendants, of a disability or disabilities in addition to his hearing impairment. (Id. ¶ 5, Ex. C, D; see also 7/31/17 Hoag Decl. (Dkt. # 27) ¶ 9, Ex. 5.) The EEOC redacted these documents based on the psychotherapist/patient privilege. (See 7/20/17 Hoag Decl. ¶ 5, Ex. E (attaching privilege log).)

         3. RFPs and Interrogatories re: Employment History

         Defendants also requested that the EEOC produce all employment records for Mr. Ivanov from January 1, 2007, forward; all documents regarding each request for an accommodation that Mr. Ivanov made to any employer from 2005 to the present; and every written communication in which Mr. Ivanov notified an employer of any disability from 2010, forward. (Id. ¶ 3, Ex. A at 11, 13, 15, 17, 49, 58.) The EEOC objected to these requests on grounds of relevance, overbreadth, burdensomeness, proportionality, the psychotherapist/patient privilege, Mr. Ivanov's privacy interest in non-therapist medical records, and because Defendants had never asked for these documents or information during the interactive process of July 2014-September 2014.[5] (See Id. at 13-14, 17-20, 50-53, 58-61.)

         Despite its objections, in supplemental discovery responses, the EEOC provided Defendants with a list of Mr. Ivanov's previous employers dating back to 2007. (Id. ¶ 9, Ex. G at 13.) Mr. Ivanov's prior employers include: (1) Shared Journeys (2004-February 15, 2008); (2) Aloha Inn (January-December, 2009); (3) Catholic Community Services of Western Washington (“Catholic Community Services”) (January-December 2009);[6] and (4) Puget Sound Regional Services (2012-May 31, 2014). (Id.; see also 7/31/17 Hoag Decl. ¶ 7.) Mr. Ivanov has not been employed since his position with Defendants ended on September 10, 2014. (Id. ¶ 9, Ex. G at 13.) The EEOC also stated in its supplemental discovery responses that “it does not have any documents related to Mr. Ivanov's employment during the period 2007 until June 1, 2014[, ] with an employer other than Defendants, ” but unilaterally narrowed Defendants' request to those documents “that relate to a request for an accommodation of [Mr. Ivanov's] hearing impairment.” (Id. at 15.) As Defendants point out, this limitation excludes documents that relate to Mr. Ivanov's performance, attendance, and discipline. (Def. Mot. at 4.) The EEOC has not clarified whether any responsive documents-outside of its unilateral limitation-exist. (Id. ¶ 11 & Ex. I.)

         After meeting and conferring with counsel for the EEOC, on July 20, 2017, Defendants filed the present motion to compel discovery responses from the EEOC. (See Def. Mot.)

         B. Defendants' Third-Party Subpoenas

         On July 7, 2017, Defendants notified the EEOC that they intended to issue third-party subpoenas to Mr. Ivanov's prior employers: Shared Journeys, Aloha Inn, and Puget Sound Regional Services. (Lee Decl. ¶ 7.) Defendants seek the following documents from each of these employers:

Any and all records, files, and documents . . . in the possession, custody, or control of Aloha Inn [or Shared Journeys or Puget Sound Regional Services, respectively] pertaining in any way to Oleg Ivanov . . . for the following for the time period January 1, 2007 through present. This request includes, but is not limited to, all personnel, disciplinary, and medical records, and any email correspondence with or about Mr. Ivanov.

(See Id. ¶ 7, Ex. C at 9; EEOC Mot. at 6.) The EEOC reiterated its objections to the production of these documents and conferred with Defendants' counsel on the issue. (Id. ¶¶ 8-9.) On July 14, 2017, Defendants served third-party subpoenas on the three entities identified above and also served a substantively identical subpoena on Catholic Community Services. (Id. ¶¶ 13-14 & Ex. F; 7/31/17 Hoag Decl. ¶ 7.) After meeting and conferring with counsel for Defendants, the EEOC filed it motion to quash Defendants' third-party subpoenas on July 20, 2017. (See EEOC Mot.)

         III. ANALYSIS

         The EEOC's objections to Defendants' discovery requests and to Defendants' third-party subpoenas are overlapping. Thus, the substantive issues underlying Defendants' motion to compel and the EEOC's motion to quash are overlapping. (Compare Def. Mot., with EEOC Mot.) Those issues include: (1) the psychotherapist/patient privilege (see Def. Mot. at 4-7; EEOC Mot. at 7-9); (2) Mr. Ivanov's privacy interest, if any, in his medical records and information concerning any other disabilities that Mr. Ivanov may have (Def. Mot. at 8-10; EEOC Mot. at 7-9); (3) the propriety of the EEOC's response to Defendants' RFA concerning Mr. Ivanov's disability or disabilities, and (4) the relevance of records from Mr. Ivanov's prior employers and the proportionality of Defendants' third-party subpoenas, interrogatories, and RFPs concerning Mr. Ivanov's ...


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