Employment Law Daily Petco’s centralized FMLA decisions made company-wide documents on ‘100% healed’ policy discoverable
Monday, October 16, 2017

Petco’s centralized FMLA decisions made company-wide documents on ‘100% healed’ policy discoverable

By Lorene D. Park, J.D.

In an FMLA suit by a Petco employee who was not reinstated to his position because he did not provide medical certification that he was 100% healed, a federal district court in New Mexico granted his motion to compel Petco’s complete response to discovery requests for nationwide information on others fired under the same policy and on FMLA or ADA complaints by other employees. Company-wide information was relevant and the requests were not overly broad because Petco had a centralized corporate decision-making team for all employees’ FMLA or ADA requests (Donlin v. Petco Animal Supplies Stores, Inc., October10, 2017, Ritter, J.).

Denied reinstatement under 100% healed policy. The employee, who worked as a general manager at Petco, suffered “flare-ups” due to his medical condition, which ultimately required him to take FMLA leave in February 2015. He claimed that his doctor cleared him to return to work on May 15 under certain limitations and he believed he could perform all his prior duties without accommodation. However, Petco refused to let him return unless he provided a certification from his doctor stating that he was 100% recovered. He claimed that because Petco refused to reinstate him, he was required to apply for long term disability, which was denied by the insurer because he was found capable of doing his job.

Thereafter, Petco allegedly required him to complete a reasonable accommodation package as a condition of reinstatement and then terminated him when he failed to do so.

Discovery dispute. In the employee’s lawsuit under the ADA and the FMLA, disputes arose over the employee’s discovery requests and he moved to compel Petco to fully respond to interrogatories and requests for production seeking, among other things: (1) contact information for” all persons involuntarily terminated from Petco’s employ due to a failure to return to work” after FMLA leave, including all termination documents for employees who failed to request an accommodation or to certify 100% recovery; (2) contact information for all persons who after January 1, 2013 complained that Petco interfered with or denied rights under the FMLA or ADA, including documents regarding any claim and Petco’s investigation of it; and (3) information and documents concerning FMLA and ADA complaints made to a governmental agency or in court.

Petco raised identical objections to each request, asserting that the information sought was not relevant or reasonably calculated to lead to discoverable evidence, and that the request was overly broad and unduly burdensome because it was not reasonably limited to the relevant circumstances of the employee’s employment, geography, or decisionmaker.

Scope of discovery. Addressing whether the requests for company-wide information were overly broad, the court pointed to the “general rule that evidence regarding the defendant employer’s treatment of other employees is relevant to the issues of the employer’s discriminatory intent, whether there is a pattern of retaliatory behavior, or the employer’s credibility in its assertion of legitimate motives.” While the rule is limited in that the other complaints must be “similar in nature and close in time to plaintiff’s experiences,” that does not mean that a single plaintiff is limited to discovery by a particular supervisor or location. The geographic scope of discovery focuses on “the source of the complained discrimination—the employing unit or work unit.”

Company-wide information must be produced. Here, Petco appeared to have a company-wide decision making team responsible for all employee requests and Petco did not identify which supervisor made the decisions related to the employee’s FMLA leave, accommodation, or termination. In addition, the exhibits attached to Petco’s response indicated a centralized “Petco Leave and Accommodation Team” sent correspondence to the employee detailing the decisions regarding his requests for leave, accommodation, and reinstatement.

Because it appeared “all Petco employees are subject to the same leave of absence policies,” and decisions on granting leave were made by the corporate team, the employee was entitled to relevant company-wide documents. Also, information and documents concerning other FMLA or ADA claims would be probative of Petco’s motivation for its treatment of the employee.

Not unduly burdensome or privileged. While Petco argued that producing the information and documents would be unduly burdensome because it has “25,000 partners and operates more than 1,500 locations across the United States and Puerto Rico,” the court disagreed. Petco indicated that any notes on internal complaints are maintained on the Employee Relations Team’s shared drive and external complaints are “tracked on spreadsheets,” so the requested discovery appeared to be readily available, whether or not they were “searchable.” Also, the employee wasn’t seeking the records of all 25,000 partners, but was seeking limited information on FMLA and ADA complaints for a limited time period.

Also rejected was Petco’s argument that internal investigatory documents were protected by the attorney-client privilege. Attorneys had not created the documents and Petco cited no authority that the mere involvement of an attorney in assessing documents automatically qualifies the documents as privileged. That said, the court left open the possibility that certain documents might be privileged and ordered Petco to produce a privilege log for any withheld.

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