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IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
KIMBERLY KLEPS, ) CASE NO. CV-2021-09-2905
)
Plaintiff, ) JUDGE KATHRYN MICHAEL
)
¥, ) MAGISTRATE ERICA VOORHEES
)
ASTRAZENECA PHARMACEUTICALS, ) PLAINTIFF’S MOTION TO COMPEL
LP, ef al., ) DISCOVERY
)
Defendants. )
)
Plaintiff, Kimberly Kleps (“Plaintiff” or “Kim”), through counsel, and pursuant to Civ. R.
37, hereby moves for an Order compelling Defendants, AstraZeneca Pharmaceuticals LP
(“AstraZeneca”) and Michael Ross (“Ross,” together with AstraZeneca, the “Defendants”), to
provide complete answers and produce documents in response to Plaintiff's discovery requests. In
derogation of Civ. R. 26’s liberal policy of discovery, Defendants have failed to produce discovery
that is critical and relevant to Plaintiff's claims.
Plaintiff has exhaustively complied with her duty to attempt to resolve this matter without
the Court’s intervention. In addition to the extensive correspondence attached to the Memorandum
in Support hereof, Plaintiff s counsel has complied with Page 3 of the Court’s Case Management
Order, moved for and attencled an in-person discovery conference, and, at such conference and as
directed by the Court, conferred further with Defendants. Since that conference, Defendants have
produced no documents or amended responses and, yesterday, delivered an index that (i) attempts
to improperly limit their responses to some requests and (ii) refuses altogether to respond to others.
Thus, Plaintiff has been forced to involve this Court again through this Motion, and hereby
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respectfully seeks an Order compelling Defendants to abide by their obligations in discovery and
awarding Plaintiff her attorneys’ fees and expenses. A Memorandum in Support is attached hereto
and incorporated herein.
Respectfully submitted,
és/ John FE, Moran
John E. Moran (#0087272)
jem@mccarthylebit.com
Frank T. George (#0097925)
fig@mecarthylebit.com
McCARTHY, LEBIT, CRYSTAL
& LIFFMAN CO., L.P.A.
1111 Superior Avenue, East
Suite 2700
Cleveland, Ohio 44114
(216) 696-1422
(216) 696-1210 (facsimile)
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
L hereby certify that on this 2 day of September, 2022, the foregoing Plaintiffs Motion
to Compel and Memorandum in Support was filed electronically. Notice of this filing will be sent
to all parties by operation of the Court’s electronic filing system.
sé John_&. Moran
One of the Attorneys for Plaintiff
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IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
KIMBERLY KLEPS, ) CASE NO. CV-2021-09-2905
)
Plaintiff, ) JUDGE KATHRYN MICHAEL
)
v. ) MAGISTRATE ERICA VOORHEES
ASTRAZENECA PHARMACEUTICALS, ) MEMORANDUM IN SUPPORT OF
LP, ef al., ) PLAINTIFI’S MOTION TO COMPEL
) DISCOVERY
Defendants. )
)
1 FACTUAL BACKGROUND
A Kim Earns a Promotion to a Specialty Rep Position
Kim, an African-American female, has been a successful pharmaceutical sales
representative for nearly twenty (20) years. In 2013, Kim’s prior employer merged with
AstraZeneca and, upon joining AstraZeneca, Kim continued to earn high performance marks and
praise for the next few years. Thus, in 2017, after being recruited internally, Kim sought a
promotion to the role of Senior Pharmaceutical Sales Specialist (“Specialty Rep”) — a lucrative
specialty sales role promoting the diabetes medication Farxiga, Xigduo-XR, and Bydureon.
Despite her record of impressive results and awards, Defendant Ross denied Kim this promotion
and instead awarded it to Vara Sumell (“Sumell”), a white woman whom Kim had previously
mentored and trained at Ross’s direction.
Fortunately, the next year, Kim was finally given her own promotion to a Specialty Rep
role. In this new position, Kim was to share the “Akron” sales territory with Sumell, working
together to promote AstraZeneca’s diabetes drugs and calling on the same physicians,
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AstraZeneca’s “Akron” territory is within the “Columbus” district, which was -- during all relevant
periods — managed by Ross. Thus, both Kim and Sumell reported directly to Ross, among several
other Specialty Reps.
While Specialty Reps have many responsibilities, relevant to this action is their obligation
to “log” their calls on physicians. More specifically, Specialty Reps input physician visits into
AstraZeneca’s “Veeva” tracking software, and — after the visit is complete — finalize the entry to
confirm the visit occurred. This is occasionally referred to as “call logging.”
B Ross Begins Criticizing Kim’s Performance after She Disclosed Her Health
Conditions to Him
Shortly after her prornotion, during a “ride-along,”! Kim disclosed to Ross that she suffered
from mental health conditions (post-traumatic stress disorder and anxiety). The year earlier, Kim’s
family home had burnt to the ground as she, her husband, and children barely escaped. Given that
Ross himself had observed the total loss of the home (he had walked through the wrecked property
before it was torn down), Kim felt it appropriate to disclose her medical condition to him in the
hope that he might be more understanding of time off requests and other accommodations. In
response, however, Ross simply told Kim that she could use “vacation days” if she needed them,
and was otherwise callous towards Kim’s health.
Ross then began documenting a series of criticisms of Kim — sometimes without her
knowledge — starting in the Summer of 2018. Often, Ross was fixated on Kim’s call logging,
nitpicking her for not logging physician visits within twenty-four (24) hours of those visits
occurring. This pattern of denigration was coupled with other instances of hostility and favoritism,
like: (1) refusing to release an otherwise-approved $5,000.00 expense reimbursement to Kim, (2)
—
1 A “ride-along’ is when an AstraZeneca manager spends a day (or part of day) with a specific
Specialty Rep to assess how that representative is performing in the field.
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lambasting Kim for suffering from PTSD symptoms during meetings in January 2019 and April
2019; (3) mandating that Kim support Sumell with Sumell’s job responsibilities so that Sumell
could take on other tasks; and (4) forcing Kim to perform a ride-along to West Virginia during a
January 2019 blizzard, when all other representatives were permitted to stay home.
Kim was alarmed by Ross’s conduct, in large part because his call-logging criticism simply
made no sense, Not only had Kim previously earned high marks for performance and compliance,
but she also knew that Ross’s other Specialty Reps were, in fact, much worse in their call logging
discrepancies (e.g., falsifying calls that never happened) and were not being criticized. For
example, while Kim may have occasionally had a visit that took more than a day to log, other
Specialty Reps would enter calls weeks, or even a month, after they occurred. According to
AstraZeneca records, for example, Griffin Najdovski, a white nondisabled Specialty Rep reporting
to Ross, logged sixty percent (60%) of her calls more than two (2) days after they occurred and,
during the relevant time period, Ross took absolutely no action against her.
Ross’s favoritism for Sumeil was particularly stark. More specifically, Kim noticed that
Sumell would enter suspicious physician calls weeks after they supposedly occurred. Based on
their dates, these suspicious entries purportedly occurred on the same day that Ross was supposed
to be performing a ide-along” with Sumell. Indeed, on or about January 30, 2019, Kim
complained to Ross that he was treating her differently than her white and/or nondisabled
counterparts. Not only bad Kim noticed disturbing logging discrepancies with Ross and Sumell,
she also saw that Ross and Sumell were alarmingly familiar with each other at AstraZeneca
mectings and sales events, suggesting that their relationship was more than professional. Despite
Kim’s well-founded concerns, Ross was dismissive, claiming to Kim in writing that she was an
“outlier” which justified his differential treatment.
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Cc. Ross Launches a Ridiculous Investigation into Kim’s Call Logging the Sam
Day She Begins a Medical Leave of Absence
Ross’s discriminatory harassment only aggravated Kim’s mental health struggles, resulting
in her seeking a medical leave of absence in July 2019. Kim’s physician completed a medical
certification that not only qualified Kim for leave, but also for short-term disability under her
insurance policy. Despite these health issues, on the same day that Kim began her leave, Ross
contacted AstraZeneca’s human resources department, initiated an investigation into Kim, and
began searching for a way to discipline her more harshly. Indeed, from this point forward, Ross
tirelessly worked to get Kim fired, going so far as to manually compare Kim’s mileage (from her
expense records) with her Veeva call entry, searching the locations of physicians on the Internet,
to see if the mileage Kim had submitted matched the miles that Ross’s internet searches reflected
between physician offices. Upon information and belief, Ross did not subject any of his other
reports to such absurd — and patently inaccurate — inspections.
Armed with supposed “discrepancies” between Kim’s mileage records and call entries,
Ross convinced human resources representative Linda Abbonizio (‘Abbonizio”) and his
supervisor, Fran Bellefeuille, to convene a disciplinary “Opportunity to Respond” meeting with
Kim upon her return from medical leave. Ross misled Kim about the purpose of the meeting,
giving her no indication that she would be questioned about specific discrepancies from months
earlier. Thus, almost immediately after Kim returned rom leave, she was ambushed with a human
resources conference call at which she was interrogated about mileage and Veeva entries from
nine (9) months earlier. Kim, of course, was not able to remember the specifics of such
discrepancies at that moment, but after checking her records and calling AstraZeneca’s fleet
management staff, she was able to subsequently explain some of the issues to Abbonizio, At that
time, she further complained to Abbonizio that she was being singled out, harassed, and
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discriminated against by Ross in his biased application of performance expectations as compared
to her counterpasts.
D AstraZeneca Places Kim on a “Final Written Warning” One Month after She
Returns from Medical Leaye
Abbonizio did nothing to address Kim’s complaint. Instead, on November 8, 2019, Ross
continued his harassment by placing Kim on a Final Written Warning (“FWW”). Per AstraZeneca
policy, Ross’s imposition of a FWW precluded Kim from (i) receiving her considerable bonus
compensation, Gi) seeking promotional positions in the company, or (iii) participating in any
rewards programs. In support of the FWW, and despite the wildly discriminatory way in which
he was imposing such expectations, Ross focused almost exclusively on call logging discrepancies
(Le., that Kim retroactively logged her sales calls, rather than doing so in real-time).
Following several calls with Abbonizio, Kim sent correspondence and supporting data to
Abbonizio recounting the facts and noting her concerns related to unlawful discrimination and
retaliation. She explained that she believed Sumell was afforded special treatment because of her
relationship with Ross. She also explained that she felt she had been treated worse than her
coworkers because she suffered from PTSD and took leave. Despite Kim's additional efforts,
AstraZeneca did nothing to address the discriminatory treatment or rescind the FWW so that Kim
was not punished unfairly.
Thus, on December 13, 2019, Kim emailed Senior Employment Practices Partner Kelly
Antonietti (“Antonietti”) and expressed an intention to resign. Kim noted that AstraZeneca had,
in retaliation for her complaints, demoted her and cut her pay by issuing an FWW that prevented
her from receiving bonus compensation she had otherwise earned. In response, Antonietti
promised to complete an investigation into Ross’s conduct by December 20, 2019, and asked Kim
to reconsider her resignation until that date. Kim thus agreed to withdraw her resignation. Despite
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her promises, however, Antonietti later told Kim that the investigation would not be completed
until sometime in 2020, meaning Kim would have to work through 2019 and into 2020 with no
assurance that a significant part of her compensation would be paid. Thus, Kim resigned on
December 31, 2019, explaining that she felt compelled to resign due to Ross’ mistreatment.
Il. PLAINTIFF HAS COMPREHENSIVELY SATISFIED HER MEET AND CONFER
OBLIGATIONS
Following the filing of this action’, and to explore the above-presented factual and legal
issues, Plaintiff issued her First Combined Discovery Requests on November 15, 2021.
Immediately upon receipt, Defendants sought a one-month extension of time to respond, Out of
professional courtesy, Plaintiff agreed. (See, November 23, 2021 email, attached hereto as
Exhibit 1.). In the meantime, Plaintiff's counsel initiated Rule 26 discussions to make progress
in the case. As part of these discussions, Plaintiff anticipated that Defendants may have
confidentiality concerns, and sent a proposed Stipulated Protective Order (the “SPO”) to
Defendants’ counsel on November 12, 2021. Plaintiff followed up on the SPO on December 2,
2021. (See, December 2, 2021 email, attached hereto as Exhibit 2.). Plaintiff has never received
a substantive response to that proposal.
While affording Defendants additional time, Plaintiffs counsel also attempted to preempt
any potential obstacles to a fulsome production of discovery. Thus, on December 6, 2021,
Plaintiff's counsel asked Defendants’ counsel if there would be any concerns related to the
production of electronically-stored information (“ESI”). Defendants’ counsel replied by email that
Defendants agreed to raise any ESI concerns — if they had them — in advance of Defendants’
production of responses. (See, December 6, 2021 email, attached hereto as Exhibit 3.)
2 Prior to filing this case on September 15, 2021, Kim filed a Charge of Discrimination with the
Equal Employment Opportunity Commission, which then issued a “right to sue” letter.
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On January 7, 2022, Defendants sought yet another extension of time via email. By written
reply, Plaintiff agreed to this extension with a few conditions; including that Defendants (a) get
any needed SPO in place immediately and (b) raise any ESI concerns within the following
week. Defendants agreed to these terms. (See, January |0,2022 email, attached hereto as Exhibit
4.) Defendants produced twenty (20) pages later that month, with no written responses, but the
production revealed little except that Defendants were still withholding many of the underlying
3
documents related to the cas
On February 8, 2022, Defendants sought yet another two-week extension of time to
respond. Even then, once that time period expired, Defendants sought yet another extension of
time. (See, February 8, 2022 and February 25, 2022 emails, attached hereto collectively as Exhibit
3.) At this point, Plaintiff's counsel insisted that a production be made, lest he need to involve the
Court. (Id.) Once the Court’s involvement was raised, Defendants finally provided written
responses to the requests on March 11, 2022. (See, Defendants’ Written Answers and Responses
to Plaintiff's First Combined Discovery Requests, attached hereto as Exhibit 6.) Unfortunately,
Defendants’ production was woefully insufficient and, for the first time, raised ESI concerns and
confidentiality matters, despite Plaintiffs exhaustive efforts to avoid this exact situation.
Nevertheless, Plaintiff persevered in attempting to meet and confer. After painstakingly
reviewing Defendants’ many written objections, combined with its minimal document production,
Plaintiff's counsel prepared a detailed, 21-page letter outlining the deficiencies in Defendants”
production. (See, May 17, 2022 letter, attached hereto as Exhibit 7.). Plaintiff followed up for a
3 For example, Defendants produced a human resources “snapshot” of their investigation into
Plaintiff's complaints of harassment, but that “snapshot” document made reference to text messages, other
communication, interview questions, and interview responses, none of which was produced.
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response to the letter on May 26, 2022, but Defendants ignored it. (See, May 26, 2022 email,
attached hereto as Exhibit 8.)
Earnestly attempting to avoid having to bother the Court on discovery matters, Plaintiff
next convened a June 8, 2022 telephone conference with Defendants’ counsel to try to work out
these matters. During that call, Defendants agreed that deficiencies would be addressed and that
a supplementation was forthcoming. Between that call and the telephone conference with the
Court on June 21, 2022, however, Defendants did not produce anything. Thus, on that date,
Plaintiff insisted that Defendants supplement their discovery production by no later than July 8,
2022. (See, June 21, 2022 email correspondence, attached hereto as Exhibit 9.)
On July 7, 2022 — the day before the deadline — Defendants’ counsel wrote an email to
Plaintiff's counsel that produced nothing. Instead, it merely proposed to produce some
discovery. Plaintiff's counsel insisted that Defendants’ full supplementation be made by July 14,
2022, (See, July 7, 2022 email, attached hereto as Exhibit 10.). Unfortunately, Defendants did
not fully and timely supplement for even those categories they had unilaterally chosen.
As a result of this conduct, Plaintiff was left with no choice but to file her July 29, 2022
Notice of Discovery Dispute and Motion for In-Person Discovery Conference, in compliance with
this Court’s Case Management Order. The Court set a hearing for August 18, 2022. A few days
before the hearing, Defendants’ counsel began fervently attempting to postpone the hearing, but
was unable throughout this time to commit to any specific timetable for production or to identify
what categories of requested information were still in dispute. (See, August 12, 2022 ~ August
16, 2022 correspondence, attached hereto as Exhibit 11.)
At the conference itself, the Court encouraged counsel to adjourn to the Jury Room and
confer even further. Plainti!l’s counsel complied and discussed Defendants’ production with their
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counsel for over ninety (90) minutes. Despite yet another attempt to hone in the issues,
Defendants* counsel was still ~ even at the conference — unable to articulate what categories of
requested information were still in dispute. Instead, Defendants’ counsel asked for even more
time to discuss the discovery with their clients. Thus, at the hearing, the Court memorialized an
agreement, on the record, that Defendants would provide Plaintiff's counsel with an index of those
categories of discovery that Defendants agreed to produce, and those categories Defendants
opposed producing, by or before September 1, 2022.
The afternoon of September 1, Defendants asked for additional time to produce the
“index.” Plaintiff declined. Thus, Defendants finally produced the “index” at 4:25 pm yesterday.
(See, September 1, 2022 Index, attached hereto as Exhibit 12.)
While the index commits Defendants to produce some answers and discovery, it suffers
from two flaws. First, for some categories of requests, Defendants have improperly restricted the
range of documents and information they are willing to produce. Second, Defendants have
inappropriately refused to produce entire categories of information that are wholly relevant and
discoverable in this case. Plaintiff will address both issues below.
TIE. LAW AND ARGUMENT
Under the Ohio Rules of Civil Procedure, the scope of discovery is liberal. Civ. R. 26(B)(1)
provides:
Parties may obtain discovery regarding any matter, not privileged, whichis relevant
to the subject matter involved in the pending action, whether it relates to the claim
or defense of the party seeking discovery or to the claim or defense of any other
party, including the existence, description, nature, custody, condition and location
ofany books, documents, electronically stored information, or other tangible things
and the identity and location of persons having knowledge of any discoverable
matter. It is not ground for objection that the information sought will be
inadmissible at the trial if the information sought appears reasonably calculated to
lead to the discovery of admissible evidence.
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As explained below, the information sought by Plaintiff falls well within the scope of Civ. R.
26(B)(1). Nevertheless, Defendants have refused to permit such discovery.4 Thus, Plaintiff hereby
moves for an Order compelling responses to the following requests under Civ. R. 37, by or before
September 30, 2022.
A The Court Should Reject Defendants’ Attempts to Improperly Restrict the
Scope of Plaintiff's Requests
L Defendants Must Be Compelled to Produce the Statements in Their
Possession, Custody, or Control Related to This Dispute
(Interrogatory No. 12 and Document Request No. 31)
Interrogatory No. 12 and Document Request No. 31 seek information regarding, and copies
of, any statements that Defendants have obtained associated with the facts underlying this case.
Defendants’ production to date makes clear that they are in possession of written statements from
AstraZeneca employees (and perhaps others) related to, infer alia, Ross’s relationship with Sumell,
Ross’s discriminatory treatment towards Kim, and Ross's failure to enforce the same performance
expectations on Sumell and Kim’s other counterpart Specialty Reps. For example, human
resources professional Abbonizio prepared a “Case Snapshot” for one of Kim’s complaints
regarding Ross’s treatment. (See, Snapshot for Case US-41907, attached hereto as Exhibit 13.)
The snapshot shows that AstraZeneca interviewed employees and learned that (i) Ross is not even-
handed in his treatment, (ii) Ross assisted Sumell in her job where he did not for others, and (iti)
Sumell admitted to entering lalse logs into the Veeva software. If such information (or other,
related information) is reduced to a statement, Plaintiff should be permitted to see it.
4 Certain requests relate to the disclosure of documents to be used at trial as exhibits or expert
witnesses (Interrogatory Nos. 15-18, Document Requests 32 and 35). Defendants have objected and
asserted that they will make sure disclosures only in accordance with the Court’s deadlines. In deference
to those deadlines, Plaintiff will reserve her right to address those requests until later and as necessary.
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To date, all Defendants have said in response to these requests is that they have no
“affidavits.” Of course, this is only part of Plaintiff's inquiry. Plaintiffs requests for “statements”
encompasses more than fully-sworn affidavits, and Defendants should be required to respond to
the entire requests.
Bolstering Plaintiff's concern regarding potentially withheld statements is that Defendants’
current responses assert privilege and work product objections. Yet, in violation of Civ.R
26(B)(8)(a), Defendants have not produced any privilege log or made any effort to explain how a
privilege or work product objection even applies here. With respect to statements, this failure
alone operates as a waiver of Defendants’ ability to rely on such objections, as it would be simple
enough for Defendants to inventory the statements in their possession so that their claim of
privilege could be tested. Zita! Quality Logistics, LLC v. BBI Logistics LLC, 12" Dist. Clermont
No. CA2021-04-012, 2022-Ohio-1440, 423. Putting that waiver aside, such privileges cannot be
used “at once as a shield and a sword.” Ross v. City of Memphis, 423 F.3d 596, 604-05 (6" Cir,
2005). Defendants cannot rely on information in supposedly-privileged statements to compile HR
“Case Snapshots,” but then withhold documents underlying those summaries, Jd. Defendants
must be ordered to produce the requested information related to statements.
Because This Case Arises from Ross’s Pretextual Criticism of Kim’s
Job Performance, Plaintiff Is Entitled to Discovery Related to the
Performance of All AztraZeneca Employees within the Columbus
District (Document Request Nos. 7-8 and 11-12)
As explained above, this dispute arises from Ross’s discriminatory fixation on Kim’s
performance. Ross’s unfair obsession with Kim resulted in (i) his initiation of a bizarre call
logging “investigation” at the start of Kim’s medical leave, (ii) the removal of Kim’s bonus and
other compensation, and (iii) Kim’s forced resignation. Thus, the legality of Ross’s unique
concentration on Kim’s performance ~ and his lack of any focus on his other reports — is a central
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part of this case, and any evidence that white, male, and/or non-disabled “similarly-situated
comparators” were treated better than Kim is plainly relevant. In order to explore this issue,
Plaintiff must discover the specifics of how those comparators were performing.
bh Defendants Have Agreed to Produce Records, but that Production
Ts Incomplete
In light of the above, Document Request No. 7 seeks the personnel files, discipline records,
performance evaluations, and other information for any Specialty Reps that worked in the
Columbus District ftom January 1, 2017 through June 2020. Document Request Nos. 8, 11, and
12 seek the Field Coaching Reports, mileage records, and call logging activity reports for the same
population of employees. These are the exact categories of documents that formed the basis of
Ross’s criticism of Kim, and Plaintiff seeks them for the same relevant time period.
For the first time yesterday, Defendants finally appeared to agree that these categories of
documents are discoverable. (See, Exhibit 12, response to Requests, 7-8, 11-12.) Unfortunately,
in agreeing to produce these documents, Defendants are still attempting to unfairly restrict their
production by providing only the records for only a limited population of Kim’s coworkers. (Id.)
In their agreement to produce, Defendants did not include Danielle Mancini, Brian Bottger, or
Genell Zink Ritley among the coworkers in the Columbus District whose records would be
produced. Thus, Defendants should be compelled to produce records for these employees, as well,
a. Plaintiff Is Entitled to Records for All of Kim’s Comparators
To be sure, Plaintiff's request for these records is entirely appropriate given the nature of
this case. Job performance — including that of Kim’s counterpart coworkers ~ is a pivotal issue,
as part of a plaintiff's prima facie discrimination case is a showing that similarly-situated
employees were treated more favorably. See, e.g. Wolffram v. Sysco Cincinnati, LLC, S.D. Ohio
No. 12cv961, 2015 U.S. Dist. LEXIS 65314, *8 (May 19, 2015); Dukes v. Associated Materials,
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LLC, 9" Dist. Summit No. 27091, 2014-Ohio-4322, €7,.° This evidence is not only relevant to the
prima facie case, but also to “pretext” — that is, evidence that the employer’s explanation for its
treatment of the plaintiff is false. For example, pretext is shown by evidence that “other
employees, particularly employees outside the protected class, were not disciplined even though
they engaged in substantially identical conduct to that which the employer contends motivated its
discipline of the plaintiff.” Charttman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6" Cir. 2012).
Because this is textbook discrimination evidence, time and again appellate courts have
reversed decisions that limited the plaintiff's ability to conduct discovery on the performance of
counterpart employees. See, ¢.g. Bobo v. UPS, 665 F.3d 741, 751-52 (6" Cir, 2012) (lower court’s
refusal to force defendant to produce comparator evidence necessitates reversal of summary
judgment); see also Louzon v. Ford Motor Co., 718 F.3d 556 (6" Cir. 2013 (reversing lower court’s
liminal ruling on evidence of comparator employees).
Defendants’ restriction of the poo! of comparators, as described above, is inappropriate. In
evaluating who is a “comparator” employee, courts generally look to those employees who dealt
with the same supervisor, were subject to the same standards, and who engaged in the same
conduct. Lowzon, 718 F.3d at 563; Bobo, 665 F.3d 741, 751; Mitchell y, Toledo Hosp., 964 F.2d
577, 583 (6" Cir. 1992). Mancini, Botiger, and Ritley all easily qualify under this definition, as
they each worked as representatives in Columbus District, reporting to Ross, during the relevant
time period. Defendants must be compelled to produce responsive records for all Specialty Reps
who worked in the District managed by Ross from January 1, 2017 through December 31, 2019.
B Defendants Should Not Be Permitted to Refuse or Further Delay the
Production of Discoverable Information
3 Federal case law interpreting federal employment civil rights statutes generally applies to claims
under Ohio Revised Code Chapter 4112. Johnson v. Cleveland City Sch. Dist., 8 Dist. Cuyahoga No.
94214, 2011-Ohio-2778, 54; Smith v. Allstate Ins. Co., 9 Dist. Summit No. 29339, 2019-Ohio-4557, (21.
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1 Defendants Should Provide the Sex and Race of the Individuals Central
to this Sex and Race Discrimination Case (Interrogatory Nos. 6 and 9)
In a case alleging discrimination on the basis of sex® and race, the sex and race of the
relevant decision-makers, comparators, and other central actors is clearly relevant. For example,
when a decision-maker is the same sex or race as the plaintiff, a different prima facie case may
apply. See, e.g. Zambeiti v. Cuyahoga Cmty. College, 314 F.3d 249, 255 (6" Cir, 2002). In other
instances, the race or sex of a relevant actor gives rise to an assertion of the “same group inference.”
See, e.g., Wexler v, White's Fine Furniture, 317 F.3d 564, 574 (6" Cir. 2003), Defendants claim
that they will produce documents in response to Interrogatory No. 6, and they cite to their Initial
Disclosures in response to Interrogatory No. 9 — both requests that seek the identity, sex, and race
of decision-makers, central actors, and people with knowledge. But the documents and disclosures
cited by Defendants do not include the sex and/or race of the individuals involved. Defendants
must be required to respond to these interrogatories with the sex and race information.
2 Having Asserted Affirmative Defenses in Their Answer, Defendants
Must — at a Minimum — Be Required to Disclose the Facts Supporting
Those Defenses (Interrogatory Nos. 23, 24, and 25)
Interrogatories 23, 24, and 25 seek the facts upon which Defendants assert certain
affirmative defenses, Defendants have alleged a cornucopia of affirmative defenses, many of
which do not appear to apply. More specifically, Defendants have asserted (a) a statute of
limitations / failure to exhaust administrative remedies defense, (b) a failure to mitigate defense,
(c) a “garden variety” waiver and estoppel defense, (d) an assertion that Plaintiff's requested
disability accommodations were “unreasonable,” and (e) a claim that Plaintiff failed to avail
6 Several of Kim’s comparator employees are male. Further, while some comparators are also
that alone does not defeat Kim’s sex discrimination claim. If Ross maintained a romantic
female,
relationship with one or more female counterparts and extended preferential treatment thereto, such conduct
would amount to unlawful sex discrimination. 29 C.F.R. 1604,11(g); see also, Broderick v. Ruder, 685
F.Supp. 1269 (D.C. Cir. 1988).
16
Sandra Kurt, Summit County Clerk of Courts
CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 17 of 136
herself of AstraZeneca’ corrective or preventative opportunities before she involuntarily left her
position. (See, Defendants’ Answer, Affirmative Defenses 2, 6, 7, 11, 13, and 14.) To date,
Defendants have provided ng factual substance to support any of these defenses.
It is well established that a party is permitted to propound contention interrogatories ~ i.e.,
interrogatories that “ask a party to state the facts upon which it bases a specific claim or defense.”
Advantage Industrial Sys. v. Aleris Rolled Prods., W.D.Ky. No. 4:18-CV-00113-JHM-HBB, 2020
U.S. Dist. LEXIS 136305, at *7 (July 31, 2020). Such questions are “a perfectly permissible form
of discovery,” as they advance the “very legitimate” purpose of ferreting out unsupportable
positions and narrowing the “locus and the extent of discovery.” Id.; see also Cleveland Constr.,
Inc. v, Gilbane Bldg. Co., E.D.Ky. No. 05-471-KSF, 2006 U.S. Dist. LEXIS 53254, at *21 July
31, 2006) (noting that, even in the early stage of litigation, def
Preview
CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 1 of 136 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO KIMBERLY KLEPS, ) CASE NO. CV-2021-09-2905 ) Plaintiff, ) JUDGE KATHRYN MICHAEL ) ¥, ) MAGISTRATE ERICA VOORHEES ) ASTRAZENECA PHARMACEUTICALS, ) PLAINTIFF’S MOTION TO COMPEL LP, ef al., ) DISCOVERY ) Defendants. ) ) Plaintiff, Kimberly Kleps (“Plaintiff” or “Kim”), through counsel, and pursuant to Civ. R. 37, hereby moves for an Order compelling Defendants, AstraZeneca Pharmaceuticals LP (“AstraZeneca”) and Michael Ross (“Ross,” together with AstraZeneca, the “Defendants”), to provide complete answers and produce documents in response to Plaintiff's discovery requests. In derogation of Civ. R. 26’s liberal policy of discovery, Defendants have failed to produce discovery that is critical and relevant to Plaintiff's claims. Plaintiff has exhaustively complied with her duty to attempt to resolve this matter without the Court’s intervention. In addition to the extensive correspondence attached to the Memorandum in Support hereof, Plaintiff s counsel has complied with Page 3 of the Court’s Case Management Order, moved for and attencled an in-person discovery conference, and, at such conference and as directed by the Court, conferred further with Defendants. Since that conference, Defendants have produced no documents or amended responses and, yesterday, delivered an index that (i) attempts to improperly limit their responses to some requests and (ii) refuses altogether to respond to others. Thus, Plaintiff has been forced to involve this Court again through this Motion, and hereby Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 2 of 136 respectfully seeks an Order compelling Defendants to abide by their obligations in discovery and awarding Plaintiff her attorneys’ fees and expenses. A Memorandum in Support is attached hereto and incorporated herein. Respectfully submitted, és/ John FE, Moran John E. Moran (#0087272) jem@mccarthylebit.com Frank T. George (#0097925) fig@mecarthylebit.com McCARTHY, LEBIT, CRYSTAL & LIFFMAN CO., L.P.A. 1111 Superior Avenue, East Suite 2700 Cleveland, Ohio 44114 (216) 696-1422 (216) 696-1210 (facsimile) Attorneys for Plaintiff CERTIFICATE OF SERVICE L hereby certify that on this 2 day of September, 2022, the foregoing Plaintiffs Motion to Compel and Memorandum in Support was filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system. sé John_&. Moran One of the Attorneys for Plaintiff Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 3 of 136 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO KIMBERLY KLEPS, ) CASE NO. CV-2021-09-2905 ) Plaintiff, ) JUDGE KATHRYN MICHAEL ) v. ) MAGISTRATE ERICA VOORHEES ASTRAZENECA PHARMACEUTICALS, ) MEMORANDUM IN SUPPORT OF LP, ef al., ) PLAINTIFI’S MOTION TO COMPEL ) DISCOVERY Defendants. ) ) 1 FACTUAL BACKGROUND A Kim Earns a Promotion to a Specialty Rep Position Kim, an African-American female, has been a successful pharmaceutical sales representative for nearly twenty (20) years. In 2013, Kim’s prior employer merged with AstraZeneca and, upon joining AstraZeneca, Kim continued to earn high performance marks and praise for the next few years. Thus, in 2017, after being recruited internally, Kim sought a promotion to the role of Senior Pharmaceutical Sales Specialist (“Specialty Rep”) — a lucrative specialty sales role promoting the diabetes medication Farxiga, Xigduo-XR, and Bydureon. Despite her record of impressive results and awards, Defendant Ross denied Kim this promotion and instead awarded it to Vara Sumell (“Sumell”), a white woman whom Kim had previously mentored and trained at Ross’s direction. Fortunately, the next year, Kim was finally given her own promotion to a Specialty Rep role. In this new position, Kim was to share the “Akron” sales territory with Sumell, working together to promote AstraZeneca’s diabetes drugs and calling on the same physicians, Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 4 of 136 AstraZeneca’s “Akron” territory is within the “Columbus” district, which was -- during all relevant periods — managed by Ross. Thus, both Kim and Sumell reported directly to Ross, among several other Specialty Reps. While Specialty Reps have many responsibilities, relevant to this action is their obligation to “log” their calls on physicians. More specifically, Specialty Reps input physician visits into AstraZeneca’s “Veeva” tracking software, and — after the visit is complete — finalize the entry to confirm the visit occurred. This is occasionally referred to as “call logging.” B Ross Begins Criticizing Kim’s Performance after She Disclosed Her Health Conditions to Him Shortly after her prornotion, during a “ride-along,”! Kim disclosed to Ross that she suffered from mental health conditions (post-traumatic stress disorder and anxiety). The year earlier, Kim’s family home had burnt to the ground as she, her husband, and children barely escaped. Given that Ross himself had observed the total loss of the home (he had walked through the wrecked property before it was torn down), Kim felt it appropriate to disclose her medical condition to him in the hope that he might be more understanding of time off requests and other accommodations. In response, however, Ross simply told Kim that she could use “vacation days” if she needed them, and was otherwise callous towards Kim’s health. Ross then began documenting a series of criticisms of Kim — sometimes without her knowledge — starting in the Summer of 2018. Often, Ross was fixated on Kim’s call logging, nitpicking her for not logging physician visits within twenty-four (24) hours of those visits occurring. This pattern of denigration was coupled with other instances of hostility and favoritism, like: (1) refusing to release an otherwise-approved $5,000.00 expense reimbursement to Kim, (2) — 1 A “ride-along’ is when an AstraZeneca manager spends a day (or part of day) with a specific Specialty Rep to assess how that representative is performing in the field. 4 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 5 of 136 lambasting Kim for suffering from PTSD symptoms during meetings in January 2019 and April 2019; (3) mandating that Kim support Sumell with Sumell’s job responsibilities so that Sumell could take on other tasks; and (4) forcing Kim to perform a ride-along to West Virginia during a January 2019 blizzard, when all other representatives were permitted to stay home. Kim was alarmed by Ross’s conduct, in large part because his call-logging criticism simply made no sense, Not only had Kim previously earned high marks for performance and compliance, but she also knew that Ross’s other Specialty Reps were, in fact, much worse in their call logging discrepancies (e.g., falsifying calls that never happened) and were not being criticized. For example, while Kim may have occasionally had a visit that took more than a day to log, other Specialty Reps would enter calls weeks, or even a month, after they occurred. According to AstraZeneca records, for example, Griffin Najdovski, a white nondisabled Specialty Rep reporting to Ross, logged sixty percent (60%) of her calls more than two (2) days after they occurred and, during the relevant time period, Ross took absolutely no action against her. Ross’s favoritism for Sumeil was particularly stark. More specifically, Kim noticed that Sumell would enter suspicious physician calls weeks after they supposedly occurred. Based on their dates, these suspicious entries purportedly occurred on the same day that Ross was supposed to be performing a ide-along” with Sumell. Indeed, on or about January 30, 2019, Kim complained to Ross that he was treating her differently than her white and/or nondisabled counterparts. Not only bad Kim noticed disturbing logging discrepancies with Ross and Sumell, she also saw that Ross and Sumell were alarmingly familiar with each other at AstraZeneca mectings and sales events, suggesting that their relationship was more than professional. Despite Kim’s well-founded concerns, Ross was dismissive, claiming to Kim in writing that she was an “outlier” which justified his differential treatment. Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 6 of 136 Cc. Ross Launches a Ridiculous Investigation into Kim’s Call Logging the Sam Day She Begins a Medical Leave of Absence Ross’s discriminatory harassment only aggravated Kim’s mental health struggles, resulting in her seeking a medical leave of absence in July 2019. Kim’s physician completed a medical certification that not only qualified Kim for leave, but also for short-term disability under her insurance policy. Despite these health issues, on the same day that Kim began her leave, Ross contacted AstraZeneca’s human resources department, initiated an investigation into Kim, and began searching for a way to discipline her more harshly. Indeed, from this point forward, Ross tirelessly worked to get Kim fired, going so far as to manually compare Kim’s mileage (from her expense records) with her Veeva call entry, searching the locations of physicians on the Internet, to see if the mileage Kim had submitted matched the miles that Ross’s internet searches reflected between physician offices. Upon information and belief, Ross did not subject any of his other reports to such absurd — and patently inaccurate — inspections. Armed with supposed “discrepancies” between Kim’s mileage records and call entries, Ross convinced human resources representative Linda Abbonizio (‘Abbonizio”) and his supervisor, Fran Bellefeuille, to convene a disciplinary “Opportunity to Respond” meeting with Kim upon her return from medical leave. Ross misled Kim about the purpose of the meeting, giving her no indication that she would be questioned about specific discrepancies from months earlier. Thus, almost immediately after Kim returned rom leave, she was ambushed with a human resources conference call at which she was interrogated about mileage and Veeva entries from nine (9) months earlier. Kim, of course, was not able to remember the specifics of such discrepancies at that moment, but after checking her records and calling AstraZeneca’s fleet management staff, she was able to subsequently explain some of the issues to Abbonizio, At that time, she further complained to Abbonizio that she was being singled out, harassed, and Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 7 of 136 discriminated against by Ross in his biased application of performance expectations as compared to her counterpasts. D AstraZeneca Places Kim on a “Final Written Warning” One Month after She Returns from Medical Leaye Abbonizio did nothing to address Kim’s complaint. Instead, on November 8, 2019, Ross continued his harassment by placing Kim on a Final Written Warning (“FWW”). Per AstraZeneca policy, Ross’s imposition of a FWW precluded Kim from (i) receiving her considerable bonus compensation, Gi) seeking promotional positions in the company, or (iii) participating in any rewards programs. In support of the FWW, and despite the wildly discriminatory way in which he was imposing such expectations, Ross focused almost exclusively on call logging discrepancies (Le., that Kim retroactively logged her sales calls, rather than doing so in real-time). Following several calls with Abbonizio, Kim sent correspondence and supporting data to Abbonizio recounting the facts and noting her concerns related to unlawful discrimination and retaliation. She explained that she believed Sumell was afforded special treatment because of her relationship with Ross. She also explained that she felt she had been treated worse than her coworkers because she suffered from PTSD and took leave. Despite Kim's additional efforts, AstraZeneca did nothing to address the discriminatory treatment or rescind the FWW so that Kim was not punished unfairly. Thus, on December 13, 2019, Kim emailed Senior Employment Practices Partner Kelly Antonietti (“Antonietti”) and expressed an intention to resign. Kim noted that AstraZeneca had, in retaliation for her complaints, demoted her and cut her pay by issuing an FWW that prevented her from receiving bonus compensation she had otherwise earned. In response, Antonietti promised to complete an investigation into Ross’s conduct by December 20, 2019, and asked Kim to reconsider her resignation until that date. Kim thus agreed to withdraw her resignation. Despite Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 8 of 136 her promises, however, Antonietti later told Kim that the investigation would not be completed until sometime in 2020, meaning Kim would have to work through 2019 and into 2020 with no assurance that a significant part of her compensation would be paid. Thus, Kim resigned on December 31, 2019, explaining that she felt compelled to resign due to Ross’ mistreatment. Il. PLAINTIFF HAS COMPREHENSIVELY SATISFIED HER MEET AND CONFER OBLIGATIONS Following the filing of this action’, and to explore the above-presented factual and legal issues, Plaintiff issued her First Combined Discovery Requests on November 15, 2021. Immediately upon receipt, Defendants sought a one-month extension of time to respond, Out of professional courtesy, Plaintiff agreed. (See, November 23, 2021 email, attached hereto as Exhibit 1.). In the meantime, Plaintiff's counsel initiated Rule 26 discussions to make progress in the case. As part of these discussions, Plaintiff anticipated that Defendants may have confidentiality concerns, and sent a proposed Stipulated Protective Order (the “SPO”) to Defendants’ counsel on November 12, 2021. Plaintiff followed up on the SPO on December 2, 2021. (See, December 2, 2021 email, attached hereto as Exhibit 2.). Plaintiff has never received a substantive response to that proposal. While affording Defendants additional time, Plaintiffs counsel also attempted to preempt any potential obstacles to a fulsome production of discovery. Thus, on December 6, 2021, Plaintiff's counsel asked Defendants’ counsel if there would be any concerns related to the production of electronically-stored information (“ESI”). Defendants’ counsel replied by email that Defendants agreed to raise any ESI concerns — if they had them — in advance of Defendants’ production of responses. (See, December 6, 2021 email, attached hereto as Exhibit 3.) 2 Prior to filing this case on September 15, 2021, Kim filed a Charge of Discrimination with the Equal Employment Opportunity Commission, which then issued a “right to sue” letter. 8 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 9 of 136 On January 7, 2022, Defendants sought yet another extension of time via email. By written reply, Plaintiff agreed to this extension with a few conditions; including that Defendants (a) get any needed SPO in place immediately and (b) raise any ESI concerns within the following week. Defendants agreed to these terms. (See, January |0,2022 email, attached hereto as Exhibit 4.) Defendants produced twenty (20) pages later that month, with no written responses, but the production revealed little except that Defendants were still withholding many of the underlying 3 documents related to the cas On February 8, 2022, Defendants sought yet another two-week extension of time to respond. Even then, once that time period expired, Defendants sought yet another extension of time. (See, February 8, 2022 and February 25, 2022 emails, attached hereto collectively as Exhibit 3.) At this point, Plaintiff's counsel insisted that a production be made, lest he need to involve the Court. (Id.) Once the Court’s involvement was raised, Defendants finally provided written responses to the requests on March 11, 2022. (See, Defendants’ Written Answers and Responses to Plaintiff's First Combined Discovery Requests, attached hereto as Exhibit 6.) Unfortunately, Defendants’ production was woefully insufficient and, for the first time, raised ESI concerns and confidentiality matters, despite Plaintiffs exhaustive efforts to avoid this exact situation. Nevertheless, Plaintiff persevered in attempting to meet and confer. After painstakingly reviewing Defendants’ many written objections, combined with its minimal document production, Plaintiff's counsel prepared a detailed, 21-page letter outlining the deficiencies in Defendants” production. (See, May 17, 2022 letter, attached hereto as Exhibit 7.). Plaintiff followed up for a 3 For example, Defendants produced a human resources “snapshot” of their investigation into Plaintiff's complaints of harassment, but that “snapshot” document made reference to text messages, other communication, interview questions, and interview responses, none of which was produced. Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 10 of 136 response to the letter on May 26, 2022, but Defendants ignored it. (See, May 26, 2022 email, attached hereto as Exhibit 8.) Earnestly attempting to avoid having to bother the Court on discovery matters, Plaintiff next convened a June 8, 2022 telephone conference with Defendants’ counsel to try to work out these matters. During that call, Defendants agreed that deficiencies would be addressed and that a supplementation was forthcoming. Between that call and the telephone conference with the Court on June 21, 2022, however, Defendants did not produce anything. Thus, on that date, Plaintiff insisted that Defendants supplement their discovery production by no later than July 8, 2022. (See, June 21, 2022 email correspondence, attached hereto as Exhibit 9.) On July 7, 2022 — the day before the deadline — Defendants’ counsel wrote an email to Plaintiff's counsel that produced nothing. Instead, it merely proposed to produce some discovery. Plaintiff's counsel insisted that Defendants’ full supplementation be made by July 14, 2022, (See, July 7, 2022 email, attached hereto as Exhibit 10.). Unfortunately, Defendants did not fully and timely supplement for even those categories they had unilaterally chosen. As a result of this conduct, Plaintiff was left with no choice but to file her July 29, 2022 Notice of Discovery Dispute and Motion for In-Person Discovery Conference, in compliance with this Court’s Case Management Order. The Court set a hearing for August 18, 2022. A few days before the hearing, Defendants’ counsel began fervently attempting to postpone the hearing, but was unable throughout this time to commit to any specific timetable for production or to identify what categories of requested information were still in dispute. (See, August 12, 2022 ~ August 16, 2022 correspondence, attached hereto as Exhibit 11.) At the conference itself, the Court encouraged counsel to adjourn to the Jury Room and confer even further. Plainti!l’s counsel complied and discussed Defendants’ production with their 10 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 11 of 136 counsel for over ninety (90) minutes. Despite yet another attempt to hone in the issues, Defendants* counsel was still ~ even at the conference — unable to articulate what categories of requested information were still in dispute. Instead, Defendants’ counsel asked for even more time to discuss the discovery with their clients. Thus, at the hearing, the Court memorialized an agreement, on the record, that Defendants would provide Plaintiff's counsel with an index of those categories of discovery that Defendants agreed to produce, and those categories Defendants opposed producing, by or before September 1, 2022. The afternoon of September 1, Defendants asked for additional time to produce the “index.” Plaintiff declined. Thus, Defendants finally produced the “index” at 4:25 pm yesterday. (See, September 1, 2022 Index, attached hereto as Exhibit 12.) While the index commits Defendants to produce some answers and discovery, it suffers from two flaws. First, for some categories of requests, Defendants have improperly restricted the range of documents and information they are willing to produce. Second, Defendants have inappropriately refused to produce entire categories of information that are wholly relevant and discoverable in this case. Plaintiff will address both issues below. TIE. LAW AND ARGUMENT Under the Ohio Rules of Civil Procedure, the scope of discovery is liberal. Civ. R. 26(B)(1) provides: Parties may obtain discovery regarding any matter, not privileged, whichis relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location ofany books, documents, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. 11 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 12 of 136 As explained below, the information sought by Plaintiff falls well within the scope of Civ. R. 26(B)(1). Nevertheless, Defendants have refused to permit such discovery.4 Thus, Plaintiff hereby moves for an Order compelling responses to the following requests under Civ. R. 37, by or before September 30, 2022. A The Court Should Reject Defendants’ Attempts to Improperly Restrict the Scope of Plaintiff's Requests L Defendants Must Be Compelled to Produce the Statements in Their Possession, Custody, or Control Related to This Dispute (Interrogatory No. 12 and Document Request No. 31) Interrogatory No. 12 and Document Request No. 31 seek information regarding, and copies of, any statements that Defendants have obtained associated with the facts underlying this case. Defendants’ production to date makes clear that they are in possession of written statements from AstraZeneca employees (and perhaps others) related to, infer alia, Ross’s relationship with Sumell, Ross’s discriminatory treatment towards Kim, and Ross's failure to enforce the same performance expectations on Sumell and Kim’s other counterpart Specialty Reps. For example, human resources professional Abbonizio prepared a “Case Snapshot” for one of Kim’s complaints regarding Ross’s treatment. (See, Snapshot for Case US-41907, attached hereto as Exhibit 13.) The snapshot shows that AstraZeneca interviewed employees and learned that (i) Ross is not even- handed in his treatment, (ii) Ross assisted Sumell in her job where he did not for others, and (iti) Sumell admitted to entering lalse logs into the Veeva software. If such information (or other, related information) is reduced to a statement, Plaintiff should be permitted to see it. 4 Certain requests relate to the disclosure of documents to be used at trial as exhibits or expert witnesses (Interrogatory Nos. 15-18, Document Requests 32 and 35). Defendants have objected and asserted that they will make sure disclosures only in accordance with the Court’s deadlines. In deference to those deadlines, Plaintiff will reserve her right to address those requests until later and as necessary. 12 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 13 of 136 To date, all Defendants have said in response to these requests is that they have no “affidavits.” Of course, this is only part of Plaintiff's inquiry. Plaintiffs requests for “statements” encompasses more than fully-sworn affidavits, and Defendants should be required to respond to the entire requests. Bolstering Plaintiff's concern regarding potentially withheld statements is that Defendants’ current responses assert privilege and work product objections. Yet, in violation of Civ.R 26(B)(8)(a), Defendants have not produced any privilege log or made any effort to explain how a privilege or work product objection even applies here. With respect to statements, this failure alone operates as a waiver of Defendants’ ability to rely on such objections, as it would be simple enough for Defendants to inventory the statements in their possession so that their claim of privilege could be tested. Zita! Quality Logistics, LLC v. BBI Logistics LLC, 12" Dist. Clermont No. CA2021-04-012, 2022-Ohio-1440, 423. Putting that waiver aside, such privileges cannot be used “at once as a shield and a sword.” Ross v. City of Memphis, 423 F.3d 596, 604-05 (6" Cir, 2005). Defendants cannot rely on information in supposedly-privileged statements to compile HR “Case Snapshots,” but then withhold documents underlying those summaries, Jd. Defendants must be ordered to produce the requested information related to statements. Because This Case Arises from Ross’s Pretextual Criticism of Kim’s Job Performance, Plaintiff Is Entitled to Discovery Related to the Performance of All AztraZeneca Employees within the Columbus District (Document Request Nos. 7-8 and 11-12) As explained above, this dispute arises from Ross’s discriminatory fixation on Kim’s performance. Ross’s unfair obsession with Kim resulted in (i) his initiation of a bizarre call logging “investigation” at the start of Kim’s medical leave, (ii) the removal of Kim’s bonus and other compensation, and (iii) Kim’s forced resignation. Thus, the legality of Ross’s unique concentration on Kim’s performance ~ and his lack of any focus on his other reports — is a central 13 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 14 of 136 part of this case, and any evidence that white, male, and/or non-disabled “similarly-situated comparators” were treated better than Kim is plainly relevant. In order to explore this issue, Plaintiff must discover the specifics of how those comparators were performing. bh Defendants Have Agreed to Produce Records, but that Production Ts Incomplete In light of the above, Document Request No. 7 seeks the personnel files, discipline records, performance evaluations, and other information for any Specialty Reps that worked in the Columbus District ftom January 1, 2017 through June 2020. Document Request Nos. 8, 11, and 12 seek the Field Coaching Reports, mileage records, and call logging activity reports for the same population of employees. These are the exact categories of documents that formed the basis of Ross’s criticism of Kim, and Plaintiff seeks them for the same relevant time period. For the first time yesterday, Defendants finally appeared to agree that these categories of documents are discoverable. (See, Exhibit 12, response to Requests, 7-8, 11-12.) Unfortunately, in agreeing to produce these documents, Defendants are still attempting to unfairly restrict their production by providing only the records for only a limited population of Kim’s coworkers. (Id.) In their agreement to produce, Defendants did not include Danielle Mancini, Brian Bottger, or Genell Zink Ritley among the coworkers in the Columbus District whose records would be produced. Thus, Defendants should be compelled to produce records for these employees, as well, a. Plaintiff Is Entitled to Records for All of Kim’s Comparators To be sure, Plaintiff's request for these records is entirely appropriate given the nature of this case. Job performance — including that of Kim’s counterpart coworkers ~ is a pivotal issue, as part of a plaintiff's prima facie discrimination case is a showing that similarly-situated employees were treated more favorably. See, e.g. Wolffram v. Sysco Cincinnati, LLC, S.D. Ohio No. 12cv961, 2015 U.S. Dist. LEXIS 65314, *8 (May 19, 2015); Dukes v. Associated Materials, 44 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 15 of 136 LLC, 9" Dist. Summit No. 27091, 2014-Ohio-4322, €7,.° This evidence is not only relevant to the prima facie case, but also to “pretext” — that is, evidence that the employer’s explanation for its treatment of the plaintiff is false. For example, pretext is shown by evidence that “other employees, particularly employees outside the protected class, were not disciplined even though they engaged in substantially identical conduct to that which the employer contends motivated its discipline of the plaintiff.” Charttman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6" Cir. 2012). Because this is textbook discrimination evidence, time and again appellate courts have reversed decisions that limited the plaintiff's ability to conduct discovery on the performance of counterpart employees. See, ¢.g. Bobo v. UPS, 665 F.3d 741, 751-52 (6" Cir, 2012) (lower court’s refusal to force defendant to produce comparator evidence necessitates reversal of summary judgment); see also Louzon v. Ford Motor Co., 718 F.3d 556 (6" Cir. 2013 (reversing lower court’s liminal ruling on evidence of comparator employees). Defendants’ restriction of the poo! of comparators, as described above, is inappropriate. In evaluating who is a “comparator” employee, courts generally look to those employees who dealt with the same supervisor, were subject to the same standards, and who engaged in the same conduct. Lowzon, 718 F.3d at 563; Bobo, 665 F.3d 741, 751; Mitchell y, Toledo Hosp., 964 F.2d 577, 583 (6" Cir. 1992). Mancini, Botiger, and Ritley all easily qualify under this definition, as they each worked as representatives in Columbus District, reporting to Ross, during the relevant time period. Defendants must be compelled to produce responsive records for all Specialty Reps who worked in the District managed by Ross from January 1, 2017 through December 31, 2019. B Defendants Should Not Be Permitted to Refuse or Further Delay the Production of Discoverable Information 3 Federal case law interpreting federal employment civil rights statutes generally applies to claims under Ohio Revised Code Chapter 4112. Johnson v. Cleveland City Sch. Dist., 8 Dist. Cuyahoga No. 94214, 2011-Ohio-2778, 54; Smith v. Allstate Ins. Co., 9 Dist. Summit No. 29339, 2019-Ohio-4557, (21. 15 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 16 of 136 1 Defendants Should Provide the Sex and Race of the Individuals Central to this Sex and Race Discrimination Case (Interrogatory Nos. 6 and 9) In a case alleging discrimination on the basis of sex® and race, the sex and race of the relevant decision-makers, comparators, and other central actors is clearly relevant. For example, when a decision-maker is the same sex or race as the plaintiff, a different prima facie case may apply. See, e.g. Zambeiti v. Cuyahoga Cmty. College, 314 F.3d 249, 255 (6" Cir, 2002). In other instances, the race or sex of a relevant actor gives rise to an assertion of the “same group inference.” See, e.g., Wexler v, White's Fine Furniture, 317 F.3d 564, 574 (6" Cir. 2003), Defendants claim that they will produce documents in response to Interrogatory No. 6, and they cite to their Initial Disclosures in response to Interrogatory No. 9 — both requests that seek the identity, sex, and race of decision-makers, central actors, and people with knowledge. But the documents and disclosures cited by Defendants do not include the sex and/or race of the individuals involved. Defendants must be required to respond to these interrogatories with the sex and race information. 2 Having Asserted Affirmative Defenses in Their Answer, Defendants Must — at a Minimum — Be Required to Disclose the Facts Supporting Those Defenses (Interrogatory Nos. 23, 24, and 25) Interrogatories 23, 24, and 25 seek the facts upon which Defendants assert certain affirmative defenses, Defendants have alleged a cornucopia of affirmative defenses, many of which do not appear to apply. More specifically, Defendants have asserted (a) a statute of limitations / failure to exhaust administrative remedies defense, (b) a failure to mitigate defense, (c) a “garden variety” waiver and estoppel defense, (d) an assertion that Plaintiff's requested disability accommodations were “unreasonable,” and (e) a claim that Plaintiff failed to avail 6 Several of Kim’s comparator employees are male. Further, while some comparators are also that alone does not defeat Kim’s sex discrimination claim. If Ross maintained a romantic female, relationship with one or more female counterparts and extended preferential treatment thereto, such conduct would amount to unlawful sex discrimination. 29 C.F.R. 1604,11(g); see also, Broderick v. Ruder, 685 F.Supp. 1269 (D.C. Cir. 1988). 16 Sandra Kurt, Summit County Clerk of Courts CV-2021-09-2905 MICHAEL, KATHRYN 09/02/2022 14:32:01 PM PPEL Page 17 of 136 herself of AstraZeneca’ corrective or preventative opportunities before she involuntarily left her position. (See, Defendants’ Answer, Affirmative Defenses 2, 6, 7, 11, 13, and 14.) To date, Defendants have provided ng factual substance to support any of these defenses. It is well established that a party is permitted to propound contention interrogatories ~ i.e., interrogatories that “ask a party to state the facts upon which it bases a specific claim or defense.” Advantage Industrial Sys. v. Aleris Rolled Prods., W.D.Ky. No. 4:18-CV-00113-JHM-HBB, 2020 U.S. Dist. LEXIS 136305, at *7 (July 31, 2020). Such questions are “a perfectly permissible form of discovery,” as they advance the “very legitimate” purpose of ferreting out unsupportable positions and narrowing the “locus and the extent of discovery.” Id.; see also Cleveland Constr., Inc. v, Gilbane Bldg. Co., E.D.Ky. No. 05-471-KSF, 2006 U.S. Dist. LEXIS 53254, at *21 July 31, 2006) (noting that, even in the early stage of litigation, def